The Supreme Court clarifies the meaning of “serious harm” following judgment in Lachaux defamation case

On 12 June 2019, The Supreme Court handed down its highly anticipated judgment in the case of Lachaux v Independent Print Limited & Evening Standard Limited. This judgment provided further clarity in relation to the requirement of “serious” harm within defamation claims. It concluded that there should be a consideration of facts surrounding the publication and that the decision should not solely to rely on the meaning of the words.

Section 1(1) of the Defamation Act 2013 (“S1(1)”) introduced a requirement 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 construction of this provision has caused much debate and there have been differing views on how it should be interpreted.

Background

The Claimant, a French working national living in the UAE, brought libel actions in the UK against various newspapers following the publication of articles reporting allegations said to have been made against the Claimant which included allegations of domestic abuse and child abduction.

The issue of “serious harm” was first raised in this matter at the trial of preliminary issues, held in July 2015. The parties’ positions were as follows:

• The Claimant argued that, in determining whether the harm to his reputation was sufficiently serious, the Court must look at the meaning of the words and their inherent tendency to cause harm and not the actual impact.
• The Defendant’s case was that S1(1) intended to introduce a threshold of actual harm ,which has to be proved by evidence or inference.

At the preliminary issues trial, Warby J accepted the Defendant’s case, however taking into account all relevant circumstances which included evidence of what had happened following publication and that there had been other publications that had the same or similar effect, he found against them in that the allegations made had indeed caused or were likely to cause serious harm to the Claimant’s reputation.

The decision of Warby J was appealed to the Court Of Appeal. The Court of Appeal took a different view on interpretation of S1(1), holding that the effect of S1(1) was that a claimant may rely on an inference of serious harm, and need not prove serious harm on the balance of probabilities. However the Court agreed with Warby J on the facts. Therefore they upheld Warby J’s finding in favour of the Claimant. Following this decision, the Defendant applied to the Supreme Court for permission to appeal, which was granted.

The Supreme Court decision

The issue in front of the Supreme Court was “what constitutes serious harm”. The Supreme Court unanimously dismissed the newspapers’ appeal and affirmed the decisions of the Court of Appeal and Warby J. In doing so, the Supreme Court concluded that section 1(1) created a new statutory threshold that amended the common law position it that it “requires its application to be determined by reference to the actual facts about its impact and not just the meaning of the words.”

The decision goes further in stating that, when establishing serious harm, it is “a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.”

In summary, this decision of the Supreme Court raised the bar of “serious harm” in that the assessment should be made not only to include the meaning of the words complained of and their inherent tendency to damage the claimant’s reputation but also the actual facts of the case including the circumstances of the claimant and the reaction of and impact on the readers of a publication.

Conclusion

When bringing a claim in defamation, a claimant will need to consider whether the words they are complaining of are harmful, in that they have a tendency to lower the claimant in the minds of right-thinking members of society generally, together with a consideration of the facts surrounding their case. This will include the scale of publications, the extent of actual readership in the UK and whether the publications have come or would be likely to come to the attention of people who know the claimant.