In clarifying the meaning of the “serious harm” requirement in section 1 of the Defamation Act 2013, a recent case, Lachaux v Independent Print Ltd & Ors [1], has highlighted some potentially serious hurdles for defamation claimants. Gwendoline Davies and Matthew Chapman share their practical tips for anyone considering or facing defamation litigation.

New Statutory Test

The Defamation Act 2013 (the Act) came into force in January 2014. Whilst there has so far been relatively little case law on some of the key provisions, there is little doubt that the Act represents a narrowing of the scope to bring defamation claims, and therefore a move away from a perceived claimant-friendly culture. Previously, the common law meant that a judge would decide whether any particular statement was defamatory largely by reference to whether or not the words used had a defamatory tendency. Now, section 1 of the Act requires a statement to have caused, or be likely to cause, “serious harm” to the reputation of the claimant before a claim will be able to succeed. Further, corporate claimants will have to prove "serious financial loss", either actual or likely, in order for the harm complained of to be actionable. In short, this is a “new and stiffer statutory test requiring consideration of actual harm” [2].

In Lachaux, the High Court has provided some much-needed clarification as to the construction and application of the serious harm requirement.

Legal and Practical Points to Note

  • Claimants now have to prove, on the balance of probabilities, that serious reputational harm has been caused or is likely to be caused by the publication complained of. The common law rule that defamation is actionable per se is no longer good law.
  • Although proof of actual or likely damage is required, serious harm can be proven by inference, based on the “gravity of the imputation and the extent and nature of its readership or audience”[3].
  • The point in time from which the court will judge whether a statement is likely to cause serious harm is the date of determination at trial and not the date when the claim form is issued. This recognises that a publication may change from being non-defamatory to defamatory because, for example, a cause of action has lain inchoate until the point at which serious harm is actually caused or becomes probable; or may change from defamatory to non-defamatory where, for example, there has been a full and swift retraction and apology.
  • In considering the serious harm requirement, the court may have regard to all the relevant circumstances, including what actually happened after publication.
  • However, it remains correct and binding that where people or sources other than the defendant have also made similar publications, those publications cannot be admitted into evidence for the purpose of limiting or reducing damages [4].
  • Where a defendant believes that any actual or likely harm to the claimant’s reputation is too slight to properly found a claim and/or where there is an issue as to the meaning of the words used, it will be preferable, in terms of efficient case management, for those matters to be tried as preliminary issues. This could offer a significant cost saving, as a defendant may not have to incur the time and cost of preparing a substantive defence.

WM Comment

Following Lachaux, potential defamation claimants should consider their position carefully with a specialist legal advisor before rushing to issue proceedings. Whilst defamation as a cause of action remains available to protect serious damage to reputation, the new narrow and strict statutory test means that fewer cases will get off the ground. Well advised defendants could stop a claim in its tracks by immediately requesting a trial of preliminary issues or by issuing a retraction and apology. For corporate claimants the hurdles seem even higher. The effect of defamatory publications on a business can be pervasive and difficult to quantify in purely financial terms; and there is currently no guidance as to how the courts will determine what is “serious” financial loss.

Whether you are an individual or business whose reputation is under threat from potentially defamatory publications; or whether you are a defendant facing a potential claim or complaint, litigation may not necessarily be your only or best option. Speak to one of our specialists, who will be pleased to provide a swift resolution strategy for you.