Serious harm in defamation – a helpful ruling from the Supreme Court


Posted by David Chase, deputy underwriting manager at Litigation Futures Associate Temple Legal Protection

Chase: Thoughtful guidance

Earlier this week, the Supreme Court handed down its long-awaited judgment in Bruno Lachaux v Independent Print Limited and Evening Standard Limited, dismissing the newspapers’ appeals.

The court upheld the decisions of the Court of Appeal and Mr Justice Warby that each of the articles published by the newspapers in early 2014 had caused serious harm to Bruno Lachaux’s reputation for the purposes of section 1 of the Defamation Act 2013.

The outcome on the facts has been in Mr Lachaux’s favour at every judicial level, but the various judges involved had expressed distinct views on the proper interpretation and application of section 1 of the Defamation Act 2013.

The Supreme Court ruled that section 1 requires that serious harm to reputation be determined by reference to the actual facts about its impact, and not merely by reference to the meaning of the words, agreeing with Warby J.

In a judgment with which Lords Kerr, Wilson, Hodge and Briggs agreed, Lord Sumption summarised the effect of section 1 on the previous common law governing statements actionable per se: “I agree, as the judge did, that this analysis is inconsistent with the previous common law governing statements actionable per se.

“But it is inconsistent with it only to this extent: that the defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant’s reputation.

“To that extent Parliament intended to change the common law. But I do not accept that the result is a revolution in the law of defamation, any more than the lower thresholds of seriousness introduced by the decisions in Jameel and Thornton effected such a revolution.”

Further, the court agreed with Warby J that a court can still infer serious harm to reputation from (1) the meaning of the words; (2) the circumstances including the scale of publication, and (3) the inherent probabilities.

Lord Sumption stated: “The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind.

“Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome.”

However, the court did not agree with the idea that the accrual of the cause of action in libel is postponed until an adverse event occurs which can be proved as evidence of serious harm. The effect of this is that the decisive date continues to be the point of publication and the impact on the claimant’s reputation at that date.

The solicitor’s view

Megan O’Boyle of Taylor Hampton, solicitors for Bruno Lachaux, said: “Going forward, as well as considering the inherently injurious nature of the publication, it will also be important to consider to whom the statement was communicated and the impact of that communication, and that is equally applicable to both individuals and corporations.

“In the specific case of our client Bruno Lachaux, the Supreme Court has now endorsed the decisions of both the High Court and the Court of Appeal that Bruno Lachaux suffered serious harm to his reputation when The Independent, the i and London Evening Standard published articles concerning his alleged treatment of his now former wife.”

Temple’s view

The Supreme Court has given a useful judgment which provides thoughtful guidance on the interpretation and application of section 1 of the Defamation Act 2013.

In future, serious harm to reputation will have to be decided by reflecting on the nature of the publication, to whom the statement(s) was made and the impact of that statement(s).

It also remains open to a court to infer serious harm to reputation from the meaning of the words, the circumstances of publication and the inherent probabilities.

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