Employment tribunal fees ruled unlawful

LIBEL claimants should find it easier to demonstrate that their reputation has been seriously harmed following a decision by the Court of Appeal this week, writes Catherine Urquhart.

In Lachaux v Independent Print Limited & Ors [2017] EWCA Civ 1334, Davis LJ, with whom Lady Justice Sharp and McFarlane LJ agreed, held that libel claimants did not need to provide evidence that their reputation had been damaged, but that this could be inferred based on the seriousness of the words complained of, where they were published, and the extent of that publication.

The issue had arisen following the introduction of the Defamation Act 2013, which introduced the ‘serious harm’ requirement for those claiming damage to their reputation. Section 1(1) provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

The intention of this new requirement was to deter prospective claimants from bringing weak or frivolous claims. However, it had led to satellite litigation as claimants were challenged by defendants to prove that their reputation had been seriously harmed before matters reached the final hearing. Proving such damage could be difficult as, for example, newspaper readers who thought less of someone after reading the words complained of were hardly likely to be identified and brought to court to say so. This issue had started to lead to lengthy preliminary hearings, increasing costs on both sides.

The Lachaux decision – which is the first time the Court of Appeal has considered the serious harm rule – in effect renders into statute the test of what is defamatory that was set down by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB). The requirement he set down of ‘substantial harm’ has in effect been raised to ‘serious harm’ by the 2013 Act.

In Lachaux, Davis LJ made clear that the common law presumption of damage to reputation in cases of libel has not been displaced by the 2013 Act, but there is no presumption of serious damage in a libel case, which the claimant must still prove under s1(1). But he found that this presumption can generally be inferred by considering the statements complained of and where they were made.

He also held that the principle that the cause of action accrues on the date of publication; the single meaning rule; and the established position in relation to limitation are unchanged by the 2013 Act.

The practical effect of this decision is that libel proceedings – which are often complex and costly – may become a little more straightforward for claimants, with a saving in costs and time for both parties, as the courts should now be slow to order a substantial hearing on serious harm as a preliminary issue.

The Lachaux judgment can be read in full here.