Court of Appeal Refuses Appeal in Mohamed Amersi Defamation Case, Highlighting Importance of Serious Harm Requirement

Citation: [2023] EWCA Civ 1468
Judgment on

Introduction

In the recent appellate decision of Mohamed Amersi v Charlotte Leslie & Anor, the Court of Appeal (Civil Division) was tasked with evaluating whether to grant permission for an appeal in a defamation case. The case raised pivotal legal questions concerning the interpretation of the serious harm requirement under s 1(1) of the Defamation Act 2013, as well as the consideration of “Slipper” damages in the context of reputational harm. This article provides an analysis of the legal principles applied in the case and explicates the Court of Appeal’s rationale behind its decision.

Key Facts

Mohamed Amersi, the claimant, initiated a libel action regarding 16 publications (“the Memos”) by the defendants, alleging 22 defamatory imputations. While the claimant could identify some recipients of the Memos, not all were known. The publications were made to individuals linked to the Conservative Party. The Particulars of Claim were stricken by Mr Justice Nicklin on the grounds of failing to plead a reasonable case for the claim of reputational harm as demanded by the Defamation Act 2013. The claimant sought permission from the Court of Appeal to contest this determination.

Serious Harm Requirement

One of the foremost issues in this case revolved around the “serious harm” requirement as stipulated by s 1(1) of the 2013 Act. To succeed in a defamation case, a claimant must demonstrate that the publication of a statement caused or is likely to cause serious harm to their reputation. The Court of Appeal contemplated whether this requirement must be satisfied separately for each individual publication or whether an aggregate approach could be adopted – assessing the collective impact of the same or substantially the same statements.

Individual Publication vs. Cumulative Impact

The claimant argued for the latter, suggesting entitlement to aggregate the harm caused by multiple publications of the same or substantially the same statement. However, the claimant’s own pleadings did not align with this approach, instead citing multiple publications, each with separate defamatory statements and impacts. The Court iterated the prime importance of the claimant’s pleadings in defamation law, which necessitate a clear identification of each defamatory statement presented in a libel suit.

”Slipper” Damages

The issue of “Slipper” damages, named after Slipper v BBC, related to damages awarded for harm caused by republication of the defamatory statement by initial publishees to third parties. The court clarified that such damages cannot be claimed if the original publication itself was not proven to cause serious harm to the claimant’s reputation as per the threshold set by s 1(1).

Judicial Approach to Amendment Applications

In the context of amendment applications, a claimant must show, with evidence, that the proposed amended plea would be tenable at trial. This includes an obligation to plead a coherent case that demonstrates a real prospect of success as per the Defamation Act 2013 and the CPR Part 53 Practice Direction, particularly regarding the serious harm test.

Outcomes

The Court of Appeal, maintaining fidelity to judicial restraint, found no grounds to permit an appeal. The claim did not exhibit a real prospect of success based on the current pleadings or the evidence submitted. Moreover, considering the extensive consumption of court resources already incurred and the absence of a properly pleaded case on the claimant’s part, a further opportunity to amend was not granted.

Conclusion

The Court of Appeal’s refusal to permit an appeal illustrates the crucial importance of plaintiffs complying strictly with statutory requirements for defamation claims, particularly the serious harm requirement under s 1(1) of the Defamation Act 2013. Additionally, the case underscores the judiciary’s meticulous adherence to established legal principles in defamation, including the individual assessment of defamation claims and a cautious approach towards cases involving potentially extensive utilization of court resources. This decision serves as a poignant reminder for legal professionals of the significance of precise pleadings and the burden of proof in defamation actions.

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