In Lachaux v Independent Print Ltd and another, preferring the High Court’s interpretation of the "serious harm" test under s.1(1) of the Defamation Act 2013 (DA 2013), the Supreme Court has held that this test does “raise the threshold of seriousness” for bringing a defamation claim over and above the previous common law position.
To access the judgment, please click here.
The case involved an appeal by the Independent and the Evening Standard newspapers against a ruling that articles they published caused or were likely to cause serious harm to the reputation of Mr Lachaux under s.1(1) DA 2013. He was subject to claims made by the newspapers in the context of reporting on his divorce and custody proceedings.
The court made four main points on the “serious harm” test:
1. It acknowledged that there is a common law presumption of damage to reputation, but there is no presumption of “serious” damage, so a new threshold has been brought in.
2. It ruled that this threshold must be determined by reference to the actual facts and impact and not merely the meaning of the words and their inherent tendency. Furthermore, that on the proper construction of s.1(1), which includes that the words "caused” or are “likely to cause", “serious harm”, this section refers to the consequences of the publication and probable future harm, both of which can also be established as a matter of fact.
3. Section 1(1) must be read in conjunction with s.1(2) DA 2013, which relates to defamatory statements about a body trading for profit. Under s.1(2), “serious harm” must have caused or be likely to cause "serious financial loss". This “financial loss” is not the same as special damage which relates to “pecuniary loss to interests other than special damage”. What is required under s1(2) is an analysis of the actual impact of the statement, which may cause "greater or lesser financial loss… depending on his or her particular circumstances and the reaction of those to whom it is published" (para 15 of the judgement).
4. The court clarified that while the DA 2013 has altered the common law position, it has not revolutionised it and several common law principles are still applicable under the DA 2013 e.g the repetition rule and the Dingle rule, that where defamatory statements have been similarly made and/or repeated by others, the defendant cannot use this to mitigate their damages.
Deciding that Mr Lachaux had been subject to serious harm on the facts of the case, the Supreme Court dismissed the appeal.
The court has given some welcome clarity to the status of the “serious harm” test, confirming that a higher threshold has indeed been introduced, a viewpoint which is consistent with the Explanatory Notes to the DA 2013, which talked of “raising the bar”. However, it did not provide much guidance as to what would constitute serious harm on the facts.
The court noted that where a defamatory statement is published either only to few people, to people who don’t believe it, or, about a person who had no reputation this might not meet the new threshold (para. 16 of the judgment).
On the facts of this case, the court agreed with the finding of serious harm made by the High Court: "based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities" (para. 21 of the judgment).
The evidence included agreed figures of the print runs and estimated readership of the publications and user numbers for online publications. The court highlighted the scale of the publications, the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew the claimant, that they were likely to have come to the attention of others who either knew him or would come to know him in future, and the gravity of the statements themselves, according to the meaning attributed to them (para 21 of the judgment).
Possibly the biggest takeaway from the case, however, is the likely increase in costs and time required at the outset including the level of evidence gathering and analysis as well as the level of detail needed in the pleadings to argue that the actual facts and impact of the defamatory statements mean the “serious harm” test is met.