In a recent judgment in Bates v Rubython and BusinessF1 Magazine, the Court tackled key issues in defamation law, particularly focusing on how reputational harm is assessed and what evidence can be used to counter claims of serious harm under the Defamation Act 2013 (DA 2013). This case is significant for its practical implications on how reputational damage is proved, the admissibility of surveys and prior judgments, and how defendants can (or cannot) introduce evidence of a claimant’s prior bad reputation.
Background
Bates v Rubython & Anor [2024] EWHC 2706 (KB)
The claimant, a businessman with a long career in industry and football club ownership, was the subject of a defamatory article published by BusinessF1, a sports and motor racing magazine. The article contained serious allegations, including claims of dishonesty, fraud, and involvement in multiple murders—allegations with severe implications for the claimant’s personal and professional reputation.
The article was read by an estimated 9,000 readers, most likely individuals with an interest in the sports industry. The claimant sued for libel but faced a defence from the defendants who argued that the claimant had a bad reputation before the publication of the article, and that the article did not cause serious harm to his reputation.
Key legal issues
Rather than attempting to justify the allegations as true (which would have been a defence under the DA 2013), the defendants’ case relied on two points:
- The claimant already had a bad reputation, and thus the publication didn’t cause serious harm; and
- The claimant failed to prove the serious harm to his reputation as required by section 1 of the DA 2013.
The pleading of pre-existing bad reputation
The defendants sought to demonstrate that the claimant’s reputation was already tarnished prior to the publication of the article. They introduced a survey of public opinion about the claimant and referenced prior adverse civil judgments, arguing that these facts showed the claimant’s reputation was already harmed.
However, the Court ruled that the survey conducted by the defendants was insufficient. It was not representative of the individuals who would have read the article, and therefore, it couldn’t be considered relevant to proving the publication didn’t cause harm. The prior civil judgments, although they mentioned the claimant unfavourably, were too old and not directly connected to the allegations in the article to be significant in proving the defence.
Inferential case of serious harm
The claimant did not provide direct evidence of how the article affected his reputation, instead relying on inferences drawn from the nature of the allegations and his status as a public figure, particularly within the sports world. The Court accepted this inferential approach, acknowledging that the seriousness of the allegations, alongside the claimant’s prior public profile, provided a strong case for serious harm to his reputation, even though he hadn’t lived in the UK for two decades.
Strike-out application and relevance of evidence
The Court also addressed the defendants’ evidence, striking out parts of their witness statement that contained hearsay and unsubstantiated claims intended to suggest that the allegations might be true. Referring to the Burstein rule, the Court clarified that defendants who do not plead a truthful defence cannot rely on such evidence to imply the truth of the allegations being made.
Damages and conduct
Given the extreme nature of the allegations and their likely impact on the claimant’s reputation, the Court awarded substantial damages of £150,000. This figure was influenced by the gravity of the defamation, as well as the defendants’ conduct during the proceedings, which included publishing misleading edited versions of pre-action correspondence and suggesting the allegations were true without providing a valid defence.
The Court also made clear that non-compliance with Court orders, such as the refusal to provide a list of subscribers to BusinessF1 magazine (which the defendants argued would violate data protection laws), would lessen the defendants’ position. The Court ruled that the Defamation Act 2013 did not prevent such disclosure, and the defendants’ failure to comply only worsened their position.
Practical implications
1. The importance of proving serious harm:
This case reinforces the critical importance of proving serious harm to reputation under section 1 of the DA 2013. Even in the absence of direct evidence, an inferential case can succeed, particularly if the claimant is a public figure with a significant reputation in the relevant sector.
2. Pleading pre-existing bad reputation:
Defendants attempting to rely on a prior bad reputation must ensure that the evidence is directly relevant to the specific allegations made in the publication and the audience to whom the publication was directed. Surveys and prior judgments must be recent and specifically linked to the defamatory claims.
3. The role of conduct:
The case highlights that a defendant’s conduct throughout proceedings can significantly impact the damages awarded. Non-compliance with Court orders or misleading behaviour can worsen the situation, leading to higher damage awards.
4. Data protection laws in defamation cases:
The decision clarifies that the Data Protection Act 2013 does not prevent parties from disclosing subscriber lists if required by a Court order. This is an important ruling for future defamation cases where disclosure of such information could be crucial.
Comment
Bates v Rubython and Business F1 Magazine provide valuable insights into the application of defamation law under the Defamation Act 2013, particularly in cases involving public figures and serious allegations. The case serves as a reminder that even if a defendant does not attempt to justify the truth of defamatory statements, they must still provide a robust defence, and failing to do so—along with frustrating the case through non-compliance with Court orders—can have serious consequences in terms of damages. The judgment also emphasises that defamation cases can succeed based on inferential evidence of harm, particularly when the claimant has a prominent public profile.
How can we help?
Amrik Basra is a Trainee Solicitor in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the above subject, please contact Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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