‘Serious harm’ appeals dismissed

The case represents the first opportunity that the Court of Appeal has had to consider the meaning and effect of s.1(1) of the Defamation Act 2013.  The judgment addresses this matter as well as a number of related issues of practice and procedure.  By its judgment, the Court dismisses the defendants’ appeals, ruling in favour of the claimant on the facts and the law.

The Lachaux libel case concerns four articles published in the Huffington Post, The Independent, the i and the Evening Standard. The claimant contends that each of these articles was seriously defamatory of him and that the publication of each caused or was likely to cause serious harm to his reputation for the purpose of s.1(1) of the Defamation Act 2013.  Section 1(1), which came into force on 1 January 2014, provides that: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

In April 2015 the court agreed to try as a preliminary issue the question whether the s.1(1) requirement was satisfied with respect to each of these articles.  AOL (UK) Ltd also persuaded the court to try the issue whether the claim in relation to the Huffington Post article was a Jameel abuse.

The matter came before Mr Justice Warby in July 2015.  Following a two-day trial, he ruled in favour of the claimant, finding that the s.1(1) condition was satisfied in respect of all of the articles, and that the claim over the Huffington Post article was not a Jameel abuse.

The defendants appealed.  They sought to argue that the judge’s conclusions were wrong, both with reference to s.1(1) and (in AOL’s case) in relation to his finding on Jameel abuse.  In January 2016 Lord Justice Floyd gave permission for the appeals to be heard.

The claimant then filed a respondent’s notice.  By this means, the claimant sought to persuade the Court of Appeal that, while the judge’s decision on the facts was unimpeachable, he should have upheld the claimant’s arguments on the construction of s.1(1), and that if he had, he would have been able to find in the claimant’s favour by a much shorter route than he did.

The appeals came on for hearing before the Court of Appeal in late November 2016.  The panel consisted of Lord Justice McFarlane, Lord Justice Davis and Lady Justice Sharp.  Judgment was reserved.

In dismissing the appeals and “reject[ing] all the grounds of appeals variously advanced by the defendants” (at [102]), Lord Justice Davis (with whom Lord Justice McFarlane and Lady Justice Sharp agreed) states that he also “accept[s] the principal argument advanced by the claimant in the respondent’s notice”.

While there is much else in the judgment to engage the attention of media practitioners and others with an interest in libel law, Lord Justice Davis helpfully summarises at paragraph 82 the Court of Appeal’s principal conclusions on the law in the following way:

“Drawing the threads together, the position therefore is, as I see it, this:

• Section 1(1) of the 2013 Act has the effect of giving statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness: no less, no more but equally no more, no less. Thornton has thus itself been superseded by statute.
• The common law presumption as to damage in cases of libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation and the common law objective single meaning rule are all unaffected by s.1 (1).
• If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing.  If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm.  Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.
• Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement.
• A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately  used).
• All interlocutory process in such cases should be sought to be managed in a way that is proportionate and cost-effective and actively promotes the overriding objective.
• Finally, it may be that in some respects the position with regard to bodies trading for profit, under s.1(2), will be different. I say nothing about that subsection which clearly is designed to operate in a way rather different from s.1(1).”

The Court’s full judgment will be available on bailii. A 5RB case report will follow.

At the same time as handing down its s.1(1) judgment the same panel of the Court of Appeal handed down a separate judgment in the Lachaux case.  This judgment will also be found on bailii.  It is concerned with an appeal by two of the defendants (Independent Print Ltd and Evening Standard Ltd) against an order made by Sir Michael Tugendhat in December 2015 whereby he granted an injunction preventing them from making use of certain legally privileged documents belonging to the claimant.

This appeal has also been dismissed.  Importantly, at paragraph 27 in this judgment, Davis LJ indicates with regard to defamation and confidence claims that, “there is in my view no basis for ascribing any different general approach to the deployment of material which is the subject of [legal professional privilege] than would be deployed in any other kind of case”.

5RB‘s Adrienne Page QC and Godwin Busuttil, instructed by Taylor Hampton, are acting for Mr Lachaux.