The newspapers’ appeals are dismissed and section 1 is further clarified
The Supreme Court today handed down its much-anticipated judgment in Lachaux v Independent Print Limited & Evening Standard Limited, dismissing the newspapers’ appeals. The Court affirmed the decisions of the Court of Appeal and Warby J that each of the articles published by the newspapers in early 2014 had caused serious harm to Bruno Lachaux’s reputation for the purposes of section 1 of the Defamation Act 2013.
The Supreme Court’s decision finally concludes a preliminary issue trial on serious harm that was ordered over four years ago, in April 2015, and that has since occupied a total of five days of evidence and argument at first instance and on appeal.
Whilst the outcome on the facts has been in favour of Mr Lachaux at every judicial level, differing views have been expressed by the various judges on the proper interpretation and application of section 1.
The Supreme Court agreed with Warby J that liability in defamation is no longer established by reference solely to the inherent tendency of the words to cause harm to reputation (para ) but that it is nonetheless open to the court to infer serious harm to reputation from such matters as the meaning of the words, the circumstances including the scale of publication and the inherent probabilities (para ). The Court rejected the idea that the accrual of the cause of action in libel is postponed until some subsequent adverse event occurs which can be proved as evidence of serious harm. It is now clear that the common law rule that the cause of action arises at the point of publication is not affected by section 1 (para ) and neither are the repetition rule and the rule in Dingle (paras -).
In a judgment with which Lords Kerr, Wilson, Hodge and Briggs agreed, Lord Sumption summarised the effect of section 1 on the previous common law governing statements actionable per se at : “[section 1] is inconsistent with [the previous common law] only to this extent: that the defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant’s reputation. To that extent Parliament intended to change the common law. But I do not accept that the result is a revolution in the law of defamation, any more than the lower thresholds of seriousness introduced by the decisions in Jameel and Thornton effected such a revolution.”
A full 5RB case report can be found here.