Full case report

Lachaux v Independent Print Ltd, Evening Standard Ltd, AOL (UK) Ltd

Reference [2015] EWHC 2242 (QB)
Court High Court, Queen’s Bench Division

Judge Warby J

Date of Judgment 30 Jul 2015


Summary

Libel – Serious Harm – Section 1, Defamation Act 2013 – the rule in Dingle – evidence – reference – meaning – Jameel abuse – preliminary issues


Facts

C, a French National working in the UAE, brought five separate actions against three publishers in respect of five articles – one in The Independent, a second in ‘i’ (both published by IPL), a third in the London Evening Standard (ESL), and two on the Huffington Post (AOL) published between 20 January and 10 February 2014. He claimed in respect of publication within the jurisdiction and within Dubai.

Each of the articles contained an account of events in the UAE, including proceedings against C’s British ex-wife for allegedly ‘kidnapping’ their son. The articles reported allegations said to have been made against C by his ex-wife, including of domestic abuse.

Trials had been ordered of preliminary issues in all actions to determine whether publication of the words complained of had caused or were likely to cause serious harm to the reputation of C within the meaning of section 1 of the Defamation Act 2013; the meanings of the words (so far as not already determined, see [2015] EWHC 620 (QB)); reference; and whether, in the case of AOL the claims against them were an abuse of process under the principles established in Jameel (Yousef) v Dow Jones [2005] QB 946. The orders were made in the absence of defences having been served, save in the case of the articles in The Independent and The Evening Standard: see [2015] EWHC 915 (QB).

In addition, C applied to strike out parts of the defences of IPL and ESL under CPR 24.2 and/or 3.4(2).

Warby J tried the above issues in all five actions over the course of two days in which witness evidence was adduced by C and AOL and C gave oral testimony and was cross-examined.


Issue

(1) What was the natural and ordinary meaning of the words (in the AOL actions and the 2nd IPL action)?

(2) Whether (in the IPL and ESL actions) the words referred to C?

(3) Whether (in each of the five actions) the publication of the words had caused or was likely to cause serious harm to the reputation of C, per s.1 Defamation Act 2013.

(4) Whether the claims (in the AOL actions) should be struck out for Jameel.

The law on the First, Second and Fourth Issues was well-settled, but the Third Issue would require the Court to decide two key issues:

(A) Does s.1 require a claimant to prove:

(i) That the words have a tendency or are inherently likely to cause serious harm; or

(ii) That serious harm has, as a fact, proved on the balance of probabilities, been caused to his reputation or is likely to be caused in the future?

(B) In deciding whether a given publication has caused or is likely to cause serious harm, can and should the Court take any account of other publications to the same or similar effect, having regard to ‘the rule in Dingle’ (from Associated Newspapers v Dingle [1964] AC 371)?


Held

As to the issues between the parties:

(1) ‘Reference’ is determined objectively according to whether reasonable people would understand the words to refer to C. If so, it is not necessary for a claimant to prove that there were in fact such people: [15](1) – (2). All five articles referred to C: [94], [96],[100].

(2) The meanings of the ‘i’ article were substantially the same as those found by Sir David Eady in respect of those published in The Independent: [96]. The first AOL article bore C’s pleaded meaning except for the final seven words: [92]. The second AOL article bore C’s pleaded meaning: [98].

(3) The issue under section 1 of the Defamation Act 2013, whether the words had caused or were likely to cause serious harm to the reputation of C, was determined in C’s favour in respect of each of the articles except the second AOL article: [144], [148], [150], [151] and [153].

(4) The pursuit of the first AOL action was not an abuse of the court’s process according to the principles established in Jameel: [155(i)].

(5) It not having been established that the second AOL article had caused or was likely to cause serious harm to C’s reputation, there was no longer a cause of action. Accordingly, the issue of Jameel abuse did not arise: [155(ii)]. 

On the proper construction of section 1 of the Defamation Act 2013, Warby J held that:

On Issue A:

(i) By s.1(1), Parliament intended to and did provide that a statement is not defamatory of a person unless it has caused or will probably cause serious harm to that person’s reputation, these being matters that must be proved by the claimant on the balance of probabilities: [65].

(ii) The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication. Serious harm may be proved by inference, but the evidence may or may not justify such an inference: [65].

(iii) If a defendant maintains that the actual or likely harm to reputation is too slight to justify a claim it will usually be preferable for the issue under s 1(1) to be tried as a preliminary issue, rather than by way of a striking out or summary judgment application: [66].

(iv)As to whether the point in time from which the court is to judge whether a statement ‘is likely to’ cause serious harm is when the claim form is issued (as preferred by Bean J in Cooke v MGN Ltd) or when the issue is determined, the preferable view was the latter: [67]. It had to be accepted as a consequence of s 1 that the status of a publication may change from non-defamatory to defamatory or from defamatory to non-defamatory: [68].

On Issue B:

(v) the ‘rule in Dingle’ remains good law in the changed environment following the 2013 Act. Subject to s.12 Defamation Act 1952, other publications cannot be admitted into evidence for the purposes of reducing or limiting damages with reference to the seriousness of injury to reputation: [83].

(vi) C’s application to strike out parts of the defences of IPL and ESL would be struck out as contrary to the rules in Dingle and Scott v Sampson: [190(i)].

By way of some general comments on the procedure that should henceforth be adopted, Warby J observed that:

(a) As a general rule, where tried as preliminary issues, meaning and harm should be tried together: [167].

(b) Where defendants raise a threshold question, such as s.1(1) ‘serious harm’, it will generally be not only unnecessary to require them to plead a Defence before determination of that issue but it may be unwise owing to the risk of costs: [168] – [169].

(c) Warby J also offered some thoughts on the content of written evidence and the circumstances in which oral cross-examination of witnesses might be appropriate in trials of ‘serious harm’ as a preliminary issue.


Comment

Over 18 months after the commencement of the Defamation Act 2013, we finally have a seminal first instance judgment on the proper construction of s.1(1) ‘serious harm’, and further indication following Ames v Spamhaus as to how most defamation cases should be procedurally managed in their early stages.

The judgment leaves to be resolved many uncertainties which will need to be determined in future claims on a case-by-case basis.  But one thing that is clear is that the Judge’s construction has the consequence that some long-established principles of the common law have now gone:

(1) The Judge acknowledged that, upon his construction of section 1(1), libel is no longer actionable without proof of damage and the legal presumption of damage will cease to play any significant role: [60].

(2) Another common law rule is that the cause of action for libel and defamation actionable per se arises upon publication of the defamatory matter. This can no longer be treated as good law. How it was put by the Judge at [68] was: “A cause of action may lie inchoate until serious harm is caused or its future occurence becomes probable.”


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Instructing Solicitors

Taylor Hampton for the Claimant, David Price Solicitors & Advocates for IPL and ESL, Lewis Silkin for AOL