November 13, 2018
Lachaux Supreme Court hearing
Landmark appeal on section 1 Defamation Act 2013
The Supreme Court heard an appeal on 13/14 November that will determine how section 1(1) of the Defamation Act 2013 and the ‘serious harm’ requirement it describes are to be interpreted.
The Defendants (Independent Print Ltd and Evening Standard Ltd) are appealing against the judgment of the Court of Appeal handed down in September 2017. The Court of Appeal made the following key points:
- that for the purposes of s.1(1) the words “likely to cause” may be taken to connote a “tendency” to cause;
- the effect of the section was to give statutory status to the test adopted by Tugendhat J in Thornton, but raising the threshold from substantial to serious;
- the common law rules of presumption as to damage, the cause of action accruing on the date of publication, limitation, and single meaning are unaffected by s.1(1);
- if a meaning of a statement is evaluated as seriously defamatory, it will ordinarily then be proper to draw an inference of serious reputational harm. Further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial; and
- the Jameel jurisdiction continues to be available after the 2013 Act.
The question of the construction of s.1(1) will be the main focus of the appeal. The Defendants’ case is that the provision requires a claimant to prove that a publication has caused serious harm by adducing evidence of such harm, and that serious harm to reputation should not be inferred unless it is obvious it has occurred. They also argue that the repetition rule and the rule in Dingle v Associated Newspapers Ltd  AC 371 have no application in the context of a determination of serious harm.
The Claimant, meanwhile, seeks in substance to the uphold the judgment of the Court of Appeal.
Lords Kerr, Wilson, Sumption, Hodge and Briggs heard the appeal.