Lachaux v Independent Print Ltd and another [2019] UKSC 27: A Summary (the test of serious harm in UK defamation cases)

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

To read the judgment click here.

The Supreme Court has clarified the approach to the serious harm test in section 1 of the Defamation Act 2013 (“the Act”).

Section 1:

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

(2) 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.

In the High Court ([2016] QB 402), Warby J held that section 1(1) of the Act meant that the legal presumption of damage that applied in libel cases before the enactment was no longer relevant, and that proof of damage was now required. Warby J’s view was that the provision introduces an additional condition that must be satisfied before a statement can be regarded as defamatory, so that the words must not only be inherently injurious but it must also be shown to produce serious harm.

On the facts of the case, Warby J found that the articles had caused Mr Lachaux serious harm. The newspapers appealed (and lost), but controversially, the Court of Appeal restored the common law position, interpreting the “is likely to cause” wording of section 1(1) of the Act as connoting “a tendency to cause” and giving rise to an irrebuttable presumption of reputational damage. The Court of Appeal’s view was that the Act simply added the requirement of the seriousness of the damage to be proved.

The decision of the Supreme Court was unanimous and approved Warby J’s conclusions: the 2013 Act had unquestionably altered the common law to introduce a new threshold of serious harm. In paragraphs 13 to 15 of the judgment Lord Sumption summarised the approach as follows:

  1. The common law position of damage to reputation did not include a presumption of ‘seriousness’, which was a new threshold explicitly introduced by the Act;
  2. This necessarily means that a statement will not be regarded as defamatory unless it “has caused or is likely to cause” harm which is “serious”;
  3. The “serious” effects to be considered are the consequences of the publication, not the publication itself;
  4. The wording “has caused” is interpreted as harm that has actually occurred and the wording “is likely to cause” as probable future harm;
  5. Section 1(2) must be read with section 1(1) so that it refers to the loss that has been caused, or is likely to have been caused, by the defamatory statement, not the harm done to the claimant’s reputation. Here the financial loss must exceed the threshold of seriousness.

The Supreme Court endorsed Warby J’s approach, stating at paragraph 20 that his “analysis of the law was coherent and correct, for substantially the reasons which he gave”. Warby J’s analysis of the law was coherent and correct, for substantially the reasons which he gave. For Warby J’s judgment click here.

The position therefore remains unchanged, and it is clear that there is an evidential hurdle that claimants face in defamation claims. Claimants will need to submit extraneous evidence to show how the injurious statement has caused serious harm as a matter of fact to reach the threshold, although the combination of the meaning of the words, the claimant’s circumstances and the extent of publication will all continue to be relevant.

 

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