On Tuesday and Wednesday 13 and 14 November 2018, the Supreme Court (Lords Kerr, Wilson, Sumption, Hodge and Briggs) will hear the appeal in Lachaux (Respondent) v Independent Print Limited and another (Appellants) UKSC 2017/0175, against the Court of Appeal decision of Davis LJ, with whom MacFarlane and Sharp LJJ concurred ( EWCA Civ 1334).
This decision had been handed down on the basis of the defendants’ appeal against the decision of Warby J on a trial of preliminary issues ( EWHC 2242 (QB)).
The appeal will deal with various issues including, in particular, the proper construction of section 1(1) of the Defamation Act 2013 (“the Act”). This is the first time that the Supreme Court will consider the meaning and effect of the “serious harm” requirement.
The case concerned articles published in The Independent, ‘i’, the Evening Standard and the Huffington Post. Each of these articles provided an account of events taking place in the United Arab Emirates, including proceedings between the claimant and his ex-wife. In particular, the articles reported allegations that the claimant had kidnapped his and his ex-wife’s son, as well as allegations of domestic violence made by the claimant’s ex-wife.
The defendants issued application notices seeking an order that there be a trial of preliminary issues, including on the meaning of the publications complained of and whether, further to section 1(1) of the Act, those publications had caused or were likely to cause serious harm to the reputation of the claimant.
Judgment was given on 30 July 2015. Warby J found that in view of the gravity of the statements, a clear inference could be drawn that serious harm had been caused to the claimant’s reputation by each of the articles and the majority of the statements. The defendants’ appeals were heard on 29 and 30 November 2016. In a judgment handed down on 12 September 2017, the appellate judges dismissed the appeals, considering that whilst Warby J had reached the correct conclusion on the issue of serious harm, his interpretation of section 1(1) involved a substantial change to the law of defamation which had not been foreseen or intended by Parliament when the Act was drafted and enacted.
The Court of Appeal refused permission to appeal. On 30 October 2017, Independent Print and the Evening Standard applied to the Supreme Court for permission, which was granted on the condition that they provide security for costs in the sum of £85,000 and that they would not be allowed to seek the costs of the appeal.
The issues to be considered by the Supreme Court
The Grounds of Appeal identify 5 issues:
- The proper construction of section 1(1) of the Act, according to which “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”
- The circumstances in which serious harm can be inferred in the absence of any evidence of harm.
- Whether the repetition rule applies to a section 1 determination. This rule was summarised in the following terms by May LJ in Shah v Standard Chartered Bank  QB 241: “The repetition rule in its simplest application is that, if you publish a statement that Y said that X is guilty, it is not a defence to an action for defamation to establish the literal truth of the publication, ie that it is indeed true that Y said that X is guilty. You are repeating and endorsing Y’s publication and your justification must address the substance of what Y said, not the fact that he said it. The obvious underlying reason for this is that statements of this kind in substance restate the original publication.”
- Whether the rule in Associated Newspapers Ltd v Dingle  AC 371, which says that where many have published words to the same or similar effect it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others and inviting an inference that those other publications have injured the claimant’s reputation, applies to a section 1 determination.
- Whether readers who get to know the claimant after the section 1 determination are relevant to “has caused” or “is likely to cause” in section 1(1). This point arises from the Appellant’s objection to the fact that Warby J took into account in determining “has caused” the fact that there would be people who read the articles and did not know the Respondent but may get to know him at some unspecified point in the future.
The proper construction of section 1(1) will be the main focus of this appeal. The findings which the court will make in relation to points 2. and 5. above will flow from the findings it makes about the construction of that section, and the issues at points 3. and 4. appear to be of secondary importance to those fundamental issues of principle (for the reasons explained below).
The proper construction of section 1(1)
The background to this issue, and to the enactment of section 1(1), is the judgment in Thornton v Telegraph Media Group  EWHC (QB) 1414, in which Tugendhat J considered that there was a “threshold of seriousness” recognised under common law, and in which he favoured a definition that a statement was defamatory if it “… substantially affects in an adverse manner the attitude of other people towards [the claimant] or has a tendency so to do.” It is this judgment which section 1(1) builds on.
It is accepted by both the Appellants and the Respondent that, per the Explanatory Notes to the Act, the purpose of section 1(1) was to “raise the bar” so that only cases involving serious harm to the claimant’s reputation could be brought. The Explanatory Notes refer to Thornton (cited above) and Jameel (Yousef) v Dow Jones & Co Inc  EWCA Civ 74. As a result of these decisions, it is clear that the bar has been raised to a level where trivial cases are not permitted to proceed. The question which the Supreme Court is due to consider is the extent to which the bar has been raised, and the essence of the appeal relates to the difference between substantiality and seriousness. Insofar as there is one, it could be argued that it is wafer thin.
Some (including the Respondent) consider that the “serious harm” threshold corresponds to a “Thornton plus” test: their view, in the words of Davis LJ, is that “Parliament has in effect given statutory status to the decision in Thornton whilst at the same time raising the threshold from one of substantiality to one of seriousness”.
The Appellants instead consider that whether a statement “has caused or would be likely to cause” harm should require detailed examination of the surrounding evidence (including the claimant’s existing reputation, any previous misconduct, and the extent of publication of the same or similar allegations). Their view is best summarised in Warby J’s words: “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.”
If Warby J’s approach is adopted, it will effectively create what has been labelled a ‘second hurdle’, which would fundamentally alter the test for actionability and, ultimately, the nature of the tort. It would also mean that section 1(1) of the Act has effectively merged the approaches taken in Thornton and Jameel: if evidence of serious harm as described by Warby J is (or may be) required at the preliminary stage, then there will no longer be a need for the existence of applications to strike out claims for being an abuse of process under the Jameel jurisdiction.
Issues concerning the proper construction of section 1(1)
The Supreme Court will also clarify other issues arising from the wording of section 1(1) and in relation to which judges have taken different views in previous trials of preliminary issues. These include, in particular:
- An evidential issue: namely, the ability to draw inferences in the absence of any evidence of harm (point 2. above). Warby J’s view was that “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”. The Court of Appeal criticised this approach as an “imprecise conflation between what is a presumption and what is an inference”. Instead, Davis LJ held that
“in cases of libel (and some cases of slander) there is a presumption of damage: which presumption has in my view, as will be gathered, not of itself been displaced by the 2013 Act. But there is no presumption, at law, of serious damage in a libel case. Accordingly that, under s.1(1), has to be proved. The point nevertheless remains that serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning.”
Another view, put forward by the Respondent in the appeal, is that the reputational harm which arises when words are found to be defamatory (which is presumed) and the damage flowing therefrom (which requires proof, but can be inferred) are separate issues.
- An issue of interpretation and timing, which requires a clarification of the words “has caused or is likely to cause” in section 1(1) (point 5. above). In previous decisions, those words have been interpreted as distinguishing between the reputational harm already caused by the publication and that which may happen in the future. The question then turned to the determination of the date on which the harm to reputation was caused, and on which it should be assessed: at the date of publication, at the date on which the Claim Form was issued, or at the date when the issue was determined (i.e. at trial).
Counsel for the Respondents instead argues that this wording refers to different types of proceedings, distinguishing between a situation where the words complained of have already been published from that in which proceedings are issued pre-publication.
Other issues to be considered by the Supreme Court
Lastly, the Supreme Court will consider the applicability of the repetition rule and of the rule in Dingle to section 1(1) determinations.
It is difficult to imagine that the Supreme Court will displace the repetition rule, which is deeply engrained in the English law of defamation and indeed has been characterised by Hirst LJ in Shah as “a principle ‘deeply embedded’ in the law of defamation”. Likewise, it is unlikely that the Supreme Court will displace the rule in Dingle, which is a practical response to issues of causation in defamation cases, since absent any such rule causation would be practically impossible to prove in this type of proceedings.
This is particularly so where there appear to be no compelling reasons supporting the argument that these rules should not be applied to section 1(1) determinations.
Commentators have observed, for instance in a previous Inforrm article, that the fact that the Supreme Court granted permission to appeal should not be cause for optimism for defendant lawyers or newspapers, noting that the effect of the “serious harm” threshold was that “rather than lose cheaply, defendants ha[d] been mostly losing expensively”.
Indeed the fact that permission to appeal was granted should not generate any undue optimism that the Court of Appeal’s findings will be reversed. For appeals to the Supreme Court, there is no equivalent rule to the rules contained in CPR 52.6(1)(i) and CPR 52.7(2)(i), applicable to first and second appeals respectively, which require that the appeal have “a real prospect of success”. Instead, it would appear that the Supreme Court will hear appeals where, absent any such prospect, there is “some other compelling reason for the appeal to be heard” or the appeal “raise(s) an important point of principle or practice” (thus reflecting sub-sections (ii) of these CPR rules).
This was the case in the seminal case of Reynolds v Times Newspapers  2 AC 127, in which the House of Lords (much in the same way as the Supreme Court might do in this case) ultimately dismissed an appeal for which it had granted permission to appeal on the condition that the appellants would not be allowed to seek their costs of the appeal. In Reynolds, the Lords criticised the reasoning of the Court of Appeal, and clarified the applicable law, but did not overturn the substance of the judgment. Similarly, in its more recent judgment in Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67, the Supreme Court granted permission to appeal and used the case as an opportunity to replace the much maligned test of dishonesty set out by the Court of Appeal in R v Ghosh  QB 1053, but dismissed the appeal.
In view of this, and of the complexity of the issues raised by section 1(1) (of which this article gives a succinct and limited overview), it is possible that the Supreme Court granted permission to appeal for the purposes of clarifying the law. This permission should therefore not be read as a clear indication that the appellate Lachaux judgment will be overturned.
This is particularly so in circumstances where, to date, the case law interpreting section 1(1) has been contradictory and has generated (as foreseen in various submissions made to the Parliamentary Joint Committee that carried out pre-legislative scrutiny of the draft Bill) expensive and lengthy interlocutory hearings, which go directly against the Act’s primary purpose, which was “to simplify and clarify the law and procedures to help reduce the length of proceedings and the substantial costs that can arise.”
It is difficult to see that the Supreme Court’s judgment will go beyond refining the Court of Appeal’s decision on the proper construction of section 1(1) and the related issues raised in the Grounds of Appeal. It is equally difficult to find a logical and compelling reason for which the repetition rule and the rule in Dingle should be displaced for the purposes of section 1(1) determinations. Overall, therefore, the appeal is likely to bring further clarity to the meaning and effect of the “serious harm” requirement, but it is not expected to bring about any radical changes.
Mathilde Groppo is a member of the Paris Bar and of the Franco-British Lawyers Society and is practicing in England and Wales at Carter Ruck as a Registered European Lawyer