Case Law: Lachaux v Independent Print, “Serious Harm” under the Defamation Act 2013 and the drawing of inferences – Hugh Tomlinson QC

In the case of Lachaux v Independent Print ([2015] EWHC 2242 (QB)) Warby J gave judgement on preliminary issues, including an issue relating to “serious harm”, in a number of libel actions brought against three newspapers and the Huffington Post.  He agreed with the analysis of “serious harm” in the earlier cases – damage to reputation must be proved and cannot be presumed.  He nevertheless went on to find that there was, in fact, serious harm in relation to four of the five articles complained of.

Background

The claimant is an aerospace engineer and is a French National working in the United Arab Emirates.  He brought libel actions against three publishers in respect of five articles which were published between 20 January and 10 February 2014.

The defendants were Independent Print Limited – in respect of articles in The Independent, and the ‘i’, Evening Standard Limited, in respect of an article in London Evening Standard, and AOL Limited in respect of two articles in the Huffington Post.

Each of the articles complained of contained an account of events in the UAE, including proceedings against the claimant’s ex-wife, Afsana Lachaux (‘Afsana’), for ‘kidnapping’ the couple’s son. The articles reported allegations against the claimant said to have been made by Afsana, who was described in the first Huffington Post article as a ‘British victim of domestic abuse’. Each article bears similar defamatory meanings about him [4].

The claims related to the publication in England and Wales and online publication in Dubai.

Orders had been made (see [2015] EWHC 915 (QB) and [2015] EWHC 1847 (QB)) for the trial of four preliminary issues [8]

• The two actions there were issues as to whether, or the extent to which, the words complained of referred or were understood to refer to the claimant.
• In three of the claims there were some issues about the natural and ordinary meaning of the words complained of.
• Serious harm. In relation to all five claims, there was an issue as to whether the publication of the words complained of satisfies what I shall ‘the serious harm requirement’ laid down by s 1(1) Defamation Act 2013
• Abuse of process. In the AOL claims the defendants sought to have the actions struck out on Jameel

These issues were tried by Warby J on 20 and 21 July 2015. Witness statements from the claimant and AOL were before the court. The claimant was cross-examined.

Judgment

Relevant Legal Principles

The Judge considered a number of legal arguments concerning the applicable principles.  I will refer to three of these

First, there were the arguments relating to the question of “reference”.  Reference to the claimant is an essential element of the cause of action.  The test is an objective one: would the words be understood by reasonable people to refer to the claimant.

If the words would be so understood by such people it is not necessary for the claimant to prove that there were in fact such people, who read the offending words; so an individual defamed by name in Cornwall has a cause of action even if he was unknown in that county at the time of publication [15](2).

The Judge rejected the submission that a claimant has to prove that at least one person understood the words complained of to refer to him.

Secondly, and most importantly, the judge considered the vexed and difficult question as to the meaning of the “serious harm” requirement in section 1(1) of the Defamation Act 2013.  This section 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.”

The defendants relied on the decision in Cooke v MGN ([2015] 1 WLR 595 [30] to [31]) in support of the contention that ‘has caused’ requires a claimant to establish as a fact on the balance of probabilities that serious harm has been caused to his reputation, and ‘is likely to’ requires proof that serious harm probably will be caused in the future.

In contrast, the claimant submitted that section 1(1) is directed solely to the quality of the meaning conveyed by the words complained of.  In other words it is designed to exclude trivial claims by adjusting the definition of “defamatory” to upgrade the harmful effect required to surmount the threshold of seriousness from ‘substantial’ … to “serious”‘.

The Judge rejected the claimant’s arguments, reaching the clear conclusion that in enacting section 1(1),

The intention 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. [45]

After considering the words used and the common law context he 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”. [50]

The Judge rejected the claimant’s submission that this construction involve revolutionising defamation law by implication.  He suggested that

“Much that is said on the claimant’s behalf on this aspect of the matter seems to me to be based on a false premise, namely that on this approach it will in all cases be necessary for a claimant to adduce evidence to prove that the publication complained of is defamatory of him or her. … however, the serious harm requirement is capable of being satisfied by an inferential case, based on the gravity of the imputation and the extent and nature of its readership or audience” [57]

The Judge accepted, however, that his construction of section 1(1), mean that libel is no longer actionable without proof of damage but regarded this as a something that had been substantially eroded by Jameel in any event [60].

Overall, his conclusion on the “serious harm” issue was

“by s 1(1) Parliament intended to and did provide that a statement is not defamatory of a person unless it has caused or will probably cause serious harm to that person’s reputation, these being matters that must be proved by the claimant on the balance of probabilities. The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication. Serious harm may be proved by inference, but the evidence may or may not justify such an inference” [65].

Although it was not necessary to determine the question of the point in time from which the Court is to judge whether a statement “is likely to” cause serious harm, the Judge favoured the time at which the issue was determined (in contrast to the approach in Cooke where the judge favoured the time of issue) [67].

The third legal issue concerned the question as to whether, in considering the issue of serious harm, a defendant is entitled to rely on other publications to the same or similar effect.  The defendants sought to rely on other publications which were said to have damaged the claimant’s reputation in support of the argument that their publications had not caused serious harm.

The claimant resisted this argument based on the decision in Dingle v Associated Newspapers ([1964] QC 371) in which it was held that, at common law, other publications to the same effect as the words complained of or relating to the same incident, are inadmissible in relation to the assessment of general damages for injury to reputation.

The Judge accepted the claimant’s argument.  In the new legal context adherence to the limits set by Dingle was perhaps more likely to hold the scales evenly between the parties than it did in the past [86].

There would be some room for complaint by claimants if defendants were now permitted to put in evidence other defamatory publications and, without more, invite an inference that these had caused serious harm to reputation. The position of a defendant would approximate to that of a claimant under the previous law. [86]

Decisions on the Facts

After considering the legal principles the judge dealt with four preliminary issues.

First, he decided that all five articles referred to the claimant ([94], [96] and [100]

Second, the meaning of the ‘i’ article was substantially same as that of the Independent article which had already been determined in an earlier judgment ([2015] EWHC 620 (QB) [40]).  That judgment also determined the meaning of the Standard Article.  The AOL articles substantially bore the claimant’s pleaded meanings.  These meanings were defamatory at common law.

Third, the Judge decided that (with the exception of the second Huffington Post article) all the articles had caused the claimant serious harm.

The Judge made findings about the claimants’ visits to the UK (5 occasions over 5 years)[132]i) and the people he knew or was known by in the UK [132] ii) .  The number was not quantified but appears to be in the low hundreds.

There was no evidence as to how many of these people read one or more of the articles.  However, the Judge held that he would not be justified in accepting the defendant’s submission that, in the absence of tangible evidence, he should conclude that those who read the offending words were unaffected by them [138].  His conclusion was that

“there were, on the balance of probabilities, tens of people and possibly more than 100 who know or know of the claimant and read one or more of the articles and identified him, and who thought the worse of him as a result” [138]

In addition, there were people to whom the sting is passed via the “grapevine”, including by social media [139].  In addition, there was the impact of publication on those who did not already know the claimant [140].

The defamatory meanings were serious, the articles were meant to be taken seriously and the publishers were reputable.  In all the circumstances, all the articles but one had caused serious harm to the claimants’ reputation [148], [150] and [153].  The newspaper articles had substantial circulations and readerships, both in print and online.

The first Huffington Post article had 3,250 unique visitors in the UK and 1,360 in the UAE.  The Judge concluded that the publication was likely to have reached at least a dozen people who knew the claimant and the probability was that his reputation had been seriously harmed in the eyes of others [145].

The second Huffington Post article did not, however, cause serious harm.  It was a long article and the claimant was only mentioned in three paragraphs towards the end.  The article had only 306 unique visitors in 13 months.  As there was no cause of action in relation to this article it was unnecessary to consider the Jameel abuse issue.

Procedural Issues

The Judge dealt with a number of procedural issues relating to the trial of preliminary issues on serious harm and Jameel abuse.  These will be dealt with in a separate post.

Comment

This judgment is described in the 5RB case comment as “seminal”.  It is certainly the most important judgment on section 1 of the Defamation Act 2013 since it came into force on 1 January 2014.

There have been two views as to the meaning and effect of section 1.  The first is that the section now requires the proof of damage to reputation in libel cases.  This was the conclusion of Bean J in Cooke (see our Case Comment).  The second is that the section has not changed the common law presumption of damage but has simply raised the threshold from “substantial harm” to “serious harm”.  This position was argued in two powerful (and widely read) articles by Adrienne Page QC (“Does section 1 replace the test of the hypothetical reasonable reader by that of the twitter troll?” Part 1 and Part 2)

Ms Page QC was counsel for the claimant in Lachaux and unsuccessfully sought to persuade Warby J that her analysis was correct.  Unless and until the Court of Appeal is persuaded to take a different view the position is now clear: section 1(1) requires proof of actual or likely serious harm to reputation.  As Warby J put it “libel is no longer actionable without proof of damage” [60].  Perhaps, in part, because of his views on inference, he did not regard this as being as radical a development as some have suggested.

However, there are obviously great practical difficulties in producing positive evidence of serious harm.  As Warby J put it in Ames v Spamhaus Project ([2015] 1 WLR 3409 [55]) “as practitioners in this field are well aware, it is generally impractical for a claimant to seek out witnesses to say that they read the words complained of and thought the worse of the claimant”.  This means that the only way in which, in most cases, the “serious harm” threshold can be overcome is by relying on inference of harm.  Some doubts had been put on the limits of such inference by the approach in Cooke which, on one reading, appeared to confine such inference to the most serious libels ([43]).

The position has now been clarified by Warby J’s approach to facts in the Lachaux case.  The decisions reached as to the inference of serious harm show that it is not limited.  He was prepared to draw inferences of serious harm to reputation in relation to an individual who had only visited the UK on a few occasions and, at best, knew or was known to only a few hundred people.  He even drew the inference in relation to an online article with only a few thousand unique visitors (with no evidence that any of them actually knew the claimant).  Harm to the claimant’s reputation amongst those who did not know him was taken into account.

If this approach is applied to the traditional “media” libel action of national newspaper or broadcaster publication to millions of readers then in the case of any serious libel the Court is likely to draw an inference of serious harm – whether or not the claimant is well known to the general public.

The reasoning is careful and fact sensitive but is, overall, helpful to claimants where there has been substantial publication. Serious harm” is not the high hurdle which some have believed it to be since the Cooke decision.

Furthermore, Warby J dismissed the defendants’ argument that, in assessing serious harm, account had to be taken of other defamatory publications to the same effect.  The Defamation Act 2013 may have had a radical effect on the “presumption of damage” in libel actions but other aspect of the law remain unchanged.  Other defamatory publications will be disregarded, save that other damages awards can be taken into account under section 12 of the Defamation Act 1952.

Finally, important guidance was provided for dealing with procedural issues arising in “serious harm” cases.  These will be the subject of a separate post.

This is a rich and important judgment.  AOL apparently intends to seek permission to appeal in relation to the finding of “serious harm” against it so the Court of Appeal may shortly express its own view.  Nevertheless, in the light of this judgment practitioners can advise on serious harm with considerably more confidence than at any time since January 2014.