Lachaux v Independent Print Ltd and another

Under section 1(1) of the Defamation Act 2013, a statement is not defamatory merely because its words have an inherent tendency to injure reputation. The claimant must establish as a fact that publication has caused serious reputational harm or will probably do so. The inquiry combines the meaning and gravity of the words with their actual impact and the circumstances of publication.

Serious harm may be proved by inference. Direct evidence from readers is not indispensable. Section 1 supplements, rather than abolishes, the distinction between defamation actionable per se and defamation requiring special damage. The established repetition and Dingle rules remain applicable to the serious-harm inquiry.

The claimant brought three libel actions arising from newspaper articles about his conduct during the breakdown of his marriage and related custody proceedings. The articles were found to bear meanings alleging violence, abuse, manipulation of foreign legal proceedings and false accusations of child abduction.

Warby J accepted that section 1 of the Defamation Act 2013 required serious harm to be demonstrated as a matter of fact. He found that the articles had caused such harm. The Court of Appeal, in [2017] EWCA Civ 1334, also reported at [2018] QB 594, preferred a construction based principally upon the inherent tendency of the words, but upheld the factual finding.

The publisher appellants challenged the finding of serious harm. The central issue was whether section 1 requires proof of actual or probable serious reputational harm and, if so, whether the evidence and inferences relied upon by the judge satisfied that requirement.

1. Disposition. The appeals were dismissed unanimously. Lord Sumption gave the judgment, with which Lord Kerr, Lord Wilson, Lord Hodge and Lord Briggs agreed. Although the Court stated the law differently from the Court of Appeal, Warby J had correctly found that the publications caused serious reputational harm.
2. Construction of section 1. Section 1(1) of the Defamation Act 2013 raises the seriousness threshold above those recognised in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. It also requires the threshold to be determined from the actual impact of the publication, rather than from the words alone. Harm which a statement has caused means historic harm actually occurring. Harm which it is likely to cause means probable future harm. Section 1(2), by requiring serious financial loss for a body trading for profit, confirms that the inquiry is fact-sensitive.
3. Effect upon the common law. The common-law presumption of reputational damage does not establish that the damage is serious. The defamatory character of a statement therefore no longer depends solely upon its meaning and inherent tendency to injure reputation. Parliament changed the common law to that extent, while retaining the distinction between defamation actionable per se and defamation requiring proof of special pecuniary damage.
4. Accrual and limitation. Section 1 does not ordinarily postpone accrual of a cause of action actionable per se. Reputational impact will almost always occur when the statement is communicated to a third party. Later events may prove the seriousness or likelihood of that impact without becoming additional elements which must occur before accrual. Section 8 of the Defamation Act 2013 therefore did not require a different construction.
5. Proof of serious harm. The claimant need not produce evidence from individual readers about their reactions. Serious harm may be inferred from the meaning and gravity of the words, the claimant’s situation, the scale and circumstances of publication and the inherent probabilities. The assessment is evaluative and rarely capable of precision. A concurrent factual assessment should rarely be disturbed by the Supreme Court without a potentially critical error of principle.
6. Established defamation rules. The repetition rule stated in Lewis v Daily Telegraph [1964] AC 234 concerns meaning and truth and was not implicitly abolished or restricted by the 2013 Act. The rule in Associated Newspapers Ltd v Dingle [1964] AC 371, excluding damage caused by earlier similar publications from the assessment of the publication sued upon, also applied. Reputational harm may arise when readers first encounter the publication even though they do not know the claimant personally until later.

• United Kingdom Supreme Court: In [2019] UKSC 27, the court unanimously dismissed the publishers’ appeals. It corrected the Court of Appeal’s construction of section 1 but upheld the finding of serious harm.
• Court of Appeal: In [2017] EWCA Civ 1334, also reported at [2018] QB 594, the court preferred the claimant’s construction of section 1 but upheld Warby J’s factual finding of serious harm.
• High Court: Warby J held that serious harm had to be established by reference to the publications’ factual impact and found the requirement satisfied. At an earlier meaning hearing, Eady J had determined the defamatory meanings borne by the articles.