The Supreme Court decision in Lachaux v Independent Print Ltd [2019] UKSC 27 stands as a landmark ruling in the modern development of defamation law in England and Wales. This case fundamentally clarifies the test of “serious harm” introduced by section 1(1) of the Defamation Act 2013, which marked a significant legislative change by raising the threshold for defamation claims.
The judgement also addresses critical issues regarding the timing of the cause of action, the role of inference in determining harm, and the continued application of common law rules such as the repetition rule and the rule in Dingle v Associated Newspapers Ltd [1964] AC 371.
Facts of Lachaux v Independent Print Ltd Case
The claimant, Mr. Lachaux, a French national residing and working in the United Arab Emirates, brought libel proceedings against three UK newspaper publishers, including Independent Print Ltd and Evening Standard Ltd.
The libels arose from five articles published between January and February 2014. These articles reported on events related to Mr. Lachaux’s personal life, notably involving allegations made by his British ex-wife against him. The allegations included accusations of domestic abuse and child kidnapping.
Mr. Lachaux contended that the publications caused or were likely to cause serious harm to his reputation, thereby fulfilling the threshold under section 1(1) of the Defamation Act 2013, which requires a claimant to prove that defamatory statements have caused or are likely to cause “serious harm” to reputation.
A preliminary trial addressing the issue of serious harm was held in July 2015 before Warby J, who heard witness evidence and examined whether the published articles met the statutory threshold. Warby J found in favour of Mr. Lachaux, holding that four of the five articles had caused or were likely to cause serious harm to his reputation.
Issues Before the Courts
The litigation engaged several important legal questions, which were considered progressively by the High Court, Court of Appeal, and ultimately the Supreme Court. The principal issues included:
- The proper construction of section 1(1) of the Defamation Act 2013, specifically the meaning of the phrase “has caused or is likely to cause” serious harm.
- Whether the cause of action in defamation accrues at the time of publication or only once serious harm has actually occurred.
- Whether courts can infer serious harm to reputation in the absence of direct evidence of such harm.
- The applicability of the “repetition rule” and the rule in Dingle v Associated Newspapers Ltd to the determination of serious harm under the 2013 Act.
- Whether harm to reputation can be assessed with regard to those members of the public who had no prior knowledge of the claimant before reading or hearing the defamatory publication.
Lower Court Decisions in Lachaux v Independent Print Ltd
At first instance, Warby J undertook a detailed analysis of section 1(1) of the Defamation Act 2013. He held that the statutory provision had altered the pre-existing common law position by introducing a new threshold of “serious harm.” Prior to the Act, libel claims attracted a legal presumption of damage to reputation, meaning claimants were not required to prove that they had suffered harm. However, Warby J interpreted section 1(1) as displacing this presumption: a claimant must now prove that the publication caused or is likely to cause serious harm.
Warby J found that the defamatory statements in four of the five articles met this threshold. His judgement also considered the rule in Dingle v Associated Newspapers Ltd, which provides that, where multiple publications repeat the same defamatory statement, the court need not take account of other publications when assessing harm caused by any single publication. Warby J applied this rule to the issue of serious harm and refused to discount the harm caused by the articles in light of other similar publications.
The newspapers appealed to the Court of Appeal, challenging Warby J’s construction of section 1(1) and his application of the Dingle rule. Among their arguments was the contention that a court should not infer serious harm without direct evidence, even in the case of publications in mainstream media. They also argued that the cause of action should accrue only when serious harm manifests, potentially some time after publication, citing Cooke v MGN [2015] 1 WLR 895.
The Court of Appeal upheld Warby J’s finding of serious harm in favour of Mr. Lachaux but departed from Warby J’s legal interpretation in some respects. It held that the phrase “is likely to cause” in section 1(1) should be read as denoting a tendency to cause harm, thus giving rise to an irrebuttable presumption of reputational damage once the defamatory meaning is established. This effectively restored the common law position of presumed damage, albeit with the added requirement that the damage must be “serious.”
The Court of Appeal also rejected the argument that the cause of action accrues at a later date than publication. It held that the cause of action arises on publication and dismissed the idea of an “ambient” cause of action that drifts in and out of actionability.
Supreme Court Judgement in Lachaux v Independent Print Ltd
The Supreme Court granted permission to appeal and handed down a unanimous judgement dismissing the appeals by the newspaper publishers. The court upheld Warby J’s approach and overturned the Court of Appeal’s interpretation that damage is presumed once defamatory meaning is found.
Lord Sumption, delivering the lead judgement, summarised the legal position at paragraphs 13 to 15, emphasising several key principles:
- The common law position did not include a presumption of “seriousness” of harm; the Defamation Act 2013 explicitly introduced this new threshold.
- A statement is not defamatory unless it has caused or is likely to cause serious harm to the claimant’s reputation.
- The serious harm considered refers to the consequences of the publication, not merely the publication itself.
- The phrase “has caused” relates to harm that has actually occurred, whereas “is likely to cause” denotes probable future harm, not a mere tendency.
- Section 1(2) must be read in conjunction with 1(1); for bodies trading for profit, serious harm is equated with serious financial loss caused or likely to be caused.
The Supreme Court endorsed Warby J’s analysis, declaring it “coherent and correct.” It affirmed that the Act raised the evidential bar for claimants in defamation cases by requiring proof of serious harm and rejected the notion that such harm could be presumed or inferred merely from the nature of the words.
The court held that it was open to Warby J to draw inferences of serious harm based on the meaning of the words, the circumstances of publication, and the claimant’s personal situation. However, such inferences must be supported by evidence rather than relying on presumptions.
Regarding the “repetition rule” and the Dingle principle, the Supreme Court confirmed their continued application. It found no indication that the Defamation Act 2013 implicitly abolished or limited these common law rules. The application of the Dingle rule was not only permissible but also rational in determining serious harm.
Finally, the Supreme Court rejected the contention that harm could only be assessed in relation to those who already knew the claimant. It found no principled reason to exclude the effect of defamatory statements on those previously unaware of the claimant; reputation may be harmed upon publication regardless
Conclusion
The Supreme Court’s judgement in Lachaux v Independent Print Ltd [2019] UKSC 27 definitively elucidates the serious harm requirement under the Defamation Act 2013. It establishes that:
- Serious harm must be shown or proved likely, not presumed.
- The cause of action accrues on publication.
- Courts may infer harm but cannot do so without evidence.
- Common law rules on repetition and related publications remain effective in serious harm assessments.
This case is essential reading for practitioners, academics, and parties engaged in defamation proceedings in the UK, offering clarity and certainty on the crucial question of harm in defamation claims.
