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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
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