July 5, 2016

Mr Justice Warby has said, obiter, that the court must be alert to the costs risks in considering the “serious harm” test in defamation proceedings.

Dismissing a claim for defamation at trial, Warby J referred, at the end of his judgment, to His Honour Judge Moloney QC’s comments made at the end of his judgment on the preliminary issues in the case, in which he had expressed concern at the risk of costly preliminary issue trials on “serious harm” becoming the norm.  Warby J said that he respectfully agreed with HHJ Moloney that the court must be alert to the costs risks.

Warby J said that individual claimants faced with what they see as unmeritorious applications for preliminary issue trials of this kind might consider seeking summary judgment on the issue, as Judge Moloney suggested.  Warby J noted that it is not clear how many cases have involved a “serious harm” trial followed by a full trial on the merits, but suggested that the best solution to the risks involved might be the introduction of early costs budgeting.  (Sam Theedom v Nourish Trading Ltd [2016] EWHC 1364 (QB) (15 June 2016) — to read the judgment, click here).