The bar is raised for libel claimants – but does this welcome development come at too high a price for the regional press?

The first major defamation case to define serious harm since the 2013 Act has raised the bar for those seeking to bring libel claims.

In a move which will be welcomed by newspaper and web publishers, Mr Justice Warby held that a statement is not defamatory of a person unless it has caused, or will cause, serious harm to that person’s reputation. This harm must be proved on the balance of probabilities.

The case, Lachaux v Independent Print Ltd, and others revolved around statements made about Mr Lachaux in the Huffington Post the Evening Standard, Independent and the i. Mr. Lachaux is a French national living in Dubai, and it was alleged that he was violent and abusive to his ex-wife, attempted to snatch his son on a custody visit, and brought a child abduction claim against his wife in a Dubai court when she in fact was fleeing his abuse.

Law Column readers will be familiar with the three stage process for bringing a defamation claim:

• whether the words complained of referred to the claimant;
• meaning; and then
• has the publication caused ‘serious harm’ to the claimant?

In Lachaux, there was a good deal of argument as to how serious harm to an individual’s reputation should be defined. The claimant argued that the definition of serious harm should be that the offending words have a ‘tendency to cause serious harm”, but the defendants argued that serious harm must in fact have been caused, or be likely to be caused.

Mr Justice Warby looked behind the Defamation Act 2013 to consider what parliament intended by the specific wording. He said the purpose of the 2013 Act was to harden up the law, to go beyond a tendency to harm a person’s reputation, and to require proof of harm “by proving as a fact either that serious reputational harm has already been suffered, or alternatively, that it probably will be suffered in the future”.

This is all good news for freedom of expression and for the press generally.

However, the other important milestone in this case is that Mr Justice Warby has declared that the most effective way of dealing with a defamation claim is for there to be a preliminary trial of both meaning and serious harm, at the same time. This is because meaning and serious harm are inextricably linked, he said.

Mr. Justice Warby said he was giving this crucial procedural guidance on the basis that it is the most effective way of limiting legal costs. But will it?

An application to strike out a weak or vexatious case can mainly be done on paper, and is relatively quick and inexpensive (I stress the word ‘relatively’). But a trial of meaning and serious harm is just that – a trial. There has to be disclosure of all documents, exchange of witness statements, formal submissions from both sides, cross examination of witnesses, and so on. It’s an expensive process.

In Lachaux, the hearing lasted two full days, so the costs will no doubt be significant. For a regional or local publisher to commit to this kind of expenditure is unusual.

So the question has to be asked: has the judge inadvertently recommended a course of action which, for one section of the press at least, is much more expensive than current procedures? Perhaps.

But I take consolation in the fact that Mr. Justice Warby has only expressed a recommendation, nothing more. Hopefully, this means that each case must be reviewed on its own facts, so in appropriate cases, it will still be open to publishers to apply for hopeless claims to be struck on the basis that it has no prospect of success.

And finally. Mr. Justice Warby’s judgment makes the case for publishing a quick and full apology when a newspaper gets it wrong and the claimant has a legitimate claim.

I say this because in future, when the court is considering whether an article caused serious harm, we have been told that when assessing costs, the judge will look at all the facts, not just at the time of publication, but also what happened after publication in order to ascertain what damage was actually caused.

This means that if a proper apology follows the publication of a defamatory statement, it could significantly reduce the actual harm caused by the libel – and that means lower damages (and costs, hopefully).