Lachaux v Independent Print Ltd

Section 1(1) of the Defamation Act 2013 requires a claimant to prove, on the balance of probabilities, that publication has caused serious reputational harm or will probably do so. The court may consider all relevant circumstances, including post-publication evidence. Serious harm may nevertheless be inferred from the gravity of the imputation and the nature and extent of publication.

Other publications making similar allegations are inadmissible to reduce the harm caused by the publication sued upon, subject to the statutory exception in section 12 of the Defamation Act 1952. A claim which satisfies the more exacting serious-harm threshold will ordinarily not constitute a Jameel abuse of process.

The claimant, a French aerospace engineer living and working in the United Arab Emirates, brought five libel claims against the publishers of the HuffingtonPost, The Independent, the i, and the Evening Standard. The articles reported allegations by his former wife that he had been violent and abusive, had falsely caused her to face a child-abduction prosecution, and had unjustifiably taken their son from her.

The court tried preliminary issues of reference, meaning, serious harm under section 1(1) of the Defamation Act 2013, and alleged Jameel abuse in the two claims against AOL. The central issue was whether the claimant had proved serious harm from each individual publication.

1. The claimant succeeded on the preliminary issues in relation to the first HuffingtonPost article, the Independent, the i, and the Evening Standard. Each had caused serious harm to his reputation. The claim concerning the second HuffingtonPost article failed because its publication did not satisfy section 1(1) of the Defamation Act 2013.

2. Section 1(1) adds a statutory requirement to the common law. It does not merely substitute “serious” for “substantial” in the common-law definition of defamatory meaning. A claimant must prove as a fact that serious harm has occurred or is probably going to occur. The court may consider evidence of what happened after publication, although an inference from the seriousness of the allegation and the scale and nature of publication may suffice.

3. Reference remained an objective question. It was unnecessary at common law to prove that an identified reader had in fact understood the articles to refer to the claimant. The claimant’s distinctive connection with the person described in the articles established reference. The court also determined the disputed meanings of the two HuffingtonPost articles.

4. The rule in Associated Newspapers Ltd v Dingle remained binding after the 2013 Act. Other contemporaneous publications repeating the allegations were inadmissible to diminish the harm caused by an individual defendant’s publication. Section 12 of the Defamation Act 1952 was an express and limited exception, and permitted the first AOL claim to be considered when assessing the second AOL claim.

5. The first AOL article, though published to a more limited audience, contained grave allegations, remained online for over nine months, and was likely to have seriously affected the views of people who knew or might come to know the claimant. The much wider print publications by IPL and ESL made the inference of serious harm compelling. By contrast, the second AOL article had only 306 unique visitors, appeared incidentally in a lengthy article on another topic, and required no separate vindication.

6. The first AOL claim was not a Jameel abuse. Having found serious harm, the court held that the claimant’s pursuit of vindication was proportionate. Delay was relevant only insofar as it objectively supported an inference that harm, vindication, or the need for restraint was negligible; it did not do so here.

7. The court struck out the IPL and ESL allegations relying on other publications and collateral wrongdoing. Argument about AOL’s pre-action costs was deferred.

This was a first-instance determination of preliminary issues. Earlier in the same litigation, Sir David Eady determined the meanings of the Independent and Evening Standard articles: [2015] EWHC 620 (QB). Nicola Davies J and Nicol J ordered and prepared the present preliminary-issue trial.