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Law column: The most hotly anticipated finale since Game of Thrones

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The Supreme Court has delivered its judgment in the Lachaux case, so journalists in three of the UK’s four countries (not Northern Ireland – see below) now have definitive guidance on what the words “serious harm” mean.  But just as with Game of Thrones, was it worth the wait?

By now, the background of this case is well known, and there’s no need to repeat the facts save to say that serious allegations had been published about him regarding his conduct in a dispute over the custody of his son.

Mr. Lachaux issued proceedings alleging that he had been libelled, and that he had suffered ‘serious harm’ to his reputation. The defendant publishers did not dispute his case insofar as the meanings of the article were concerned, but they contended that he had not been libelled because he had not been able to demonstrate that he had suffered serious harm.

The Supreme Court Justices looked solely at the interpretation of the Serious Harm test contained in section 1 of the Defamation Act 2013, which states that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

It is worth revisiting the original decision of Mr. Justice Warby in the very first episode of this saga back in August 2015, because (spoiler alert) the Supreme Court wholly agreed with his reasoning and decision. Essentially, Warby J. found that Lachaux had suffered serious harm, and he reached this conclusion by considering a combination of (1) the meaning of the words; (2) Lachaux’s situation; (3) the circumstances of the publications; and (4) the inherent probabilities of future harm.

The newspapers appealed the decision but this was dismissed by the Court of Appeal.

Fast forward to 9:45am on June 12th 2019, and the judgment of Lord Sumption arrives. The Supreme Court unanimously dismissed the appeal.

Before the 2013 Act, the common law position was that claims based on statements that are, on the face of it, defamatory must pass a minimum threshold of seriousness.

The Supreme Court has concluded that section 1 of the 2013 Act not only raised the threshold of seriousness from that common law position, but the Courts must now also consider actual facts and not just the meaning of the words to decide whether serious harm has occurred.  In other words, does the Claimant have actual evidence that his reputation has been, or is likely to be, seriously harmed? Has historic harm been caused? The Supreme Court has decided that these are factual matters that must be supported by evidence – although the Justices also conceded that inferences can also be drawn in appropriate cases.

Interestingly, although the Supreme Court overturned the Court of Appeal’s legal reasoning, nevertheless the Justices dismissed the publishers’ appeal.  Having concurred with Mr Justice Warby’s approach, the Supreme Court would not, it said, interfere with the decision of the lower court in the absence of critical errors.  In other words, Lord Sumption and the other Justices decided that the Court of Appeal had reached the correct decision, but for the wrong reasons!

So what does all of this actually mean for working journalists?

First, to meet the serious harm test, evidence of damage to the Claimant’s reputation is now required, save in the most serious cases where serious harm can still be inferred.

Second, it may well be that one practical consequence of the decision is that there will be a delay in complaints being made and claims being issued, as Claimants must now gather evidence of the serious harm that has been caused (or is likely to be caused) to their reputations. As a matter of law, the limitation period for issuing proceedings remains one year from the date of publication, so if claims are going to be made only when evidence has been gathered (after months of investigation?), there will be pressure on both sides, either to issue proceedings before 12 months elapses, or to settle the claim before that deadline is reached.

Third, if it is correct that notifications of claims are likely to be delayed, the need to preserve notebooks, audio and video recordings, background documents, and so on, becomes even more essential than it has been to date.  We can only assume that silence is golden once the 12 month anniversary of publication is reached (although if a Claim Form is issued at Court before the 12 month period expires, the claimant has an additional four months in which to serve it).

Fourth, if claimants are indeed going to spend time gathering evidence of harm before notifying publishers of their complaints, it’s hard to see how this will result in anything but a massive increase in legal costs, which claimants will no doubt seek to recover from publishers.

And these costs will be incurred before the Editor has any idea that there is a problem, thus preventing the complaint from being resolved as quickly and inexpensively as possible.

And finally – why is Northern Ireland exempt from all this excitement? The answer is simple – the Defamation Act 2013 hasn’t been implemented in that jurisdiction.

Journalists working in NI will be familiar with the reasons why the devolved Assembly did not implement the Act when it had the chance.  As a result, nothing has changed for journalists, reporters, and publishers in that part of the UK.  It remains the case that Plaintiffs merely have to show that the words were defamatory on the usual common law principles, and that the low bar of ‘seriousness’ (as defined in the English cases of Jameel and Thornton) has been met.

So, was this all as ground breaking as we expected?  Or does it leave the audience slightly disappointed – much like the reaction to the Game of Thrones finale?

One of the principles underlying section 1 of the Defamation Act 2013 was to minimise costs by raising the bar to prevent frivolous claims from being issued.

We must therefore hope that by identifying the legal meaning of “serious harm” (which is consistent with the raising of the bar), the Supreme Court has not inadvertently created a commercial nightmare for journalists and their employers.

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