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What will the court take into consideration when determining the issue of serious harm under the Defamation Act 2013 (DA 2013)? Jeffrey Smele, associate at Simons Muirhead & Burton, examines the decision in Lachaux v Independent Print, Evening Standard Ltd, AOL (UK) and suggests that practitioners are likely to see an increase in applications for trials of serious harm as a preliminary issue.
What is the background to this case?
The claimant is an aerospace engineer and French national, currently living and teaching in the UAE. He brought libel claims against three news publishers regarding five articles published in this jurisdiction (some were also published online in Dubai) between 20 January and 10 February 2014.
The defendants were Independent Print Limited (for two articles, one published in the Independent and one in its sister paper, ‘i’), Evening Standard Limited (for an article appearing in the London Evening Standard) and AOL Limited (for two Huffington Post articles).
Each article complained of contained an account of events in the UAE, including proceedings against the claimant’s ex-wife. The articles reported allegations about the claimant said to have been made by his ex-wife, including of domestic abuse.
Orders had been made for trial of various preliminary issues, and Warby J heard these over two days on 20 and 21 July 2015. As recorded in Warby J’s judgment, the main issue for him to decide was regarding the ‘serious harm’ requirement, which is a relatively new (20 months old) area of defamation law laid down by DA 2013, s 1(1). This is the most important decision on serious harm to date, and it has attracted a great deal of attention and comment. It is especially interesting for practitioners as it deals with the early stage procedural management of defamation cases.
What were the issues in the preliminary hearing?
Four preliminary issues were tried:
Whether (in two of the claims) the words complained of referred to, or were understood to have referred to, the claimant.
What was the natural and ordinary meaning of the words complained of (in three of the claims)?
Whether the publication of the words complained of (in all five claims) satisfied the serious harm test under DA 2013—ie that a statement is not defamatory unless it has caused or is likely to cause serious harm to the claimant’s reputation.
Whether, pursuant to the principles established in Jameel v Dow Jones & Co Inc  EWCA Civ 75,  All ER (D) 43 (Feb) the pursuit of the claim constituted an abuse of the court’s process (in two claims).
The legal principles that apply to reference, meaning and abuse issues are well established, and do not need elaboration for the purposes of this article. Two main issues of law and fact arose for Warby J to consider in the hearing, and these both concerned the serious harm requirement:
Serious harm—issue one
On the proper construction of DA 2013, s 1(1), what must a claimant prove in order to satisfy the serious harm requirement? Is it:
Serious harm—issue two
Whether, in reaching a conclusion on the issue of whether a given publication caused or is likely to cause serious harm, the court can and should take any, and if so what, account of other publications to the same or similar effect as the material complained of.
What did the court decide?
Warby J held (following the numbering of the issues above):
Warby J reached the following conclusions regarding the serious harm requirement:
Warby J rejected the claimant’s assertion that it was enough to show that the offending words had a tendency to cause serious harm to his reputation. He held that:
‘The intention [of Parliament when enacting DA 2013, s 1(1)] was that claimants should have to go beyond showing a tendency to harm reputation. It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of.’ (para ) (emphasis added)
After considering the words used and the common law context, Warby J concluded that:
‘The use in s 1(1) of the new language, “has caused or is likely to cause” is consistent with an intention to simplify the law by drawing together the strands, and subsuming all or most of the Jameel jurisdiction into a new and stiffer statutory test requiring consideration of actual harm.’ (para )
He added that, serious harm may be proven by inference, ‘based on the gravity of the imputation and the extent and nature of its readership or audience’ (para ). He was prepared to draw inferences of serious harm in this case.
He went on to state that when determining the issue of serious harm, the intention of Parliament was that all relevant circumstances (including those arising after publication) should be considered by the court, not just the words complained of and their meanings (para ).
As to the subsidiary question of the point in time from which the court is to judge whether a statement is ‘likely to’ cause serious harm—should it be when the claim form is issued or when the issue is determined?—Warby J did not need to determine the issue, but said that he preferred the latter (para ) (this was contrary to Bean J’s approach in the previous case of Cooke v MGN). He noted that on either approach, a consequence of DA 2013, s 1(1) is that the status of a publication may change from non-defamatory to defamatory or vice versa, and that the old common law rule that a cause of action for libel arises upon publication is no longer good law:
‘…a cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable.’ (para )
The previous rule (as per Associated Newspapers v Dingle  AC 371,  2 All ER 737) remains binding following DA 2013—other publications cannot be admitted into evidence for the purpose of limiting/reducing damage regarding the seriousness of injury to reputation.
What does this ruling tell us about the application of DA 2013, s 1(1)?
Warby J’s judgment helpfully addresses a number of procedural matters:
Points of law
A claimant must show on the balance of probabilities that serious harm has been caused by, or will likely result in future from, the statement(s) complained of.
The court should consider not only the defamatory meaning of the words, but should take into account all relevant circumstances, including evidence and events which occur after the initial publication of such statements.
Accordingly, under DA 2013, s 1(1) there is a requirement to show proof of actual or likely serious harm to reputation.
As Warby J put it, ‘libel is no longer actionable without proof of damage’ (para ).
How should defamation lawyers advise clients on serious harm in light of this ruling?
Practitioners are likely to see an increase in applications for trials of serious harm as a preliminary issue. Lawyers representing defendants will probably recommend to their clients that serious harm is an issue that they should raise at the outset in a case where it is credibly arguable—ie not in ones where serious harm may clearly be drawn by inference. For example, a front page allegation in a national newspaper, or in a mainstream news broadcast, of serious criminal misconduct. The costs associated with this may well be money well spent if the application disposes of a claim at an early stage, before substantial costs need to be incurred in drafting a defence. Given the clear guidance from Warby J that it would be ‘unwise’ and that defendants may be at a costs risk if they do so (para ), advisors should tell their clients to refrain from pleading a defence until they see if they can succeed on the issue of harm.
Some have noted that there has been a decrease in more speculative claims being pursued, as, post DA 2013, lawyers representing claimants have been obliged to advise their clients that serious harm is a hurdle which must be surmounted before a claim can effectively get off the ground. This decision clarifies that the serious harm requirement is a factual one, not just directed to the quality of the meaning conveyed by the words complained of. However, lawyers may also note that the hurdle has arguably been lowered to some extent (at least from the position that some saw it to be in post Cooke v MGN), given Warby J’s rulings as to the drawing of serious harm by inference and his factual findings in this case. After all, the claimant was resident abroad, was an infrequent visitor to the UK, and was not known to a large number of people, but the judge found that there had been serious harm to his reputation.
Interviewed by Susan Ghaiwal.
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