Lachaux v Independent Print Ltd

Section 1(1) of the Defamation Act 2013 raises the common-law threshold for defamation from substantial to serious reputational harm. It does not otherwise alter the essentials of libel. Damage remains presumed, and the cause of action accrues on publication.

Serious harm must be proved, but it may ordinarily be inferred from the gravity of the imputation and the nature and extent of publication. Courts should be slow to order evidence-heavy preliminary trials. Meaning and, where appropriate, serious harm may be addressed together. Remaining factual disputes should ordinarily be tried with liability and damages. Summary judgment and the jurisdiction to strike out claims involving no real and substantial tort remain available.

The claimant brought defamation proceedings concerning five print and online articles which accused him of domestic violence, child abduction, fabricating allegations and manipulating the Emirati legal system. Warby J tried preliminary issues and held that the publications had caused, or were likely to cause, serious reputational harm within section 1(1) of the Defamation Act 2013: [2015] EWHC 2242 (QB). He also rejected AOL's application to strike out the claims as an abuse of process.

The publishers appealed. The claimant relied on a respondent's notice contending that the judge had adopted an unduly demanding interpretation and procedure. The central questions concerned the meaning of serious harm, the continued operation of common-law principles, the evidence capable of proving serious harm, and the proper procedure where it is disputed.

1. The defendants' appeals were dismissed. The claimant's principal argument in the respondent's notice was accepted. Warby J had reached the correct result, although his interpretation of section 1(1) and the elaborate preliminary procedure he adopted were not upheld.

2. Section 1(1) of the Defamation Act 2013 gives statutory effect to the seriousness threshold developed in Thornton, while raising it from substantial to serious harm. That is the extent of the substantive change. The provision does not abolish the presumption of damage in libel, the rule that the cause of action accrues upon publication, the established limitation rules or the objective single-meaning rule. The words “is likely to cause” connote a tendency to cause serious harm rather than invariably requiring proof that harm is more probable than not.

3. There is no legal presumption of serious harm. A claimant must establish it. Serious reputational harm may, however, be proved by inference from an objective assessment of the gravity of the imputation, considered where appropriate with the context, reach and nature of the publication. Direct evidence of readers' reactions or identifiable adverse consequences is not ordinarily indispensable.

4. Where meaning is disputed, it should ordinarily be determined objectively at a meaning hearing without extrinsic evidence, save in an innuendo case. An imputation which is not seriously defamatory may be struck out under section 1(1). Where the meaning is seriously defamatory, an inference of serious reputational harm can ordinarily be drawn. Further evidence will commonly concern quantum and should be left to trial.

5. Courts should be slow to direct a substantial evidential preliminary trial of serious harm. A defendant may use summary judgment under Part 24 of the Civil Procedure Rules 1998 where the evidence warrants it. The Jameel abuse jurisdiction also survives, despite some overlap with section 1(1), where subsequent evidence shows that no real and substantial tort remains.

6. The allegations in the five articles were plainly grave. Their accusations of violence, child abduction, fabrication and attempted manipulation of legal proceedings justified a clear inference of serious reputational harm. The publishers' readership, influence and the claimant's reputation confirmed that conclusion. Other publishers' repetition of substantially the same allegations did not relieve each defendant of responsibility for the effect of its own publication.

Sharp LJ and McFarlane LJ agreed with Davis LJ.

1. Court of Appeal (Civil Division): In [2017] EWCA Civ 1334, the court unanimously dismissed the publishers' appeals, accepted the claimant's principal argument on the respondent's notice, and upheld the preliminary rulings in his favour.
2. High Court, Queen's Bench Division: Warby J decided preliminary issues in the claimant's favour in [2015] EWHC 2242 (QB). He found that the publications had caused or were likely to cause serious reputational harm and rejected AOL's abuse-of-process application.