Lachaux v Independent Print Ltd

Section 1 of the Defamation Act 2013 creates a threshold condition: publication must have caused, or be likely to cause, serious harm to the claimant’s reputation. The issue may be tried as a preliminary issue, even before a Defence is served, where the claimant has had sufficient opportunity to set out the case and relevant evidence can be placed before the court. Serious harm, identification and whether there is a real and substantial tort are closely connected. In an appropriate case, all three issues may be determined early, with meaning, to avoid unnecessary cost and delay.

The claimant brought three libel actions against the publishers of the Independent, the London Evening Standard and the Huffington Post UK. The publications concerned allegations that he had abused his former wife, taken their child from her and falsely accused her of kidnapping the child.

The defendants applied under CPR 3.1 for preliminary trials of identification, serious harm and, in the AOL action, abuse of process under the principles in Jameel (Yousef v Dow Jones & Co Inc) [2005] QB 946. The court had to decide whether those issues should be determined before full pleadings and case management.

1. Applications granted. The defendants’ applications for preliminary determination of meaning where applicable, identification, serious harm and real and substantial tort were granted.

2. Section 1 of the Defamation Act 2013 imposes a higher threshold than the former substantial-harm standard. Serious harm is a threshold condition of a defamation action under the Act. If it is not established, no tort arises and the claim must fail.

3. Following Cooke v MGN Ltd [2014] EWHC 2831 (QB) and Ames v The Spamhaus Project Ltd [2015] EWHC 127 (QB), serious harm may appropriately be determined as a preliminary issue. A Defence need not always be served first. The claimant must have had a fair opportunity to set out the case, and witness statements may assist the court.

4. Identification, serious harm and whether a real and substantial tort has been committed are interlinked. Without identification, reputational harm cannot be caused. Without serious harm, there can be no real and substantial tort for the purposes of the abuse argument.

5. Early determination was consistent with common sense, the overriding objective and the purpose of the 2013 Act. It could identify whether the claims should continue and save time and expense. The court therefore considered it preferable to determine the preliminary issues together, with meaning where disputed.

First-instance decision. No appellate history is stated in the judgment.