The Court of Appeal has considered the effect of section 1(1) of the Defamation Act 2013 (‘the Act’) and the procedural approach that should be followed where it is disputed that a published statement has caused or is likely to cause serious harm to the reputation of the claimant (Lachaux -v- Independent Print Ltd [2017] EWCA Civ 1334).

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 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 be caused

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 whilst 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.

Finding in favour of Mr Lachaux, the case gave guidance as to how ‘serious harm’ should be interpreted under s. 1(1) of the Act. The requirement that the claimant show proof of actual or likely serious harm to reputation was significant as Warby J acknowledged that ‘libel is no longer actionable without proof of damage’.

An interesting point to note is that section 9 of the Act was designed to cut down on ‘libel tourism’, the idea that wealthy foreign business people and celebrities were using English courts to bring libel claims. It states that where the defendant is domiciled outside the EU or EEA, the court will not have jurisdiction to hear a defamation claim unless England and Wales is ‘clearly the most appropriate place’ in which to bring it. Mr Lachaux had no connection with the UK other than his British ex-wife. Despite this the court made it clear that it was entitled to exercise jurisdiction due to the defendants being companies registered in England and Wales.

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 whilst 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, whilst 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 by 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 the claim out as an abuse of process if the circumstances warrant.

Conclusion

As Davis LJ put it, the interpretation of the ‘serious harm’ test adopted in the first instance case was ‘not so much a case of raising the bar: rather it is a case of erecting a further hurdle’. In clarifying the requirement for serious harm, however, the Court of Appeal did accept that the effect of section 1(1) of the Act was to raise the threshold of the bar on defamation claims. This was consistent with Parliament’s aim of making it harder to bring trivial or unmeritorious claims.

The case does not provide much guidance as to what constitutes ‘serious harm’, however, it does confirm that the impact of section 1(1) of the Act is less radical than perhaps first thought. Most notably, the Court of Appeal reaffirmed that the cause of action for libel arises at the time of publication which will make it easier to calculate the limitation period of a claim and also the calculation of damages. It may, however, serve to limit a defendant’s attempts to avoid liability by publishing an apology or retraction, although such steps should still serve to reduce any damages awarded.

The defendants have since made an application for permission to appeal to the Supreme Court, the outcome of which is awaited.