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Will the Supreme Court’s Judgment in Lachaux turn the tide of libel claims?

Will the Supreme Court’s Judgment in Lachaux turn the tide of libel claims?

In Lachaux (Respondent) v Independent Print Ltd and another (Appellants), the Supreme Court has today delivered long-awaited guidance on the new ‘serious harm’ threshold set by section 1 of the Defamation Act 2013, in a judgment which may turn the growing tide of libel claims.

BACKGROUND

Section 1 of the Act states that a statement is not ‘defamatory’ – that is, actionable – unless it has caused ‘serious harm’ to a claimant’s reputation. (Or ‘serious financial loss’, in the case of a body trading for profit). The practical effect of those words sharply divided legal opinion even before they became law in 2014. Pro-defendant lawyers argued that the words signify exactly what they say, and that they raise the bar in favour of freedom of expression, as Parliament intended. The Act means that for his claim to proceed, a claimant must prove ‘serious harm’, they said. The other (more claimant-friendly) construction had it that the statute leaves the common law largely unaltered. A prospective claimant in defamation, according to this second body of opinion, has merely to show that the statement complained of has an inherent tendency to damage reputation to the requisite extent, previously defined in common law as ‘substantial’ [Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946; Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985], but now, given the wording of section 1, ‘serious’. This, it was said, has always made a libellous statement actionable ‘per se’. Nothing much, it was argued, has changed at all.

Unsurprisingly, the result of such polarised interpretations was uncertainty and escalating costs, as both sides jostled to fill the holes in the jigsaw inadvertently left by the draftsman. Preliminary hearings on serious harm even became, in some early post-Defamation Act 2013 cases, mini-trials of the facts, with parties struggling to prove – or disprove – the elusive concept of ‘serious harm’.

LACHAUX CASE

In 2014, the Appellants, publishers of The Independent and The Evening Standard, ran articles reporting the allegations of a British woman concerning her ex-husband, Bruno Lachaux, a French national and a resident of Dubai. He sued the publishers for libel. Both Warby J at first instance ([2015] EWHC 2242 (QB)), and latterly the Court of Appeal ([2017] EWCA Civ 1334), decided that Mr Lachaux’s case passed the serious harm threshold – albeit for different reasons. Warby J found that future serious harm was likely on the facts, while the Court of Appeal essentially adopted a ‘Thornton-plus’ test. The incremental result of this claimant-friendly approach has been a 70% increase in defamation claims from 2017 to 2018. (Statistics published by the RCJ earlier this month).

Arguing that he had not been able to adduce a single example of harm suffered as a result of the articles published, and that he had no reputation in this jurisdiction to be adversely affected, the Appellants asked the Supreme Court to determine the correct interpretation of the statutory ‘serious harm’ threshold. Because of its importance and its general application to news organisations and publishers, the Media Lawyers Association applied to intervene in the case. It was permitted to make written submissions, which supported the first, defendant-friendly, interpretation of section 1, and underscored Parliament’s stated intention to restrain interferences with freedom of expression.

Today’s judgment (possibly Lord Sumption’s, retired as of last December, swan-song) is unequivocal: the words do mean what they say. Although they dismissed the Appeal on the facts, the Supreme Court judges unanimously held that Parliament did intend a significant change to the law.

Although the Act must be construed as a whole, the issue must turn primarily on the language of section 1. This shows, very clearly to my mind, that it not only raises the threshold of seriousness above that envisaged in Jameel (Yousef) and Thornton, but requires its application to be determined by reference to the actual facts about its impact and not just to the meaning of the words. [paragraph 12].

This is a result which should bring us back to what Parliament intended.

Romana Canneti acted with Guy Vassall-Adams QC and Edward Craven of Matrix for the Media Lawyers Association

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