Lachaux v Independent Print Ltd

Mr Lachaux (“C”), a French citizen and aerospace engineer working in the United Arab Emirates, brought claims in libel against three publishers in respect of five articles published between 20 January and 10 February 2014.

The articles complained of were published in The Independent, the i, the Evening Standard and the Huffington Post. The articles all contained various allegations that C had been violent and abusive towards his ex-wife and had obtained custody of his son on a wrongful basis.

Since the issue of the claims in late 2014 and early 2015, the Lachaux litigation has featured the following landmarks:

• On 11 March 2015, Sir David Eady determined the natural and ordinary meaning of the articles complained of following a trial of preliminary issues. See the 5RB case note on that judgment here.
• On 30 July 2015, Warby J handed down judgment following the trial of several preliminary issues including reference and serious harm. See the 5RB case note on that judgment here.
• On 12 September 2017, the Court of Appeal dismissed the Defendants’ appeal on the issue of serious harm. See the 5RB case note on that judgment here.
• On 16 May 2018, C’s claim against the publisher of the Huffington Post settled and a statement was read in open court. See the 5RB news update here.
• On 12 June 2019, the Supreme Court dismissed the Defendants’ appeal on the issue of serious harm. See the 5RB case note on that judgment here.

The trial of the claims against the remaining two publishers, Independent Print Limited (publisher of The Independent and the i) (“D1”) and Evening Standard Limited (publisher of the Evening Standard) (“D2”), came before Nicklin J on 22-24 February and 1 March 2021. That judgment was handed down on 1 July 2021.

In relation to the respective liability of each of the Defendants for original publication of their respective articles, the issues to be determined at trial were as follows:

1. Whether D1/D2 had shown that the statements complained of were on the alleged matters of public interest.
2. If so, whether D1/D2 had shown that those matters were (rightly to be regarded as) matters of public interest for the purposes of s.4(1)(a)?
3. If so, whether D1/D2 had shown that it believed (in the case of D1, through editor Christopher Green, and in the case of D2, through editor Charlotte Ross and/or journalist Susannah Butter) that publishing the statements complained of was in the public interest.
4. For that purpose, whether Christopher Green needed to be the person who took the decision to publish the statements complained of (in the case of D1), and whether Charlotte Ross and/or Susannah Butter needed to be the person/s who took the decision to publish the statements complained of (in the case of D2).
5. If so, whether D1 had shown that Christopher Green was such a person and whether D2 had shown that either Charlotte Ross and/or Susannah Butter was such a person/s?
6. If so, whether D1/D2 had shown that its belief was reasonable taking account of all the circumstances of the case.

There were further issues to be determined in relation to the continuing publication of the articles. These related to the fact that the online articles had continued to be published in an amended form after a) 21/22 September 2014, when C sent his letters of claim and b) after 2 March 2017, when Mostyn J handed down judgment in family proceedings in the Family Division of the High Court involving C and his ex-wife Afsana. The issues on this aspect of the case were:

1. Whether the Defendants had shown that they believed, through their managing editor William Gore that continuing publication of the online articles in their amended form was in the public interest (i) following receipt of either C’s letters of claim and/or (ii) following the handing down of Mostyn J’s judgment and/or the withdrawal of their defences of truth.
2. If so, whether the Defendants had shown that they reasonably believed that continuing publication of the online Articles in their amended form at each stage was in the public interest, taking account of all the circumstances of the case.

Determining liability in favour of C:

1. D1 had demonstrated that the article published in The Independent and the i was or formed part of a statement on a matter of public interest [162] but had failed to demonstrate that Mr Green believe that publication of the article was in the public interest [166]. Any such belief would in any event have not been reasonable [177]. The s.4 defence failed.
2. D2 had demonstrated that the article published in the Evening Standard was or formed part of a statement on a matter of public interest [179] and that Ms Ross and Ms Butter both believed that publication of the article was in the public interest [183], but this belief was not reasonable [191]. The s.4 defence failed.
3. The Defendants failed to demonstrate that any belief that to continue publication of the articles as amended after 22 September 2014 was in the public interest was reasonable [201]. The s.4 defence failed in respect of continuing publication after the letters of claim.
4. Further and in any event, the Defendants failed to demonstrate that any belief that to continue publication of the articles as amended after 2 March 2017 was in the public interest was reasonable [205]. The s.4 defence failed in respect of continuing publication after the Mostyn J judgment.

Determining damages, Nicklin J awarded C £50,000 as against D1 (apportioned as £11,500 in respect of publication in The Independent; and £38,500 in respect of publication in the i) and £70,000 as against D2 [233]. Nicklin J was also granted a final injunction [240] and made an order under s12 requiring the Defendants to publish a summary of the judgment [244].

As Nicklin J said in his judgment, “Mr Lachaux’s name is likely always to be associated with the interpretation of s.1 Defamation Act 2013 and its requirement that, in a defamation claim, a claimant must show that a published statement has caused (or is likely to cause) serious harm to reputation” [18].

Following this judgment, Mr Lachaux’s name is also likely now to be associated with the interpretation and application of the defence of public interest under s.4, joining a relatively small group of cases on that issue.

The judgment makes a number of points that will be of interest to media lawyers and professionals. For example, the judgment contains a clear indication that if media organisations defending libel proceedings wish to avail themselves of a s.4 defence they should in general be able to prove their public interest-related beliefs and the rationale for those beliefs by means of contemporaneous notes or records of decisions in relation to their thought-processes at the time of publication. In so doing, Nicklin J pointed out that “doctors, nurses, teachers, police officers, lawyers, surveyors, dentists, accountants, opticians, and architects” were all expected to keep records in the course of carrying out their professional duties­­­­­­­­, and there was no reason why professional journalists should not either; this was “not an unworkable, unreasonable, or unachievable objective set by the lawyers or the Court” [120]. His conclusions in this regard and more generally were supported by consideration of the Defendants’ own codes of conducts and the current IPSO and IMPRESS editorial codes, all of which contained obligations in relation to record keeping. In this way, the judge considered that he was not holding the Defendants to a standard of journalistic conduct any higher than the one espoused by the Defendants themselves or the UK print media more generally.