On 12 September 2017 the Court of Appeal handed down judgment in the important “serious harm” case of Lachaux v. Independent Print ( EWCA Civ 1334). The Court unanimously dismissed the appeals of the defendants against the decision of Warby J ( EWHC 2242 (QB)) that the claimant had established “serious harm” within the meaning of section 1 of the Defamation Act 2013.
In relation to section 1(1), Davis LJ (giving the judgment of the Court) concluded as follows ():
- 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 Thornton has thus itself been superseded by statute.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).
Overall, Davis LJ concluded
“I would accept the principal argument advanced by the claimant in the Respondent’s Notice. I would also and in any event reject all the grounds of appeal variously advanced by the defendants. The judge was, in terms of the outcome even if not in all respects in terms of his approach, correct to rule in favour of the claimant on the preliminary issue by reference to s.1(1) of the 2013 Act. The judge was also correct to reject as he did the Jameel abuse contention which had been made” .
The defendants have lodged an application to the Court of Appeal for permission to appeal to the Supreme Court. This application will be determined in due course. The appellants’ submissions on permission to appeal can be found here [pdf].
We will have a full case comment shortly.