Lachaux v Independent Print Ltd: Where are we now on “serious harm”?

On 12 June the Supreme Court handed down its much anticipated judgment in Lachaux v Independent Print Ltd [2019] UKSC 27 on appeal from [2017] EWCA Civ 1334. The appeal was dismissed on the facts but The Supreme Court analysed the law differently from the Court of Appeal.

Lord Sumption concisely gave the reasons for the Court’s decision, which definitively states the law on “serious harm to reputation” for the purposes of s1(1) of the Defamation Act 2013.

Facts

The case concerns three libel claims brought by Bruno Lachaux, a French national who at the relevant time lived with his British wife in the UAE. The marriage broke down and there were divorce and child custody proceedings in the UAE courts. In 2014 a number of British newspapers published articles making allegations about Mr Lachaux’s conduct towards his wife during the marriage and in the course of the divorce and custody proceedings.

Preliminary Issue Trial

The question of serious harm – whether the statements met the threshold in s1 – was dealt with as a preliminary issue before Warby J in 2015. The hearing was lengthy, involving a significant amount of witness evidence.

Section 1 Defamation Act 2013

Section 1 of the Defamation Act 2013 reads:

Serious Harm

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

  • For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”

The correct construction of section 1(1) Defamation Act 2013

The hearings at first instance and before the Court of Appeal

In the Court of Appeal the essential dispute was whether by s1(1) the Claimant must show the inherent tendency of the statement to cause not just some damage to reputation but serious harm to it. This was Mr Lachaux’s case. On the other hand, the Defendants argued that there is an additional requirement to be satisfied before the statement can be regarded as defamatory, namely that it must also be shown to produce serious harm in fact. This, they said, must be established by extraneous evidence unless self-evident.

At first instance Warby J had substantially accepted the Defendants’ case on the law but found on the facts that the articles did cause serious harm to Mr Lachaux.

The Court of Appeal preferred Mr Lachaux’s construction of section 1(1) but upheld the judge’s finding of serious harm.

The decision of the Supreme Court

The Supreme Court has concluded that section 1 not only (a) raises the threshold of seriousness above that envisaged in the well-known cases of Thornton and Jameel but (b) also requires that the question whether the statement has caused or is likely to cause serious harm to the claimant’s reputation should be determined by reference to the actual facts about its impact and not just the meaning of the words. It disagreed with the Court of Appeal’s approach to the law.

According to Lord Sumption:

  • Parliament unquestionably amends the common law of defamation to some degree by the 2013 Act.
  • Section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of the inherent tendency of the words to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”.
  • “Has caused” here refers to the consequences of the publication and not the publication itself. It points to some historic harm, which is shown to have actually occurred, which is a matter of fact. This can be established only by reference to the actual impact of the statement. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.
  • “Likely to cause” here refers to probable future harm. This also can and should be similarly established as a matter of fact.

Comment

The practical consequence of the decision is that lawyers on both sides will have to assess carefully the actual past or  probable future impact of the publication of the statement  on the reputation of the claimant. That includes the available evidence of such impact or lack of it.

It is important to note that Lord Sumption does not rule out the drawing of inferences from the circumstances.

Relevant circumstances will include the meaning of the statement, the scale of publication, the position and circumstances of the claimant, the identity and hence significance for the claimant of those to whom they are communicated, and actual reactions to the words.

Lord Sumption does not set out guidance on when it would be appropriate to determine the issue of serious harm as a preliminary issue rather than at trial. He does not, however, deprecate doing so simply because disputes of fact require consideration of evidence.

The Court of Appeal’s guidance – that courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on the issue of serious harm – should be treated with caution, because it was given in the context of its rejected analysis of the law ie that if the meaning was seriously defamatory it would ordinarily then be proper to draw an inference of serious reputational harm.

The Supreme Court’s analysis by contrast requires assessment of the actual impact of the words and not just the meaning of the words.

In our view, whether a preliminary issue should be ordered will continue to be a matter of judgment depending on the circumstances of the particular case and there is no bright line for litigators to rely on. It is to be expected that the courts will be circumspect when it comes to a preliminary trial involving a large amount of evidence.

However, there is (in our view) no ordinary restriction on the Court ordering the trial of a preliminary issue on serious harm  which will involve consideration of evidence, in circumstances where the matter is not so obvious as to merit summary judgment or strike out, if it is apt for the sensible management of the case to do so, in order to save court time and costs.

In many cases, assuming serious harm is in issue at all, the amount of evidence will be limited (noting that evidence from the claimant of actual reactions of those to whom the statement was published is not necessarily required to cross the serious harm threshold). Inference of serious harm will continue to be an important feature of many Court decisions on the issue.

However, there may well be a significant amount of correspondence between the parties and argument in Court as to whether a preliminary issue trial is appropriate in the particular case.