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Supreme Court confirms raised threshold in test for “serious harm” in defamation actions

14.06.2019 Commercial Disputes, TMT

Robin Shaw

Robin Shaw Partner

Lachaux v. Independent Print Ltd and another [2019] UKSC 27

In a significant judgment handed down on 12 June 2019, the Supreme Court confirmed that the requirement to show “serious harm” pursuant to s.1(1) Defamation Act 2013 (“the Act”) significantly raises the threshold for individual claimants in defamation actions.

The background facts

In 2014, Mr Bruno Lachaux became aware of several articles in British newspapers that he contended were defamatory of him. The articles reported allegations made by his former wife and her son that, during the course of an acrimonious divorce, he had, amongst other things, continued a campaign of intimidation and harassment against his wife, obtained a travel ban which trapped her in Dubai and snatched their young son from her when he found out where she was hiding from him.

The dispute raised two principal issues:

1.    the legal issue of what “serious harm” in s.1(1) meant; and

2.    whether, on the facts, Mr Lachaux had established “serious harm”.

The lower courts had differed in their views on the first issue. The first instance judge, Warby J, ruled that s.1(1) had substantially raised the threshold for libel proceedings, whereas the Court of Appeal considered that it had not made a significant change to the common law requirements as they were before the Act came into force. However, both lower courts agreed that whatever the correct legal test, the allegations about Mr Lachaux were so serious that they met the test. Therefore, Mr Lachaux had successfully established that he had been defamed.   

On appeal to the Supreme Court, Mr Lachaux argued that the Act left unaffected the historical rule that a cause of action is made out if the statement complained of is inherently injurious. Conversely, the defendant publishers argued that s.1(1) introduced an additional condition for the statement to be regarded as defamatory, namely that it produced serious harm in fact, as well as being inherently injurious.

The Supreme Court decision

The Supreme Court agreed with the arguments advanced by the publishers on the first issue, but dismissed their appeal on the basis that (as the courts below had both held), Mr Lachaux had on the facts established “serious harm”.

The Supreme Court ruling on the first issue is of great significance for existing and future defamation claims as it confirms that claimants now need to show that the publication in question has actually caused them serious harm not just that it ‘tended’ to do so. Therefore, in future, claimants may well have to call evidence to demonstrate the harm that they allege they have suffered, which they had not previously been required to do. This arguably reduces the circumstances in which a successful libel claim can be brought in the future. 

Comment

In the Supreme Court’s view, it was clear that the Act sought to modify some of the common law rules that were seen to unduly favour the protection of reputation at the expense of freedom of expression. If “serious harm” could be demonstrated only by reference to the inherent tendency of the words complained of, i.e. that they were inherently injurious, it would be difficult to see that any substantial change to the law of defamation had been achieved by what was evidently intended to be a significant amendment.

This article was written with the assistance of Lola Akinloye

Article authors:

Robin Shaw