Following various high profile controversies in the law of defamation, including the outcry over ‘libel forum shopping’ and Parliamentary scrutiny of corporates pursuing actionable but sometimes negligible libels to restrict publication of negative coverage about them, Parliament amended the law of defamation by the Defamation Act 2013 (the “2013 Act”).
One of the main changes enacted by the 2013 Act, which came into force on 1 January 2014, was the introduction of a new threshold of seriousness for defamation claims to be actionable. This threshold was set out in section 1, which provides as follows:
"(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."
The serious harm threshold has already been considered by the High Court, not least in the high profile libel case brought by Jack Monroe against Katie Hopkins for certain defamatory statements made on Twitter. However, the Lachaux case, whose decision has been eagerly awaited by both practitioners and potential parties to defamation claims alike, is the first time the ‘serious harm’ test (in particular under s1(1)) has been considered by the appellate courts.
Facts of the case
The case concerned five articles that were published by the Independent, the i, the Evening Standard and the Huffington Post about Mr Lachaux’s private life. The articles were published in early 2014 and made various allegations about Mr Lachaux’s conduct in relation to his divorce from his wife.
Various of these allegations involved serious criminal conduct purportedly committed by Mr Lachaux. The Huffington Post took the post-publication steps of removing the article and publishing an apology several months later following a complaint by Mr Lachaux.
First instance decision
Following a first instance trial of preliminary issues in the High Court, Mr Justice Warby held that Mr Lachaux was required under s1(1) of the 2013 Act to prove that, on the balance of probabilities, the statements published had caused or were likely to cause serious harm. Warby J held that four of the five articles published had caused serious harm, finding that one of the Huffington Post articles did not satisfy the statutory test as it had only made cursory reference to a previous defamatory article in the same title.
Warby J’s decision caused a significant reaction amongst defamation practitioners because it swept away the previous position (prior to the 2013 Act) that libel was actionable without evidence of actual harm being required. Whereas previously harm was presumed (and only the extent of harm required consideration), Warby J held that the inference would not necessarily be justifiable by reference to the evidence adduced on the issue, which would be required to prove on a balance of probabilities actual harm had occurred or would occur.
There were two notable practical consequences to the first instance decision. First, that significant evidence would be required at an early stage of proceedings (as indeed was required in this case where Mr Lachaux provided oral evidence at a preliminary issues trial), potentially causing procedural headaches for parties. Second, that harm would have to be assessed at the date of issue of proceedings, which is likely to be inherently uncertain, rather than the point at which the statement is published due to the requirement to prove that harm has been caused or is likely to be caused. Accordingly, Warby J indicated in his judgment that, while the Huffington Post apology was not relevant to the issue of serious harm in this case at first instance, it could be the case that a prompt apology prior to proceedings being issued would be sufficient to prevent a statement from being actionable.
The Defendants appealed against Warby J’s judgment, including his finding that four of the five articles complained of passed the serious harm threshold. In response Mr Lachaux argued to the Court of Appeal that while the High Court’s decision was still correct on the facts (in finding that at least some of the offending articles were defamatory), Warby J had erred in his interpretation of the effect of s1(1) of the 2013 Act and that he could have reached a decision in favour of Mr Lachaux by a quicker route had he not done so.
The Court of Appeal dismissed all of the grounds of appeal brought by the defendants. Lord Justice Davis (with whom Lord Justice McFarlane and Lady Justice Sharp agreed) also stated that he also “accept[ed] the principal argument advanced by the claimant in the respondent’s notice” in relation to s1(1).
Helpfully, Lord Justice Davis summarised the Court of Appeal’s position in relation to s1(1) at paragraph 92 of his judgment. That paragraph should be all practitioners’ first port of call for assessing whether a statement is likely to fulfil the s1(1) threshold, and is set out below:
(1) Section 1(1) of the 2013 Act has the effect of giving statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness: no less, no more but equally no more, no less. Thornton has thus itself been superseded by statute.
(2) The common law presumption as to damage in cases of libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation and the common law objective single meaning rule are all unaffected by s.1 (1).
(3) If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.
(4) Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement.
(5) A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used).
(6) All interlocutory process in such cases should be sought to be managed in a way that is proportionate and cost-effective and actively promotes the overriding objective.
(7) Finally, it may be that in some respects the position with regard to bodies trading for profit, under s.1(2), will be different. I say nothing about that subsection which clearly is designed to operate in a way rather different from s.1(1).
The BLP view
Permission has already been sought to appeal to the Supreme Court, so the story may not be over just yet. However, the Court of Appeal’s judgment will come as good news to individual claimants who, since the 2013 Act and prior to this judgment’s handing down, may have been put off making a defamation claim due to concerns over the serious harm threshold.
The judgment clarifies that harm should be assessed as at the point of publication, rather than the more arbitrary date of issue of proceedings, and that serious harm to reputation can be inferred rather than requiring to be proven on a balance of probabilities. The ability to infer serious harm will enable defamation proceedings to be conducted in a more proportionate and efficient manner and the reference to publication date for the purposes of assessing harm gives claimants certainty and is consistent with other provisions of the 2013 Act. BLP welcomes both developments which have cut through the uncertainty caused by the first instance.
It seems clear from Lord Justice Davis’ judgment, however, that corporate bodies will not be able to rely upon the clarification of serious harm in Lachaux. The Court of Appeal expressly indicated that s1(2) of the 2013 Act, which requires that serious financial loss should have been caused or will likely be caused for a statement relating to a corporate to be defamatory, is designed to operate in a different way to the basic test for serious harm. Given the High Court’s (incorrect) position that evidence was likely to be required in order to prove serious harm had been caused or would likely be caused, it seems likely to BLP that corporates may still be required to adduce evidence at an early stage of proceedings to prove serious financial loss has been caused or will be caused (adopting the same logic).
Whether this creation of a two tier system will be seen in practice will of course be subject to further judicial consideration of the 2013 Act, but corporates should be aware that while individuals will be jumping for joy after the Lachaux decision, successful defamation claims for corporates are likely to remain an uphill battle for now.
BLP has represented a number of high profile individuals and corporates in defamation actions and has acted on both claimant and defendant side, including under the 2013 Act. If you want to discuss defamation actions, you can contact the authors of this article at Graham.Shear@blplaw.com, Sarah.McAtominey@blplaw.com or Andrew.Street@blplaw.com