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Lachaux v Independent Print: Defining ‘Serious Harm’ for Defamation

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

A lie gets halfway around the world before the truth has a chance to get its pants on.

Winston Churchill

The tort of defamation has played an important role in preventing the spread of lies and maintaining honest reputations. In the age of alternative facts and fake news, the Defamation Act 2013 (DA 2013) represents English law’s attempt to balance between competing interests of a claimant’s right to a reputation and a defendant’s right to free speech.

The DA 2013 has already been heavily discussed by Keep Calm Talk Law on multiple occasions – Chris Bridges examined the key ‘21st Century changes’ that it heralded, while Emily Clements considered its application in the case of Cooke v MGN Limited [2014]. Yet despite these insights, and the fact that the DA 2013 came into force almost 4 years ago, some confusion still remains surrounding the impact of its new provisions.

Therefore, as this article explains, attention should be given to the recent judgment in Lachaux v Independent Print Limited [2017], in which the Court of Appeal – for the first time – analysed a key component of the DA 2013: the definition of what constitutes ‘serious harm’ in Section 1(1) of the DA 2013.

Section 1(1) of the Defamation Act 2013

While Section 1(1) of the DA 2013 is a key provision for applying the statute, it has been the source of confusion for practitioners given the lack of clarity it offers. It 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.

This section was intended to build upon the pre-2013 common law requirements that there had to be – as outlined in Thornton v Telegraph Media Group Ltd [2010] – a ‘threshold of seriousness’ and – as held in Dow Jones & Co Inc v Jameel [2005] – a ‘real and substantial tort’ before a statement can be deemed defamatory.

The requirement that a statement cause the claimant ‘serious harm’ therefore appears to be Parliament’s attempt to raise the bar for bringing a claim. This has as its potential underlying goal the prevention of claimants with deep pockets from bullying smaller parties with threats of expensive litigation until the offending statements are withdrawn.

However, whether Parliament has succeeded in this aim and made it more difficult for claimants to succeed at trial is controversial – Alistair Mullis and Andrew Scott, for example, have argued that the DA 2013 simply codifies the pre-2013 case law and thus makes ‘no real difference.’ Though this view may appear cynical, this article agrees, and argues that the Court of Appeal’s judgment in Lachaux v Independent Print Limited [2017] further contradicts Parliament’s apparent intention to achieve fairness within the law and prevent the abuse of the tort by claimants.

Lachaux v Independent Print

The Facts

Lachaux v Independent Print Limited [2017] revolved around the publication of five articles by three publishers about the claimant based on interviews given by his ex-wife. These articles included two published by Independent Print Limited in The Independent and ‘i’, one published by Evening Standard Limited in the London Evening Standard and two published by AOL in the Huffington Post. The articles included a plethora of allegations against the claimant, including claims of his alleged use of violence against his ex-wife, of his alleged threats to abuse the Emirati legal system to the discriminate against his ex-wife, and his alleged initiating of unfounded prosecutions against the ex-wife after falsely accusing her of kidnapping their child.

The First Instance Judgment

The most important aspect of Warby J’s judgment in Lachaux v Independent Print Limited and Others [2015] was whether any of the publications satisfied the ‘serious harm’ requirement under Section 1(1) of the DA 2013. Warby J held that this section requires the claimant to prove:

[O]n the balance of probabilities that the publication has in fact caused serious harm to the claimant’s reputation, or will probably do so in the future.

After holding that this could be proved by inference, Warby J further stated that Parliament had intended that the courts, in determining whether serious harm had been or is likely to be caused, should ‘consider all the relevant circumstances, including what has actually happened after publication.’

Combining these principles, Warby J found that four of the five articles had caused serious harm to the claimant’s reputation. In reaching this conclusion, he made two main comments about the extent to which the law had changed under Section 1(1) of the DA 2013:

  • The previous ‘presumption of harm’ in libel cases – which required the defendant to prove that serious harm was not caused even if there is an inference it may have been – no longer plays any significant role under the DA 2013.
  • The rule that the cause of action for libel and defamation cases arises upon publication of the defamatory matter had been revoked under the DA 2013. Now, Warby J concluded, ‘a cause of action may [instead] lie inchoate until serious harm is caused or its future occurrence becomes probable.’

The Court of Appeal’s decision – A Rethink

Despite agreeing with Warby J’s decision that the articles had defamed the claimant, the Court of Appeal – led by Davis LJ, with whom both Macfarlane LJ and Sharp LJ agreed – rejected both of Warby J’s propositions. Instead, the Court of Appeal provided new rules in relation to a multitude of matters concerning the interpretation of Section 1(1) of the DA 2013.

Judicial Interpretation of Section 1(1) of the DA 2013

At first instance, Warby J had concluded that ‘in enacting Section 1(1), Parliament intended to do more than just raise the threshold for defamation’, but had also intended that it be necessary for claimants to have ‘to go beyond showing a tendency to harm reputation’ by proving ‘as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of’. This had the effect of removing the presumption of harm under the pre-DA 2013 case law.

However, Davis LJ rejected this view. He expressed concern that Warby J’s removal of the presumption of harm went further than ‘raising the bar’ and, in effect, involved the ‘erecting [of] a further hurdle’ for claimants. In his view, this interpretation represented a substantial change in the law which ‘at no stage’ was ‘flagged up in the preceding Parliamentary debates or Explanatory Notes’ and was similarly not ‘evident from the scheme and structure of the DA 2013 itself’.

Davis LJ was therefore quick to confirm that the presumption of harm was retained under the DA 2013, noting – as Tugendhat J had stated in Thornton v Telegraph Media Group Ltd [2010] – that the existence of the presumption of damage was compatible with a raised threshold. After all, he noted, nothing in the ‘actual language of Section 1(1)… compel[s] a conclusion that the presumption of damage is intended to be abolished’.

Furthermore, Davis LJ gave guidance as to the definition of the phrase ‘is likely to’, which had been given several different interpretations by the courts in relation to different statutory areas. Noting that this variety means it is difficult and potentially inappropriate to give an all-encompassing definition to the phrase (as Lord Nicholls pointed out in Cream Holdings Limited v Banerjee [2004], the phrase is heavily context-dependent), Davis LJ rejected Warby’s J conclusion that the phrase ‘unequivocally meant more probably than not’.

Instead, he again opted to follow Tugendhat J’s decision in Thornton v Telegraph Media Group Ltd [2010] that ‘likelihood’ and ‘tendency’ are ‘words used in effect interchangeably’. Therefore in the context of defamation, the phrase ‘is likely to’ is taken to mean ‘connoting a tendency to cause’.

When does a Relevant Cause of Action Arise?

In regards to the relevant time when the cause of action arises, Davis LJ considered the judgment of Bean J in Cooke v MGN Limited [2014]. Bean J had stated:

The words ‘has caused’ involve looking backwards in time, the words ‘or is likely to cause’ involve looking forwards. The Act does not make clear the moment which marks the dividing line between past and future. It cannot be the moment of publication, since at that moment no harm ‘has been caused’. The two logical possibilities seem to be the date of issue of the claim and the date of the trial…

Either of these has the curious effect that whether a statement is held to have been defamatory on the day it was published might depend retrospectively on the timing of the issue of proceedings or the timing of the trial.

But Davis LJ disagreed with the proposition from Cooke v MGN Limited [2014] that the moment of publication cannot be the relevant date because no harm has been caused at this point. Furthermore, Davis LJ rejected Bean J’s subsequent conclusion that the relevant date was the date of issue of the claim, on the grounds that this would be ‘entirely arbitrary’.

This, he noted, was contrary to 'a well-established common law principle' and would also create potential expense and uncertainty for claimant who would be unsure at what point they could legitimately issue their claim. Indeed, as Dunn LJ articulated in Grappelli v Derek Block (Holdings) Limited [1981] 2 All ER 272:

[T]here is no room for the doctrine that the cause of action can, so to speak, be allowed to be inchoate or lie dormant until such time as some fact emerges which would transform an otherwise innocent statement into a defamatory one…

Davis LJ, pointing out that the date of publication is exactly the moment when harm will be caused, therefore concluded it was appropriate to reaffirm the common law position that this is when the cause of action arises.

Procedure

The Overriding Objective of civil law cases, found in Part 1 of the Civil Procedure Rules (CPR), requires the courts to deal with cases justly and at a proportionate cost. For this reason, the Court of Appeal was highly critical of how much time that had been spent at first instance trying to decipher, amongst other things, the exact meaning of ‘serious harm.’ Indeed, what Davis LJ described as an ‘unnecessarily elaborate procedure’ had seen a hearing lasting two full days, the incurring of ‘great’ costs and the claimant being required to attend court and give oral evidence.

Davis LJ felt that it was possible to save much of this time and cost while remaining loyal to the words of the statute by another, more efficient, approach. This involves determining the meaning of a statement by selecting a single meaning, by reference to the words used, without the admission of extrinsic evidence and on an objective basis. Then, if the chosen meaning so established does not convey a serious defamatory imputation, then the claim – by reason of Section 1(1) of the DA 2013 – is likely to be struck out. On the other hand, if the meaning does convey a serious defamatory imputation, then an inference of serious reputational harm can and should be drawn accordingly.

Davis LJ noted that this inference, while rebuttable by defendants, ‘accommodates the long acknowledged difficulties for claimants in adducing tangible evidence to support an assertion of harm to reputation.’ He considered it justifiable because, as Judge Moloney QC’s had observed in Theedom v Nourish Training [2015], there is no reason to restrict the drawing of an inference of serious reputational harm derived from an (objective) appraisal of the words used.

However, despite this approach appearing generous towards claimants, Davis LJ was careful to ensure that the requirement established in Dow Jones & Co Inc v Jameel [2005] for a ‘real and substantial tort’ had not been removed. Therefore, no matter the inference, if the circumstances indicate that there has ceased to be a real and substantial tort, the claim should be struck out.

Ultimately, this approach means that if the imputed meaning of the words used is ‘serious’, and carries with it the inference that serious reputational harm has been or is likely to be caused, the onus is taken off the claimant to prove this harm. An inference will instead arise that such harm has occurred which the defendant may then challenge this claim and state why it should not proceed to trial despite the inference, either by a requesting a summary judgment under CPR 24 by citing a clear reason why the claimant is unlikely succeed at trial, or by arguing that there is no longer a ‘real and substantial tort’ under Dow Jones & Co Inc v Jameel [2005].

Comment

It is difficult to analyse whether the Court of Appeal has done well in their attempt to adapt the tort of defamation. As correctly stated by Peter Wake, whether Lachaux v Independent Print Limited [2017] is a welcome decision that will save time and costs in libel claims or goes against the very intention of Parliament and damages free speech ‘depends who you listen to’.

Still, in Peter Wake’s view, the ‘decision does not readily chime with Parliament’s apparent intentions’ as regards Section 1(1) of the DA 2013. Indeed, while he accepts that it was Parliament’s intention that ‘the serious harm threshold would allow weak claims to be disposed of quickly,’ the Court of Appeal’s conclusions that the cause of action arises at the time of publication (as opposed to when the serious harm is proved) and that serious harm may be inferred are ‘patently barrier[s] to such an approach’.

Peter Wake is certainly not alone in this opinion: Jonathan Coad – who represented the defendants in the proceedings – has argued the facts of Lachaux v Independent Print Limited [2017] were ‘exactly the kind of weak claim which Parliament intended to exclude with its serious harm rule’ and described the judgment as a ‘major set-back for free speech.’ Commenting further, Jonathan Coad argued that it:

[W]as clear that the three Court of Appeal judges disapproved of the first major intervention of Parliament into the law of defamation, and were determined to prioritise their own views about what the law should be over the expressed will of Parliament.

On the other hand, there are also those who applaud the decision on the grounds that it will improve the tort of defamation. Defamation specialists Brett Wilson LLP describe the ‘decision over the point at which the tort crystallises’ as a ‘victory for common sense’ because claimants ‘should not have to guess or wait and risk running into limitation’ when bringing a claim.

Furthermore, the firm states that any criticisms that ‘the judgment is regressive, offends free speech and undermines the purpose of the Defamation Act 2013… miss the point’, and argues that:

[A]s the Court of Appeal have made clear, Section 1(1) does raise the threshold from one of substantiality to one of seriousness, [and] Parliament clearly never intended to alter the law of defamation in such a way that the tort would become unworkable.

Likewise, Daniel Taylor – who acted for the claimant in Lachaux v Independent Print Limited [2017]argues that by ruling that ‘serious reputational harm is capable of being proved by a process of inference,’ the court removed the necessity for lengthy and costly evidential hearings on the matter, thereby ‘simplifying procedures and cutting costs’.

Conclusion

Although the Court of Appeal has succeeded in streamlining the procedures for defamation and libel cases by removing unnecessary time and costs in trials, as per the Overriding Objective in CPR 1, this appears to have come with the undesirable consequence of contradicting the intention of Parliament when introducing the DA 2013.

A discussion as to whether, and as to how, the DA 2013 was intended to rebalance the rights of reputation and free speech and, in doing so, make it harder for claimants to bring defamation cases is worthy of an article in itself. However, while other measures introduced to achieve this balance – such as the allowance for ‘editorial judgement’ in Section 4(4), or the removal of the jury trial presumption in Section 11 – are currently alive and well, the requirement for serious harm (arguably the biggest balancing tool of the DA 2013) looks to have taken a substantial hit.

This is certainly an area of law to keep an eye on. The defendants in the case immediately filed for an appeal at the Supreme Court, meaning it is entirely possible that everything discussed within this article will soon have been replaced by a set of completely different rules. If this is the case, hopefully the Supreme Court’s judgment will find a better way of balancing Parliament’s intention with the Overriding Objective. It is appreciated, of course, that this is no small feat to achieve.

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Tagged: Defamation, Litigation, Tort Law

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