The long-awaited decision in Lachaux v Independent Print Ltd  EWCA Civ 1334 has brought some badly-needed clarity and certainty to the law of libel, and it seems fair to say that reports of the death of the libel writ have been greatly exaggerated.
The decision both interprets section 1(1) of the Defamation Act 2013 – “the serious harm” test – and determines the point at which a claim for libel crystallises.
The facts of the case are somewhat incidental to the issues considered in the appeal. The Claimant is suing both Independent Print Ltd and AOL (UK) Ltd over a number of news articles which appeared in the Independent, the I, the Evening Standard and The Huffington Post (operated by AOL). The articles contained allegations which had arisen from a dispute between the Claimant, Bruno Lachaux, and his ex-wife Afsana. The defamatory meanings of the words complained of in the various publications were summarised by the Court of Appeal as including
“that the claimant had become violent towards Afansa; had himself callously and without justification snatched their son back from his mother’s arms; had falsely accused Afsana of kidnapping their son, which, if upheld, could result in her, quite unfairly and wrongly, spending several years in a Dubai jail; was content to use Emirati law, which discriminates against women, to deprive Afsana of custody of and access to their son; was violent, abusive and controlling; and had obtained custody on a false basis and had initiated a prosecution in the UAE founded on a false allegation of abduction.”
Following a meaning hearing, the matter was set down for a preliminary trial on the issue of serious harm, in other words whether the section 1(1) threshold had been met.
First instance decision
The case of Lachaux v Independent Print Ltd  EWHC 2242 (QB) was heard before Warby J on 20 and 21 July 2015, with judgment handed down on 30 July 2015. The Defendants argued that not only must a Claimant prove on the balance of probabilities that he had suffered serious harm, but that where serious harm was suffered it could be expected to give rise to identifiable consequences, and that there were none in this case. In reaching his judgment Warby J set out his interpretation of section 1.
Significantly, he concluded that it must be proved that the publication has in fact caused serious harm to the Claimant’s reputation, or will probably do so in the future meaning that the presumption of damage in libel claims had effectively been abolished by parliament. However, he went on to find that serious harm was made out, referring to the repute and scale of the publications. He rejected the suggestion that an absence of tangible adverse reactions by publishees undermined his conclusions.
The Defendants appealed the decision. The Claimant sought for the decision to be upheld, but filed a Respondent’s Notice arguing that the decision could have been reached by Warby J by a much shorter route “on a proper interpretation and application of section 1(1) of the 2013 Act”.
Court of Appeal hearing
On 29 and 30 November 2016 the matter was heard before the Court of Appeal bench comprising of McFarlane, Davis, and Sharp LJJ. Sharp LJ is a media law specialist, but the lead judgment was in fact given by Davis LJ. At paragraph 82 of the judgment, Davis LJ summarised his conclusions on the law and the correct procedure to be followed in defamation claims, which, like any other High Court civil litigation, ought to be conducted in accordance with the overriding objective.
Prior to the enactment of the Defamation Act 2013, a Claimant was only required to show that a publication had a ‘tendency’ to cause substantial reputational harm. In the case of Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB) Tugendhat J had held that in order for a statement to be defamatory that it has to cross a ‘threshold of seriousness’ and that the appropriate test was whether a statement had a tendency to cause ‘substantial’ reputational harm.
Warby J’s view was that section 1(1) did more than just raise the threshold from a tendency to cause ‘substantial’ to ‘serious’ reputational harm. Claimants, according to Warby J, were required to go beyond showing a tendency to harm reputation. He believed it was now necessary to prove as a fact – on the balance of probabilities – that serious reputational harm has been caused by, or was likely to result in future from, the publication complained of.
The approach advocated by Warby J would often necessitate substantial evidence at an interlocutory stage. Indeed, the hearing before Warby J was a fully contested trial, which included cross-examination of the Claimant.
The Court of Appeal disagreed with Warby J’s approach. It held that the section 1(1) had merely raised the threshold from one of ‘substantiality’ to one of ‘seriousness’, with the latter conveying something ‘rather more weighty’ than the former. The Court of Appeal held that the words ‘is likely to cause’ should be taken as connoting a tendency to cause.
The bar for bringing a claim has thus been raised, but clearly not, for now, as high as some commentators and practitioners have suggested. The Supreme Court may, however, take a different view in the event that permission to appeal, which has been applied for, is granted.
Obtaining evidence of serious reputational harm is notoriously difficult. Publishees will often not know the Claimant, much less volunteer to share how a defamatory statement has adversely affected their opinion of him.
While judges have previously recognised that the serious harm test can be met on an inferential case, it had generally (and perhaps wrongly) been accepted that such occasions will be extremely rare. Bean J (as he was then) had provided the examples in Cooke v MGN Limited  EWHC 2831 (QB) of a national newspaper wrongly accusing someone of being a terrorist or a paedophile. While he did not state that the allegation always need be so serious, or the audience so large, such examples no doubt incentivised defendants in cases of a less extreme nature to threaten an early interlocutory hearing on serious harm as a means of testing the Claimant’s mettle.
The Court of Appeal held that it would be proper to draw an inference of serious reputational harm where the meaning of the words complained of is seriously defamatory. It made quite clear that such a situation would not be confined to the extreme cases highlighted by Bean J. Crucially, at paragraph 82(3), Davis J said:-
“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.”
Thus, the very nature of libel is such that it can often be impossible to meaningfully demonstrate how a reputation has been damaged – hence the presumption of damage. Where actual harm can be evidenced, that is a matter for damages.
When the cause of action arises
The Court of Appeal was firmly of the view that the cause of action arose at the point of publication. It was at this point that the section 1(1) threshold had to be met, i.e. to determine whether serious harm to reputation would be suffered or was likely. The Court of Appeal was heavily critical of the suggestion that a claim may dip in and out of actionability. Libel was no different to any other tort. Certainty was required and the common law had always held that the cause of action crystallised on publication. Had parliament intended to abolish the common law it could have expressly done this (as it did elsewhere in the Defamation Act).
The Court of Appeal was alive to the practice of well-resourced defendants seeking to batter into submission less well-resourced Claimants by use of the interlocutory process. An application to determine serious harm was fast becoming the Defendants’ weapon of choice, knowing that it would cause Claimants to incur substantial costs at an early stage of proceedings by obtaining and preparing the evidence which Warby J considered, in most cases, essential.
Quite sensibly, the Court of Appeal recognised that in cases where it is appropriate to infer serious harm it would not be right for a Claimant then to have to carry a further burden, at an interlocutory hearing, of adducing further evidence to prove serious harm. This was going against the grain of one of the stated purposes behind the reforms to the law of defamation: to reduce, rather than increase, costs.
The correct procedure in such circumstances is for a defendant to make a Part 24 summary judgment application or a Jameel application (the latter of which the Court of Appeal would likely be relatively rare). While the costs of libel proceedings will ordinarily prevent a Claimant from pursuing an unmeritorious claim, these applications can ensure, where appropriate, that any remaining unmeritorious claims do not reach trial. Arguably, such filtration devices had been working perfectly properly prior to the inception of the Defamation Act 2013. Section 1(1) has simply codified and raised the threshold.
The Court of Appeal essentially agreed with the arguments raised by the claimants in the Respondent’s Notice. It was satisfied section 1(1) was met and dismissed the appeal.
Following last year’s decision in PJS v News Group Newspapers Ltd  UKSC 26, which effectively killed the kiss and tell story, this is another example of the media fighting a point which has ended up doing their industry more harm than good.
As a general point, much criticism can surely be levelled at the draftsman. Defining something by what it is not is inherently illogical, particularly so when the definition is not self-contained within the section (or indeed Act).
Claimant lawyers will be grateful for the very clear guidance Davis LJ has given. Prior to this judgment, the law was muddled and different judges had given different opinions. The decision in Cook, in particular, stuck out, and presented claimants with the often impossible task of seeking to obtain evidence, save for in circumstances where a statement was “so obviously” likely to cause serious harm, to prove that people thought less of them as a result of a publication. As acknowledged by Warby J, such evidence has always been rare, for obvious reasons.
The decision over the point at which the tort crystallises is a victory for common sense. A Claimant should not have to guess or wait and risk running into limitation. Indeed, the interplay with limitation is a key factor in the Court’s reasoning.
The media and defendant lawyers will no doubt seek to argue that the judgment is regressive, offends free speech and undermines the purpose of the Defamation Act 2013 (one of the Defendants’ lawyers has even gone as far as to suggest that the Court of Appeal have prioritised their views over the view of parliament). Such self-serving remarks miss the point. As the Court of Appeal have made clear, section 1(1) does raise the threshold from one of substantiality to one of seriousness. Parliament clearly never intended to alter the law of defamation in such a way that the tort would become unworkable.
This post originally appeared on the Brett Wilson LLP Media Law Blog and is reproduced with permission and thanks