The Defamation Act 2013 introduced a statutory seriousness threshold that must be crossed before a statement can give rise to a claim: “[a] statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” (section 1(1)). There has been uncertainty as to the proper construction and effect of the “serious harm” requirement since it came into force at the beginning of 2014. The High Court has recently clarified the position, in a judgment handed down on 30 July 2015: Lachaux v Independent Print Limited & Ors [2015] EWHC 2242 (QB).

The court held that section 1(1) requires a claimant to prove, on the balance of probabilities, that the statement he/she complains of has caused or will probably cause serious harm to his/her reputation. The common law presumption of damage to reputation will therefore no longer play any significant role. Further, if serious harm must be proven, the common law rule that the cause of action for libel and defamation is actionable per se on publication can no longer be regarded as good law. A cause of action may remain incomplete until serious harm is caused or becomes probable.

The court also gave guidance on a number of procedural issues in the management of defamation claims. In particular, where the “serious harm” requirement is contested, it should usually be tried as a preliminary issue alongside any issue as to the meaning of the words complained of. It will generally be unnecessary and undesirable for a defence to be pleaded before those preliminary issues are determined.

Neil Blake and Thomas Turner, a partner and associate in our media disputes team, consider the decision further below.

Background

The claimant, Mr Bruno Lachaux, brought proceedings against three different news publishers in respect of five articles first published in January / February 2014. Each of the articles contained a description of legal proceedings in the UAE brought by Mr Lachaux against his ex-wife for “kidnapping” the couple’s son. The articles reported allegations made by Mr Lachaux’s ex-wife, including that she had been physically abused by Mr Lachaux and that he had only accused her of kidnap to avoid such charges.

Among the preliminary issues to be determined was whether the publication of the articles had caused or would be likely to cause serious harm to Mr Lachaux’s reputation within the meaning of section 1(1).

The “serious harm” requirement

The court (Warby J) held that whether a statement has or will probably cause serious harm to a person’s reputation is a matter to be proved by the claimant on the balance of probabilities. The court will not confine itself to considering only the defamatory meaning of the words used and the harmful tendency of that meaning, but will have regard to all the relevant circumstances including evidence of what has actually happened following publication. Serious harm may be proved by inference, but the evidence may or may not justify such an inference.

On the facts of this case, the court held that four of the five articles had caused serious harm to the claimant’s reputation.

Although it was not necessary to his decision, Warby J also considered the point in time from which the court is to judge whether a statement is likely to cause serious harm. Should it be when the claim form is issued or when the issue falls to be determined? In the judge’s view, it should be the latter. Otherwise a claim could fail because there was no likelihood of serious harm at the time of publication, despite such harm having occurred by the time of determination; similarly, a claim could succeed where serious harm was likely at publication, but it turned out that no such damage ultimately occurred.

In reaching his decision in this case, Warby J made clear that a number of common law principles were now obsolete following the introduction of the Defamation Act 2013. The judge accepted that his interpretation of the Act meant that libel is no longer actionable without proof of serious harm or its likelihood, and that the common law presumption of damage to reputation accruing on publication will cease to play any significant role in the law of defamation.

Procedure and case management

The court also gave guidance as to the efficient conduct and management of defamation cases in light of the changes wrought by the Act.

Endorsing his judgment in Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), Warby J said that where a defendant maintains that the actual or likely harm to reputation is too slight to justify a claim, it will usually be preferable for this to be tried as a preliminary issue rather than be the subject of a strike out or summary judgment application. To the extent that there is also an issue as to the meaning of the words used, that meaning should be determined alongside the issue of serious harm. Separating the two is “inherently undesirable”.

For the purposes of dealing with preliminary issues, Warby J was keen to emphasise that limited disclosure and cross-examination could be ordered to assist the court with its determination.

The judge said where a threshold matter (such as a serious harm issue) arises for preliminary determination, it will generally be unnecessary and undesirable for a defendant to file a defence before it is decided. This offers a potential saving in both time and costs, as the parties may never have to address any defences raised should the claim fall down at the preliminary issue stage. A defendant who raises a threshold issue that will be dealt with by way of preliminary issue, but who still chooses to plead a substantive defence, will do so at risk as to costs; a claimant who serves a reply in those same circumstances will be similarly exposed.

Comment

This decision is welcome in clarifying how the Act is to be understood and applied, and its effect on common law principles that have not been expressly repealed. Although Lachaux confirms that a claimant must prove actual or likely serious harm on the balance of probabilities, this is perhaps less burdensome for a claimant than it might first appear – Warby J specifically noted that the serious harm requirement is capable of being satisfied by an inferential case, based on the gravity of the imputation and the extent and nature of its readership / audience.  Moreover, the Jameel jurisdiction – which permits the court to strike out a trivial claim as an abuse of process – has meant that for some time it has only been in a strict technical sense that libel has been actionable without proof of any damage.

Although Lachaux is a helpful clarification for individual claimants, bodies that “trade for profit” must satisfy the requirements of section 1(2) of the Act: there will be no serious harm to reputation unless serious financial loss has been caused or is likely to be caused. What will be considered to be “serious financial loss” remains to be clarified by the courts, and prospective company claimants are likely to be slow to issue proceedings while that remains the case.