Lachaux v Independent Print Ltd (Serious harm)

C, a French national working in the UAE, brought five separate actions against three publishers in respect of five articles published between 20 January and 10 February 2014.

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.

A trial of preliminary issues (meaning and reference for certain articles, ‘serious harm’ and Jameel abuse for all article) was held, which lasted two days. In this trial, significant witness evidence was adduced and C himself was required to attend in order to give oral evidence.

Warby J accepted the Defendants’ submissions that Parliament, in passing section 1(1) of the Defamation Act 2013, had done more than merely raise the threshold of seriousness discerned in the common law by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB). The new test of ‘serious harm’ was a question of subjective fact, not merely the objective tendency of the words to cause harm.

However, Warby J found that the allegations made in four of the articles had indeed caused or were likely to cause serious harm to C’s reputation. In doing so, Warby J decided against taking into account other publications to the same or similar effect in order to assess serious harm, relying upon the rule in Dingle v Associated Newspapers Ltd [1964] AC 371.

The Ds appealed against this decision. The C, though seeking to uphold the judge’s decision, argued by a Respondent’s Notice that the Warby J could and should have found in C’s favour on the proper approach to serious harm.

1. Whether Warby J was correct to rule that (in each of the actions) the publication of the words had caused or was likely to cause serious harm to the reputation of C, as per s.1(1) Defamation Act 2013.
2. Whether Warby J was correct to not take into account other publications to the same or similar effect in assessing whether serious harm had been caused or was likely to be caused.
3. Whether Warby J’s conclusions on reference, evidence, mitigation of damage, and s.12 of the Defamation Act 1952 were correct.

As to the issues between the parties:

1. Warby J was correct to find in favour of C on serious harm. Given the gravity of the published statements, a clear inference could be drawn that serious harm to C’s reputation had been caused. This was particularly so when taking into account the size of the Ds’ readership, and C’s personal and professional reputation.
2. Warby J was correct not to take into account the fact that the allegations had been made in other media publications. To have done so would have been contrary to Dingle, which remains good law and has not been abolished by the 2013 Act.
3. Warby J’s conclusions on reference, evidence, mitigation of damage and s.12 of the Defamation Act 1952 were correct, and, he was also correct to reject the Ds’ Jameel abuse argument.

On the proper construction of s.1(1):

• Warby J’s conclusion in relation to serious harm was correct, but the approach taken to s.1(1) potentially involved a substantial change to the law of defamation that was not flagged up in the 2013 Act, nor the Parliamentary debate which led to its enactment.
• The intention of s.1(1) was to build upon cases such as Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) and Jameel (Yousef) v Dow Jones & Co. Inc [2005] EWCA Civ 75, and to raise the bar for bringing a claim in defamation.
• This is so despite the fact that in Thornton, Tugendhat J refers to a “tendency” to cause substantial harm, whilst s.1(1) refers to whether the words are ‘likely to cause’ serious harm. For the purposes of s.1(1) the words “likely to cause” may be taken as connoting a tendency to cause.
• The effect, therefore, of s.1(1) is to give statutory status to the test of defamatory adopted by Tugendhat J in Thornton, albeit raising the threshold from ‘substantial’ to ‘serious’. This is both the extent of and limit to the change in the law made by s.1(1).
• This does not affect the presumption of damage in libel cases, the principle that the cause of action accrues on the date of publication, the single meaning rule, and the established position in relation to limitation.

On the procedure to be followed in relation to s.1(1):

• Though Warby J’s conclusion was correct, an unnecessarily elaborate procedure had been adopted in order to reach that conclusion.
• S.1(1) does not mean that a substantive hearing, prior to trial, on the issue of serious harm will usually be required. The courts should be slow to direct that serious harm be tried as a preliminary issue.
• When a publication bears a serious defamatory meaning then an inference of serious reputational harm should ordinarily be drawn.
• Therefore, where a claimant has advanced a sufficient case on serious reputational harm by reference to the seriousness of the imputation conveyed by the words used and the scale of publication, the case should ordinarily be left to go to trial. Further evidence will likely be more relevant to quantum.
• Where an issue as to serious harm arises and it is is not considered appropriate for that issue to be resolved at trial, such issues may appropriately be dealt with at a meaning hearing.
• It remains open to a defendant disputing the existence of serious harm to issue an application either for summary judgment or for the case to be struck out as Jameel abuse.

The appeals were dismissed on all grounds, with the Court agreeing with the construction of s.1(1) advanced in C’s Respondent’s Notice [102].

This is the first time that the Court of Appeal has considered s.1(1) of the Defamation Act 2013 and, no doubt, Davis LJ’s adoption of a “Thornton plus” approach in finding serious harm will spark vigorous debate.

The judgment radically departs from the approach to s.1(1) first taken by Bean J in Cooke and Anor v MGN [2014] EWHC 2831 (QB) and significantly limits the impact of s.1(1) upon other long-standing principles that apply to the law of defamation (such as the presumption of harm – but not of serious harm – and the accrual of the cause of action at the time of publication).

However, Davis LJ’s position in relation to finding serious harm is not far from that adopted in more recent case law, in particular HHJ Moloney’s approach in Theedom v Nourish Training [2015] EWHC 3769 (QB) (as expressly noted by Davis LJ at [77]), and perhaps also, Warby J’s approach in Monroe v Hopkins [2017] EWHC 433 (QB).

The judgment provides significant guidance in relation to the correct procedural approach to be taken in relation to s.1(1) of the 2013 Act, and so is an essential read for defamation practitioners.