Court of Appeal ruling 'serious harm' - Defamation Act 2013

The Court of Appeal has handed down its first judgment on the interpretation of the ‘serious harm’ test under section 1(1) of the Defamation Act…

Lachaux v Independent Print Ltd & Ors [2017] EWCA Civ 1334

Overview

The Court of Appeal has handed down its first judgment on the interpretation of the 'serious harm' test under section 1(1) of the Defamation Act 2013. Put simply, whilst the bar for bringing a defamation claim has been raised by section 1(1) of the Defamation Act, it has not been raised as high as was thought (or arguably as high as Parliament intended). 

Background

The defamation claim centred around publications in the English press alleging, amongst other things, that the claimant had been violent towards his wife and had accused her of kidnapping her own child. The matter proceeded to a preliminary hearing on whether the threshold test for serious harm had been met. Section 1(1) 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." The judge found that the test was satisfied. In making this finding, the judge interpreted S.1(1) as requiring the claimant to prove as a fact that serious reputational harm had been caused by (or would likely result from) the publications. This removed the previous presumption of damage in libel cases. 

The Court of Appeal's decision

The court rejected the first instance decision and made the following key findings: 

  • The cause of action arises at the point of publication and it is at this point that the threshold has to be met.
  • The presumption of damage flowing from a libel continues to apply although there was a raised threshold of harm.
  • The words "likely to cause" do not require a claimant to prove damage or likely damage but rather connote a "tendency" to cause serious harm.
  • It is proper to draw an inference of serious reputational harm where the meaning of the words complained of is seriously defamatory.
  • In cases where serious harm can be inferred it will not usually be appropriate for there to be a preliminary hearing on whether serious harm actually occurred.

Comment

So, is this a welcome decision that will save time and costs in libel claims or a major set-back for free speech? As ever, it depends who you listen to. However, one thing seems clear, the court's decision does not readily chime with Parliament's apparent intentions for this section of the Defamation Act. It was envisaged that the serious harm threshold would allow weak claims to be disposed of quickly. The findings that the cause of action arises at the time of publication (not when 'serious harm' is proved) and that serious harm may be inferred are patently a barrier to such an approach. Public bodies regularly face libel actions (often from litigants in person) and this judgment will not assist with disposal on 'serious harm' grounds. As it stands, defendants will need to give consideration to other options including preliminary hearings on 'meaning' and Part 24 applications for summary judgment as appropriate. Perhaps inevitably the defendant publishers have applied for permission to appeal to the Supreme Court.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake or Martin Forshaw.

Share on Twitter