Defamation - test of serious harm

The Supreme Court has recently handed down its long-awaited judgment in Lachaux -v- Independent Print Ltd [2019] UKSC 27. The case arose out of five articles published by three newspaper publishers between January and February 2014. To put the case in context it is useful to review what happened at each stage on the way to the Supreme Court.
 

First instance decision - Lachaux -v- Independent Print Ltd [2015]

The claimant, Mr Lachaux, was a French national living and working in the UAE. In early 2014, a series of five articles were published by various outlets in which allegations of domestic abuse were intimated against him. Mr Lachaux brought libel claims against each of the publishers and so it fell to the court to decide whether publication of the allegations satisfied the ‘serious harm requirement’ laid down by section 1(1) of the Defamation Act 2013 (the Act). In other words, had
publication caused or was it likely to cause serious harm to Mr Lachaux’s reputation.

In determining this point, the court had to first decide what Mr Lachaux was required to prove in order to meet the serious harm requirement. Was it:

1. that the words were likely to cause harm to his reputation; or
2. that on the balance of probabilities, serious harm to his reputation had been caused or was likely to becaused.

The court then had to determine whether it could take account of other publications to the same or similar effect as the material complained of when deciding whether that material had caused serious harm.

Decision

It was concluded that a statement was not defamatory unless the claimant could prove that it was more likely than not that it had caused or would cause serious harm to their reputation. In deciding this point, a court may give regard to all the relevant circumstances, including evidence of what actually happened following publication. Serious harm can, therefore, be proved by inference if the evidence justifies it.

The court also turned its attention to the question of the point in time from which a statement can be judged ‘likely to’ cause serious harm: from when the claim is issued or from the time at which the issue is determined. The court preferred the latter approach.

On the issue of whether previous publications could be used as evidence to reduce damages for injury to reputation, the court held that the rule in Associated Newspapers Ltd -v- Dingle [1964] AC 371 remained binding. This meant that while a defendant can mitigate damages awarded against them by demonstrating that a person has a bad reputation, they cannot rely on other publications as evidence of this.

Court of Appeal - Lachaux -v- Independent Print Ltd [2017]

The publishers subsequently appealed against the findings that their articles involved publication of defamatory statements which had caused or were likely to cause Mr Lachaux serious harm. Mr Lachaux also appealed arguing that the judge should have concluded that the articles were defamatory by simply applying the serious harm test at the date of publication. This would have removed the need for Mr Lachaux to give detailed evidence of harm suffered.

The defendants’ appeal was rejected with the Court of Appeal agreeing that the High Court judge had been correct to rule that Mr Lachaux had satisfied the ‘serious harm’ test. It was noted, however, that while the result was the same in this case, the approach adopted in the High Court had not been in accordance with that intended.

Findings

The Court of Appeal set out its findings in paragraph 82 of the judgment. The key points were that:

1. Section 1(1) of the Act built upon cases such as Thornton -v- Telegraph Media Group Ltd [2010] EWHC 1414 (QB). This is despite the fact that in Thornton, Tugendhat J refers to a ‘tendency’ to cause substantial harm, while section 1(1) refers to whether the words are ‘likely to cause’ serious harm. It was concluded that for the purposes of section 1(1) the words ‘likely to cause’ may be taken as connoting a tendency to cause serious harm which raises the threshold for libel claims from ‘substantial’ to one of ‘serious’.
2. The common law presumption as to damage in cases of libel had not been abolished, and a raised threshold of harm remained compatible with the presumption of damage. Likewise, the common law principle that the cause of action accrues on the date of publication remained good law, as this is the point at which harm to reputation usually occurs. As a result, the established position as to limitation and the common law objective single meaning rule were also unaffected dby section 1(1) of the Act.
3. Issues as to the meaning of a statement can be resolved at a preliminary issue hearing. If there are further issues as to serious harm, then it may also be appropriate to deal with this at a preliminary issue hearing. If the meaning is deemed seriously defamatory, an inference of serious reputational harm can usually then be drawn. Once that threshold is reached, further evidence will most likely be relevant to quantum and any continuing dispute should ordinarily be left to trial.
4. A defendant disputing the existence of serious harm may apply for summary judgment or to strike out the claim as an abuse of process if the circumstances warrant.

Supreme Court - Lachaux -v- Independent Print Ltd [2019]

Following the Court of Appeal decision one of the publishers settled with Mr Lachaux, however, the other two appealed to the Supreme Court against the finding of serious harm.

Judgment

The Supreme Court unanimously dismissed the appeal and found that the test of serious harm had been met.

It was held that section 1 of the Act not only raises the threshold of seriousness from that in Jameel and Thornton, but requires its application to be determined by reference to the actual facts about its impact, not merely the meaning of the words. It was stated on the basis that:

1. the Act undoubtedly amends the common law to some degree, so the least that section 1 achieved was to introduce a new threshold of serious harm which did not previously exist
2. section 1 necessarily means that a statement which would previously have been regarded as defamatory, given its inherent tendency, is no longer actionable unless it ‘has caused or is likely to cause’ harm which is ‘serious’
3. section 1(1) must be read with section 1(2). Section 1(2) deals with how section 1(1) is to be applied to defamatory statements in relation to a body trading for profit. It adopts the ‘serious harm’ requirement, but provides that for such a body the statement must have caused or be likely to cause ‘serious financial loss’. As such, for trading bodies, the ‘financial loss’ in section 1(2) is the measure of the ‘harm’ referred to in section 1(1), not special damage as understood in the law of defamation. It must exceed the pre-2013 Act threshold of seriousness. This requires an actual impact analysis.

Comment

The implications of the Supreme Court’s decision will no doubt be to generate additional costs to litigants and an increase in the number of expensively contested hearings regarding the extent to which it may be possible for the claimant to demonstrate that a particular publication has caused or is likely to cause serious harm to his reputation. The main effect of the introduction of the new threshold of seriousness will lead to an increase in argument, correspondence and costs.

Despite this, the Supreme Court’s decision is a welcome clarification of an area of the law where the case law to date has been uncertain and contradictory. The Supreme Court has clarified that the date of publication is the date on which the claimant’s reputation is harmed (although evidence of subsequent actual harm may be admitted at trial).