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Lachaux: defamation clients must prove “serious harm”

17 June 2019

Has a statement about you caused you serious harm? That is the question posed by section 1 of the Defamation Act 2013, which has been the subject of a long running defamation claim brought against the publishers of the Evening Standard, the Independent and the Huffington Post. The Supreme Court has now delivered its judgment on the interpretation of section 1, which has significant implications for the media industry.

The Lachaux case

Bruno Lachaux was a French aerospace engineer living with his wife and child in Dubai. The marriage broke down, leading to divorce proceedings and a custody battle over their son. His wife went into hiding, taking their son with her, claiming that she would not receive a fair hearing in Dubai. Mr Lachaux was awarded custody by the Dubai court and eventually retrieved his son. Soon after, numerous British publishers reported the story, including the Evening Standard, the Independent and the Huffington Post. Mr Lachaux brought defamation claims against those three publishers.

The publishers brought applications to have the claims struck out on the ground that the articles were not defamatory as they did not meet the “serious harm” test under section 1(1) of the 2013 Act and/or that the claims should be struck out as an abuse of process. The publishers argued that Mr Lachaux, who was not resident in England and had little active connections with the country, could not have suffered any actual harm to his reputation, and if he did, such harm was not sufficiently serious. On the abuse of process point, the publishers relied on the judgment of the Court of Appeal in Jameel v. Wall Street Journal in which the court struck out a claim relating to a publication to 5 people on the basis of proportionality, i.e. that “The game will not merely not have been worth the candle, it will not have been worth the wick.”

The first instance decision

The applications were heard by the specialist media judge Mr Justice Warby. The judgment was very detailed, running to 195 paragraphs. At risk of over-simplification, Warby J found that (i) the cause of action for a defamation claim arose on publication (and not when serious harm was actually caused), (ii) the date for assessing that harm was the date of the hearing, (iii) defamation claimants were required to prove as a matter of fact that serious harm to their reputation had been caused or was likely to be caused, (iv) that except in circumstances where serious harm was obviously caused (e.g. accusations of being a terrorist in a national newspaper), such harm needed to be proven by evidence, and (v) defendants could not rely on other publications to the effect that their article had not caused serious harm in comparison to the harm caused by the larger circulations of the other publications. This final point concerned whether ‘the repetition rule’ (which treats repeaters of allegations the same as those who first said them) and ‘the rule in Dingle’ (which prevents publishers relying on other publications to reduce the level of damages payable) applied to the assessment of whether serious harm had been caused.

While Warby J essentially agreed with the publishers on the law (i.e. that the effect of section 1 was to require claimants to actually prove that harm was caused), he found that serious harm had been caused or was likely to be caused by the majority of the articles. He struck out a claim against the Huffington Post in relation to one of two articles published.

On to the Court of Appeal

The publishers appealed the decision, and Mr Lachaux cross-appealed against Warby J’s interpretation of the law. The essence of Mr Lachaux’s argument was that section 1 had only elevated the pre-existing requirement that claimants had to show that the words complained of were sufficiently grave that they were likely to have “substantially” affected their reputation. This focus on the meaning of the words to the exclusion of any real-world evidence was the key battleground.

The Court of Appeal agreed with Mr Lachaux, leading to many commentators (and particularly publishers or those that represented them) to question what was the point of the 2013 Act. Was it really just to raise the threshold from asking whether someone’s reputation had been substantially affected to seriously so?

Up to the Supreme Court

The publishers of the Evening Standard and the Independent went on to appeal to the Supreme Court. The main question before it was whether Warby J’s interpretation of the law (i.e. that the question of whether serious harm had been or was likely to be caused was a matter of fact that needed to be proven by the claimant) was correct, or whether Davis LJ in the Court of Appeal’s interpretation (i.e. that the question of serious harm could in most cases be resolved simply by looking at the seriousness of the imputation of the words on the page) was correct.

In something of a relief to the press and other publishers, Lord Sumption has come down in favour of Warby J’s interpretation. Section 1 requires the assessment of serious harm to be determined by reference to the actual facts about the impact of the article, and not just to the meaning of the words. The court also found that ‘the repetition rule’ and ‘the rule in Dingle’ have been unaffected by section 1, and the rule in Dingle does apply to the assessment of serious harm.

While the Supreme Court preferred Warby J’s interpretation of the law (as argued for by the publishers), the Supreme Court nevertheless dismissed the appeals on the facts as determined by Warby J.

What does this mean for litigants?

In short, it means the further hurdle of serious harm has been resurrected and whether or not serious harm has been caused is back up for grabs regardless of the gravity of the allegation. However, claimants subject to grave allegations may still be able to persuade the court to infer that serious harm has been caused, provided the statement was published to a large number of people or a small number of relevant people. Claims involving less serious allegations and/or smaller publications and/or less well-known claimants are likely to see serious harm become an issue again.

Before the Court of Appeal decision, the prevailing understanding was that a swift retraction and apology could remove the cause of action. The Court of Appeal found that the cause of action arose at the point of publication, so a later apology was irrelevant. While not expressly dealt with, the Supreme Court decision suggests that an apology could now spike any claim if it has truly removed the seriousness from the harm caused. However, the circumstances in which that might happen appear limited.

One important procedural point refers if and when defendants should be raising the issue of serious harm. Warby said that “where a defendant maintains that the actual or likely harm to reputation is too slight to justify a claim, the starting point should be consideration of s 1; and if that issue is raised it will usually be preferable for it to be tried as a preliminary issue, rather than by way of a striking out or summary judgment application, which may fail on the grounds that the conclusion is not obvious and the prospect of success not fanciful.” The Court of Appeal found that the point should generally not be dealt with as a preliminary issue on the basis that the seriousness or otherwise of the harm could be determined by reference to the seriousness of the meaning. The Supreme Court does not appear to address this point, suggesting that the Court of Appeal’s interpretation may stand. However, the Supreme Court’s preference for Warby J’s interpretation of the law generally (and the effect that has on the rationale for the Court of Appeal’s decision) suggests substantial preliminary issue trials on serious harm may be back on the cards.

Lewis Silkin acted for the Huffington Post

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