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Let Lachaux begin - Landmark defamation case in the Supreme Court

14 November 2018

Today the Supreme Court is hearing the second and final day of the appeal in the case of Lachaux v Independent Print and another against the Court of Appeal decision. Centre stage will be section 1(1) of the Defamation Act 2013, which, although has been discussed at length in this case so far, still requires clarification.

Through the mill

This case has been going for a long time through the court system. In 2014 the claimant, Mr Lachaux, brought libel claims against various publishers for five articles they published about him. These articles included allegations related to Mr Lachaux’s alleged treatment of his ex-wife and their son.

At first instance, Warby J found for Mr Lachaux; he held that because of the severity of the statements made against him, it could be inferred that serious harm had been caused to his reputation. Significantly, Warby J held that there was no longer a presumption of harm in such cases and 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 as a matter of fact. He held the threshold the Defamation Act 2013 introduced was designed to raise the “serious harm” requirement and prevent trivial claims coming before the court.

The defendants’ appeals were heard in November 2016. In the judgment handed down in September 2017, the Court of Appeal dismissed these appeals and provided guidance on section 1(1) of the Defamation Act 2013. It held that, the outcome of the High Court decision was correct, although the impact of Warby J’s judgment was not what was intended. It disagreed with, among other points, the raising of the threshold of “serious harm” for being too high and creating additional requirements for the claimant to prove.

The Court of Appeal refused permission to appeal, but on 30 October 2017, two of the newspapers, Independent Print and the Evening Standard, successfully applied to the Supreme Court for permission to appeal, the hearing of which is ending today.

Key Issues

The appellants have submitted 5 issues for consideration by the Supreme Court, which can be found in an extract from their grounds of appeal here. The main one will be what the proper construction of section 1(1) of the Defamation Act is:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

This has required clarity since its introduction and, as can be seen from the contradictory comments provided at both the High Court and Court of Appeal, is in need of a universal application by the courts. It has been argued that the section sought to build on the principle of a threshold of seriousness established in the pre-2013 cases such as Thornton v Telegraph Media Group [2010] EWHC (QB) 1414. However, there are questions over whether Warby J’s comments went too far or, whether they were in fact a correct interpretation of Parliament’s intentions and require endorsing by the Supreme Court.

The four other issues to be considered which will stem from this are:

  1. Clarification on when serious harm can be inferred when there is no evidence of harm.
  2. Clarification on whether the “repetition rule”, the rule that it is not a defence to defamation for the defendant to prove that they were only repeating what someone else had said, applies to section 1.
  3. Clarification on whether the rule in Associated Newspapers Ltd v Dingle [1964] AC 371, that a defendant cannot rely on other publications of the defamatory words to reduce damages, applies to section 1(1).
  4. Clarification on whether those who only become aware of the defendant after the relevant publication, are to be included when considering “has caused” or “is likely to cause” of section 1(1).

Watch this space

Just because the Supreme Court granted the permission to appeal, does not mean the appellants have an upper hand. The Supreme Court will only grant permission to appeal if it considers there are important points of principle or practice to consider. It has in the past granted permission and then ultimately dismissed the case or granted the permission and used it as an opportunity to clarify the law.

Whatever the decision, we can hope for guidance on the meaning of section 1(1)’s “serious harm” requirement in what is being considered by many commentators to be the defamation case of the year.

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