On 21 March 2018 the Supreme Court (Lords Kerr and Reed and Lady Black) granted the defendants permission to appeal in the case of Lachaux v Independent Print. The Supreme Court will now consider the meaning and effect of the “serious harm” requirement in section 1(1) of the Defamation Act 2013 for the first time.
The Supreme Court have imposed conditions on the appeal. The appellants are not entitled seek the costs of the appeal to the Supreme Court and must provide security for costs of the appeal in the sum of £85,000.
The appeal is against the decision ( EWCA Civ 1334) of the Court of Appeal (MacFarlane, Davis and Sharp LJJ) against the decision of Warby J on preliminary issues ( EWHC 2242 (QB)). The Court of Appeal decided that section 1(1) did not require positive proof of serious harm but had merely raised the threshold for libel from one of ‘substantiality’ to one of ‘seriousness’. The section had not removed the common law presumption of damage in libel cases. We had case comments here and here.
The Court of Appeal refused permission to appeal and Independent Print and the Evening Standard applied to the Supreme Court for permission to appeal on 30 October 2017. The Grounds of Appeal can be found here [pdf].
The publications complained of were in January and February 2014. Warby J gave judgment on preliminary issues on 30 July 2015 The appeal was heard by the Court of Appeal on 29 and 30 November 2016 and judgment was handed down in September 2017. It is unlikely that the Supreme Court appeal will be heard before the Spring of 2019. If the claimant repeats his success at first instance and in the Court of Appeal it seems unlikely that the trial will take place before 2020 – 6 years after publication.