In the case of Lachaux v Independent Print Ltd  EWCH 2242 (QB), the High Court has clarified the “serious harm” requirement in a defamation claim, relaxing the test compared with previous case law.
Mr Lachaux is a French national living in the UAE. He brought the claim against three newspapers (HuffingtonPost, The Independent and its sister paper I, and the Evening Standard) in respect of five articles, each stating, in summary, that Mr Lachaux is a wife-beater; that when his wife escaped and took their son with her, he falsely accused her of kidnap; and that he unjustifiably snatched their son back from her.
The key issue involved under section 1(1) of the Defamation Act 2013 (the Act) is that a publication will not be libellous “unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. This came into force on 1 January 2014.
Warby J ruled that the publication of the allegations in four of the five articles did cause, or was likely to cause, sufficient harm to Mr Lachaux’s reputation to justify bringing the claim.
PROCEDURAL ISSUES – SOME IMPORTANT PRACTICAL GUIDANCE
When, in a libel action, the issue of serious harm is raised, Warby J directed that it should usually be tried as a preliminary issue (rather than by an application to strike out or for summary judgment), and prior to a Defence being served. It should be dealt with together with any issue as to the meaning of the words complained of.
Evidence is admissible at the preliminary issue trial dealing with serious harm. Disclosure needs to be given in relation to the preliminary issue - searches of email accounts and electronic media should be carried out carefully.
LEGAL PRINCIPLES – A MORE CLAIMANT-FRIENDLY APPROACH
There had been one previous main decision on the new ‘serious harm’ section, in Cooke v MGN ( 1 WLR 595).
In general terms, Warby J followed the lead of Bean J in the earlier case: Warby J agreed that libel is no longer actionable without proof of damage i.e. a claimant must establish as a fact on the balance of probabilities that serious harm has been caused to his reputation - and “is likely to” require proof that serious harm probably will be caused in the future.
Warby also agreed with Bean J in Cooke, that this did not mean that evidence as such would always have to be presented: “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 or audience”.
But this is where a significant difference arises between the approach of Warby J from that of Bean J in the earlier case.
Experience shows that it is often hard (and costly) to present concrete evidence of serious harm. In practice, the inference of harm is likely to be much more important. Bean J in Cooke set a high threshold for such inferences.
Warby J in the Lachaux case tended to lower that threshold, inferring serious harm to reputation in relation to an individual who had only visited the UK on a few occasions and at most was known to 100 or so people .
He even drew the inference in relation to an online article with only a few thousand unique visitors (with no evidence that any of them actually knew the claimant). Harm to the claimant’s reputation amongst those who did not know him was taken into account.
If this approach is applied to the traditional “media” libel action of national newspaper or broadcaster publication to millions of readers then in the case of any serious libel the Court is likely to draw an inference of serious harm – whether or not the claimant is well known to the general public.
EFFECT OF OTHER SIMILAR PUBLICATIONS: THE RULE IN DINGLE
The second main issue of law in relation to the serious harm requirement was whether, in reaching a conclusion on the issue of whether a given publication caused or is likely to cause serious harm, the court can and should take any, and if so what, account of other publications to the same or similar effect as the material complained of.
Warby J concluded that the rule in Associated Newspapers Ltd v Dingle ( AC 371) was still good law, and as such, where many words have been published to the same effect, it is not legitimate for a defendant to seek to reduce damages by inferring that those other publications have injured the claimant’s reputation.
On balance, Warby J’s decision is likely to be helpful to claimants where there has been substantial publication. “Serious harm” is not quite the high hurdle which some have believed it to be since the Cooke decision.
Warby J stated that the extent of “serious harm” should be gauged at the point when the issue comes before the court to be decided (a difference from the approach in Cooke where Bean J said that the relevant point was the time the libel action was commenced).
In any event, it is clear that events after publication are relevant, and on this basis, where a defendant considers it may well have caused serious harm to a claimant by a particular statement, the defendant should consider how best to mitigate such harm, for example by issuing an appropriate apology – the earlier and more generous, the better.
A prompt apology by the defendant in Cooke was part of why the claimant lost in that case.
Everyone will be watching with interest whether the case goes to the Court of Appeal – it is reported that during the next few months, AOL (UK) Ltd, the publisher of the Huffington Post, is to seek Warby J’s permission to appeal.