The law presumes that an individual has a reputation that is capable of being damaged. The burden is therefore not on the claimant to adduce evidence of their own good reputation. The burden is on the defendant to instead rebut such a presumption.
The serious harm requirement in defamation proceedings requires proof that a publication has or is likely to cause serious harm to a claimant’s reputation. The state of a claimant’s pre-existing reputation is therefore a relevant matter. This was an argument heavily relied upon by the Defendant in the below case.
Case background
The Claimant in this case pursued a defamation claim in respect of an article published in the May 2023 edition of BusinessF1 Magazine and online. The article was titled “The biggest ‘wrong-un’ in sport” (Article).
The First Defendant is the editor of the Second Defendant and wrote the Article. The First Defendant admitted to publishing the Article and accepted that it had a defamatory meaning at common law. The Defendants’ principal case was that the Claimant had such a bad reputation prior to the publication of the Article that it was incapable of sustaining any serious harm.
In support of his position the Defendant relied on 3 points:
(1) an interim survey that he carried out;
(2) two reported civil cases in which the Claimant was the Defendant; and
(3) the Claimant’s decision not to rely on evidence from his wife.
In the interim survey, the Defendant had spoken to 20 people aged between 50 and 70 at the Chelsea FC ground and asked them 7 questions about the Claimant. The Judge felt he could not put any real weight on this as there was no evidence that the individuals who had responded to the survey were readers of the magazine or that they were likely to share the same knowledge and beliefs as readers of the magazine. The survey therefore had little relevance to the claim.
The two reported civil cases did make findings about the Claimant’s conduct in a sector of his life that was addressed in the Article (i.e. his ownership and control of football clubs). However, the defamation case was 14 years old when the Article was first published and the harassment claim was 8 years old. The Judge commented that neither of the reported cases came close to the serious allegations made in the Article and therefore, they did not establish the Claimant had a bad reputation incapable of being damaged by the publication of the Article.
The Defendant asked the Judge to draw an adverse inference from the Claimant’s decision not to call his wife to give evidence. The Defendant argued that the Judge should infer that, had she given evidence, she would have been forced to admit that the Claimant had no reputation capable of being harmed. The Judge refused to draw this inference. A solicitor had filed a witness statement in July 2024 confirming that Mrs Bates was no longer fit to give oral evidence. It was therefore reasonable for the Claimant not to call his wife.
The Judge ultimately determined that the Defendants’ case on pre-existing bad reputation had failed for the reasons set out above. He went on to consider the issue of serious harm and confirmed that he was satisfied that, on the balance of probabilities, the publication of the Article had caused serious harm to the Claimant’s reputation.
The Defendants were ordered to pay damages to the Claimant in the sum of £150,000 and an injunction was granted restraining the Defendants from publishing the same or similar allegations in the future.
Comment
This case is a helpful reminder of the importance of a Claimant’s pre-existing reputation in defamation proceedings. The burden is on the Defendant to rebut the usual presumption and accordingly, sufficient and extensive evidence should be provided in support of such a position before embarking on such a risky defence.
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