‘Serious harm’ under Defamation Act 2013 – it means what it says!

Lachaux v Independent Print Ltd & Ors [2019] UKSC 27

Lachaux v Independent Print Ltd & Ors [2019] UKSC 27

Overview

The Supreme Court has resurrected the meaning of ‘serious harm’ under section 1(1) of the Defamation Act 2013 (‘the Act’), rejecting the watered down version that was adopted by the Court of Appeal.

Background

This defamation claim arose out of publications 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. Warby J found that the test was satisfied. In making this finding, the judge interpreted S.1(1) of the Act as requiring the claimant to prove, as a fact, that serious harm had been caused by (or would likely result from) the publications. On appeal, the Court of Appeal rejected this, holding that the only matter the claimant had to establish was that the publication had a tendency to cause serious harm, this being something that could be assessed based on the defamatory words alone. The newspapers appealed.

Supreme Court

Whilst the court upheld the finding that the serious harm test was met (and therefore dismissed the appeal), it accepted that the Court of Appeal’s interpretation of the test was wrong. In affirming the legal analysis of Warby J, the Supreme Court unanimously held:-

  • Section 1(1) of the Act raises the common law threshold of seriousness required for a publication to be defamatory;
  • Its application must be determined by reference to actual facts about its impact and not merely the meaning of the words; and
  • Statements relating to corporate bodies (section 1(2) of the Act) also required proof of actual or likely ‘serious financial loss’ as a matter of fact as a result of the reputational harm.

Comment

This judgment brings welcome clarity. The Court of Appeal decision had largely rendered the serious harm test meaningless. By contrast, the Supreme Court judgment confirms what most people thought, namely that the Act amends the common law to introduce a meaningful threshold that did not exist prior to the Act. Accordingly, a statement that would previously have been regarded as defamatory is no longer actionable unless it has caused or is likely to cause serious harm. This is a matter of fact that must be established by reference to the actual impact on the claimant. This judgment strengthens section 1(1) the Act, provides protection for publishers and, in accordance with the intentions of Parliament, raises the bar for defamation claims.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake, Partner on 0151 242 6866 or email peter.wake@weightmans.com.

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