Court of Appeal clarifies serious harm test in Lachaux libel judgment

The Court of Appeal has handed down its long-awaited judgment in the case of Lachaux v Independent Print and others. Whilst the Court agreed with the High Court judge that the claimant had met the “serious harm” test in section 1 of the Defamation Act 2013 (the Act), it applied different reasoning and made important findings as to how that test should be applied.

Most importantly, the Court of Appeal has reaffirmed the old common law principle that the cause of action for libel arises at the time of publication and not at the point when the claimant is able to prove that serious harm has actually occurred. This means that defendants to libel claims will not be able to extinguish a cause of action for libel by apologising or otherwise mitigating the damage after publication, although such efforts will still reduce damages and in some cases enable defendants to strike out claims as an abuse of process on grounds of proportionality.

What was the dispute about?

The case arose out of a marital dispute. A number of serious allegations were made about the claimant in five print and online articles in various publications, including allegations of domestic abuse. In relation to an article in the Huffington Post, following a complaint by the claimant eight months after publication, the Huffington Post removed its article and published a clarification and apology.

The question arose in relation to each article as to whether the claimant was able to establish that he had suffered or was likely to suffer serious harm within the meaning of section 1 of the Act. Section 1 of the Act 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”. This question therefore turned on whether the words “has caused” in section 1(1) meant that damage must be proved to have occurred by the time of the trial of this issue or whether the damage could be assumed at the date of publication (as was the case before the Act came into force). The extent to which the removal of the article and the apology published by the Huffington Post mitigated any damage caused by the article was a relevant factor.

The Court of Appeal judgment

On this key issue, Warby J found in the High Court that the claimant had suffered serious harm in relation to four of the articles in question, following a two day preliminary hearing in which detailed evidence of harm was considered. The Judge considered that it was relevant at this preliminary stage to consider evidence of actual harm caused by the article (or lack of it) after the date of publication, including the effect of the removal of the article and the apology, to determine whether serious harm had been suffered by the claimant since the date of publication or was likely to be suffered in the future.

Although the claimant succeeded in establishing serious harm, he cross-appealed on the basis that, given the seriousness of the allegations, the Judge should have reached this conclusion simply by applying the serious harm test at the date of publication, without the claimant having to advance detailed evidence of harm.

The Court of Appeal found in favour of the claimant. The conclusions of the Court of Appeal are summarised by Davis LJ in paragraph 82 of his judgment. In summary:

(a) Section 1(1) of the Act raised the threshold for libel claims from “substantiality” to one of “seriousness”.

(b) The common law presumption as to damage in cases of libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation, and the common law objective single meaning rule, are all unaffected by section 1(1).

(c) If there is an issue as to meaning (or any related issue as to reference), that can be resolved at a preliminary issue hearing. If there is a further issue as to serious harm, then there may be cases where this can also appropriately be dealt with at a preliminary issue hearing.  If the meaning so assessed is evaluated as seriously defamatory, it will ordinarily then be proper to draw an inference of serious reputational harm.  Once that threshold is reached, further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.

(d) A defendant disputing the existence of serious harm may in an appropriate case apply for summary judgment or to strike the claim out as an abuse of process.

(e) Different considerations may apply to bodies trading for profit as they have to demonstrate serious financial harm under section 1(2) of the Act.

Comment

Since the case of Cooke v MGN [2014] EWHC 2831 (QB) and the High Court decision in the present case, there has been considerable uncertainty for both claimants and defendants as to whether serious harm has occurred or is likely to occur in relation to any given libel. One of the reasons for this uncertainty is that the effect of the High Court’s interpretation of section 1(2) of the Act to date has been to enable the parties to engage in a constantly changing debate as to whether serious harm has occurred as at various dates from the date of publication right up until trial. During this time period, which can be up to two years in some cases, the level of damage suffered by the claimant may be influenced by a range of factors such as the publications of retractions and apologies, the removal of content from the internet, republication of similar allegations, and social media discussion of the case, many of which are outside the control of the parties.

Whether or not practitioners agree with the Court of Appeal’s interpretation of section 1 in Lachaux and its application to the facts in that case, clarification that damage can be assumed to have been suffered in relation to serious libels at the time of publication, rather than be subject to a rollercoaster ride of changing circumstances, will at least on one view make claims a little easier to assess at the outset.

What the Court of Appeal judgment does not do is make it easier for claimants to bring trivial claims. David LJ was at pains to point out that the threshold for defamation claims was raised by section 1 of the Act and therefore trivial claims can still be subject to summary judgment or strike out, either on the basis that they do not meet the serious harm threshold or, even if serious harm can be inferred from the allegation at the time of publication, there is some other reason why it would be an abuse of process for the claim to proceed.

At least two of the defendants have so far asked for permission to appeal to the Supreme Court so the debate may not be over yet.