Lachaux v Independent Print Ltd

Reference: [2019] UKSC 27

Court: Supreme Court

Judge: Lords Kerr, Wilson, Sumption, Hodge and Briggs

Date of judgment: 12 Jun 2019

Summary: Defamation – serious harm to reputation under s.1, Defamation Act 2013 – construction – accrual of cause of action – role of meaning of words – role of inference in determination of issue of serious harm – applicability of repetition rule and rule in Dingle v Associated Newspapers to determination of issue of serious harm

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Appearances: Adrienne Page QC - Leading Counsel (Respondent)  Godwin Busuttil (Respondent) 

Instructing Solicitors: Taylor Hampton for the Respondent / Claimant; David Price Solicitor Advocate for the Appellants / Defendants

Facts

C, a French national working in the UAE, brought libel actions in respect of five articles published by three newspaper publishers between January and 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 child. The articles reported allegations said to have been made against C by his ex-wife including of domestic abuse.

A trial of preliminary issues, including ‘serious harm’ under section 1(1) of the Defamation Act 2013, was held in July 2015, which lasted two days. Significant witness evidence was adduced and C was required to attend in order to give oral evidence and be cross-examined.

Warby J accepted the newspapers’ submissions that Parliament, in passing s1(1) of the Defamation Act 2013, had done more than merely raise the common law threshold of seriousness identified by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB). However, he 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 applied the rule in Dingle v Associated Newspapers Ltd [1964] AC 371, and decided against taking account, in considering whether the articles published by these newspapers had caused serious harm, of the fact that there had been other publications which were said to be to the same or similar effect.

The newspapers appealed to the Court of Appeal, with some differences between them as to their contentions in respect of s1(1). Amongst the arguments they advanced were: that a court should not infer serious harm to reputation in the absence of evidence of such harm, even in the case of publication in mainstream media; that the common law rules for determining meaning, including the ‘repetition rule’, form an unreliable basis for inferring serious harm to reputation where none is apparent; that a cause of action arises under the Act only when the serious harm was caused or was likely to be caused, which could be at a date later than publication (citing Cooke v MGN [2015] 1 WLR 895); that Dingle should not be applied in the context of a serious harm determination, therefore account should be taken of other publications to similar effect in order to negative an inference of serious harm. C contended that the effect of s1(1) was to raise the common law threshold of seriousness from ‘substantial’ to ‘serious’ and that Warby J’s construction was incompatible with the common law principle, unaltered by Parliament, that the cause of action for defamation accrues upon publication.

The Court of Appeal upheld Warby J’s finding in favour of C on serious harm and rejected all the newspapers’ challenges to his decision.  However, it differed from Warby J on the construction of s1(1), concluding that its effect was to give statutory status to the test of ‘defamatory’ adopted by Tugendhat J in Thornton, albeit raising the threshold from ‘substantial’ to ‘serious’ [78] and deprecating the idea that the cause of action in defamation might now accrue at a date later than publication [62] – [64] or be “ambient….drifting in and out of actionability” [60]. The Court agreed that serious harm could be proved by a process of inference, envisaging that there would be cases where a finding of serious harm would depend on more than an inference from the tendency of the words and would have to be determined after evidence, at trial [72] – [73].

Following the decision of the Court of Appeal, the publisher of the Huffington Post settled with C while the other two publishers (Independent Print Limited and Evening Standard Limited) applied to the Supreme Court for permission to appeal, which was granted.

Issue

1.  The construction of s. 1(1): “has caused or is likely to cause”.

2 . Whether the accrual of the cause of action and the point where time starts running for limitation is postponed until the serious harm has occurred.

3.  Whether it was open to Warby J to draw an inference of serious harm to C’s reputation in the absence of any evidence of harm.

4.  Whether Warby J erred in failing to discount the operation of the ‘repetition rule’ and exclude the rule in Dingle in his assessment of whether serious harm to reputation had been caused to C or was likely.

5.  Whether Warby J erred in deciding that serious harm to reputation was caused to C in relation to readers who did not know C but may come to know him at some point in the future.

Held

Dismissing the appeals:

1.  By s1(1) a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. “Serious harm” refers to the consequences of the publication and depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. “Likely” to be caused refers to probable future harm and not merely to the tendency of the words [13] – [17].

2.  For defamation still actionable per se (libel and some slanders) the effect of section 1 is not to postpone the cause of action, which still arises upon publication. The impact of publication on reputation will in practice occur at that moment in almost all cases. If for some reason it does not occur at that moment, the subsequent events will be evidence of the likelihood of its occurring [18].

3.  There was no reason why Warby J should not draw inferences of fact as to the seriousness of the harm done to C’s reputation from considerations such as the meaning of the words, the situation of C, the circumstances of publication and the inherent probabilities [21].

4.  Nothing in the 2013 Act can be taken as implicitly abolishing or limiting the application of the ‘repetition’ rule [23]. The Judge was also entitled to apply the Dingle rule to the s1 determination and it would be irrational not to do so [24].

5.  There is no principled reason why an assessment of the harm to a claimant’s reputation should not take account of the impact of the publications on those who had never heard of him at the time. The C’s reputation is harmed at the time of publication notwithstanding that the reader or hearer knows nothing about him other than what the publication tells him [25].

Comment

The Supreme Court decision may well have achieved the feat of squaring a circle:

  • it has upheld the newspapers’ argument, accepted by Warby J, that the effect of s 1(1) is to add to the common law test of defamatory a requirement to prove serious harm to reputation as a matter of fact and not merely through operation of a legal presumption arising from the tendency of defamatory words to cause harm to reputation: see at [17].

 

  • at the same time, it may be taken to have laid to rest concerns that the adoption of the newspapers’ proposed construction might have consequences which risked reducing certainty and increasing complexity and costs in the law of defamation, for example:

 

    • that the cause of action for libel would no longer accrue automatically upon publication, so that, as it was put by the Court of Appeal at [60], it would be “ambient….drifting in and out of actionability”.

The Supreme Court makes clear that the cause of action does still accrue upon publication in accordance with the common law rule: see at [18].

    • that there would be a requirement for claimants in all but exceptional cases to adduce evidence that they had suffered actual serious adverse consequences as a result of publication.

The Supreme Court decision upholds the drawing of an inference of serious harm by reference to the factors relied upon by Warby J: see at [21]. The main thrust of the newspapers’ argument was that by failing to circumscribe his reliance on inference, Warby J had “diluted” the ‘seriousness’ requirement of section 1, such that “the end result was no different from the Court of Appeal’s approach”.

    • that the meaning of the words for the purposes of the serious harm assessment would no longer be governed by the objective common law tests, such as the repetition rule.

The Supreme Court upholds the common law objective approach to determining meaning for the purposes of assessing serious harm: see at [21]-[23].

    • that substantial and costly preliminary issue trials of the kind which attracted unfavourable comment by HH Judge Moloney in Theedom v Nourish Training [2016] EMLR 10 at [30] will again become the order of the day.

The Supreme Court decision does not apparently disturb or detract from the guidance by the Court of Appeal that disputes of fact arising from the serious harm test which require evidence should be resolved at trial of liability and not by preliminary issues trials, if not suitable for a summary judgment application.