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Law Column: Court of Appeal rules on ‘serious harm’ test in defamation

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In a long awaited judgment, the Court of Appeal has handed down its decision in the case of Lachaux, the first time the appellant court has considered the new test of serious harm, introduced by the Defamation Act 2013.

While not quite the watershed decision some were expecting, the case has produced clarity on how the test should be interpreted, although not good news for journalists.

Background

Section 1(1) of the 2013 Act specified that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant“. This provision was widely expected to reduce the number of defamation claims and since introduction, has been the subject of lively debate and legal sparring in the early stages of libel complaints.

The case itself concerned a claim brought by a French citizen, Bruno Lachaux, who in 2011 commenced divorce proceedings in Dubai. His estranged wife, a British citizen, subsequently told her story to members of the British press, resulting in a number of articles which Mr Lachaux claimed to be defamatory.  He issued proceedings and in 2015 the matter came before the High Court for a trial of preliminary issues, the focus being whether the claimant had suffered ‘serious harm’.

The High Court judge ruled that the articles had caused or were likely to cause serious harm, a decision the defendants appealed. While interpreting ‘serious harm’ slightly differently to the trial judge, the Court of Appeal dismissed the appeal.

The key points from the judgment

  1. The threshold has been raised from the pre 2013 Act test of substantiality to “seriousness: no less, no more but equally no more, no less“. “Serious“, according to the Court, “means what it says“.
  2. The cause of action accrues at the date of publication, which the court deemed to be the moment at which the harm occurs.
  3. There continues to be a presumption in libel cases that the claimant has suffered loss, unlike in slander where loss has to be proven.
  4. Serious harm can be inferred from the meaning of the words complained of and there is no need to present evidence at an early interim hearing. Indeed, the Court of Appeal directed that the courts should be slow to direct preliminary hearings which will incur substantial time and cost when that will be duplicated at trial.
  5. However a defendant can still make an application for strike out and or summary judgment to dispose of unmeritous claims at an early stage.
  6. The Court did not comment on the higher test for bodies trading for profit, who are required to show that they have suffered, or are likely to suffer, serious financial loss.

What the judgment means

The decision sets the bar far lower than many had believed Parliament to intend, representing a blow for defendants and likely to lead to further cases running all the way to trial.

The Court would not accept “that the labours of Parliament have produced but a mouse“.  Perhaps not, but not a claim eating lion either.

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