The Supreme Court yesterday handed down its long awaited judgment in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27. As predicted by various commentators  giving a preview of the case (including in my previous post), the five Supreme Court judges (Lord Kerr, Lord Wilson, Lord Sumption, Lord Hodge and Lord Briggs) clarified the applicable law, but unanimously dismissed the appeals against the Court of Appeal decision ([2017] EWCA Civ 1334) on the facts.

The proper construction of section 1(1)

The Grounds of Appeal identified 5 issues, the most important of which was the proper construction of section 1(1) of the Defamation Act 2013, 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.”

This provision was to be interpreted in the light of the common law background, which the Supreme Court summarised as follows [6-7]:

“[A] working definition of what makes a statement defamatory, derived from the speech of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, 1240, is that “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.” Like other formulations in the authorities, this turns on the supposed impact of the statement on those to whom it is communicated. But that impact falls to be ascertained in accordance with a number of more or less artificial rules. First, the meaning is not that which other people may actually have attached to it, but that which is derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it. Secondly, in an action for defamation actionable per se, damage to the claimant’s reputation is presumed rather than proved. It depends on the inherently injurious character (or “tendency”, in the time-honoured phrase) of a statement bearing that meaning. Thirdly, the presumption is one of law, and irrebuttable.

In two important cases decided in the decade before the Defamation Act 2013, the courts added a further requirement, namely that the damage to reputation in a case actionable per se must pass a minimum threshold of seriousness.”

The case on behalf of the Respondent was that the common law presumption of damage remained unaffected by section 1(1) but that “the inherent tendency of the words must be to cause not just some damage to reputation but serious harm to it” [11]. This is the approach which was endorsed in the Court of Appeal’s decision.

The Appellants’ case was that section 1(1) had effectively abolished the common law presumption of damage by introducing a new hurdle to be satisfied before the statement could be regarded as defamatory, and that the words complained of must not only be inherently injurious but “must also be shown to produce serious harm in fact”, which may require extraneous evidence to be submitted. This is the view that had been taken by Warby J in his judgment on the trial of preliminary issues ([2015] EWHC 2242 (QB)).

The Supreme Court’s decision backed Warby J’s interpretation and gave four main reasons for doing so:

  • It took into account Parliament’s objective as stated in the preamble to the Defamation Act 2013, which was to “amend the law of defamation” [13]. In the light of this, it considered that Parliament’s choice to use the wording of “serious harm” could only have represented an intentional departure from the previous decisions in Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 74 and Thornton v Telegraph Media Group [2010] EWHC (QB) 1414.
  • It considered that the words “has caused” naturally and necessarily referred to some actual historic harm and that “likely to cause” must therefore refer to probable future harm. It rejected the view that serious harm could be established simply on the basis of the words’ “inherent tendency” to cause harm [14].
  • It explained that section 1(1) must be read alongside (and consistently with) section 1(2), which requires an investigation of the actual impact of the statement [15].
  • It concluded that Warby J’s interpretation was the only one which could bring about the substantial change to the law of defamation which was clearly intended by the significant amendment represented by section 1(1) [16].

Foreseeable increase in costs

The clear foreseeable consequence of the Supreme Court’s decision will be to generate additional costs to litigants and an increase in what are in all likelihood going to be expensively contested hearings (whether preliminary or not) regarding the extent to which it may be possible for the claimant to demonstrate that a particular publication has caused or is likely to cause serious harm to his reputation.

This is unfortunate because, as had been flagged by the then Mark Warby QC in written evidence submitted to the Joint Committee on the Draft Defamation Bill, under the law and practice as it stood before the 2013 Act, and due to the safeguards established in the cases of Jameel and Thornton, there already was no real risk of a trivial claim succeeding at (or indeed getting close to) a trial.

5RB’s case report suggests otherwise, stating that:

“The Supreme Court decision does not apparently disturb or detract from the guidance by the Court of Appeal that disputes of fact arising from the serious harm test which require evidence should be resolved at trial of liability and not by preliminary issues trials, if not suitable for a summary judgment application.”

It is correct that the Supreme Court has not given any guidance on how the serious harm issue should be dealt with. However, because it disagreed with the Court of Appeal and instead endorsed Warby J’s approach, my view is that it is to be expected that it is the guidance given by Warby J which will prevail. This was as follows:

“[W]here a defendant maintains that the actual or likely harm to reputation is too slight to justify a claim, the starting point should be consideration of s 1; and if that issue is raised it will usually be preferable for it to be tried as a preliminary issue, rather than by way of a striking out or summary judgment application, which may fail on the grounds that the conclusion is not obvious and the prospect of success not fanciful. I emphasise ‘if’ and ‘usually’ because it is not every case in which serious harm will be a real issue; and where it is, a preliminary trial will not invariably be appropriate.” [66]

Evidential issues

From a claimant lawyer’s perspective, the crucial point will be an evidential one: how to prove actual harm. In that regard, the Supreme Court made it clear that inferences can be drawn in the light of the circumstances of the case [21]. A circulation certificate, the number of unique hits that an article had online, the republication of the allegations on other platforms such as social media websites, and comments made online or on social media about the allegations would all be relevant. There remains to be seen whether this evidential hurdle may revive the debate over the rule in Scott v Sampson (1882) 8 QBD 491 as to whether a defendant should be permitted to put in evidence (inadmissible as the law now stands) of other defamatory allegations, whether published or not, in an effort to show that the publication complained of would not be likely to cause any substantial additional harm.

In addressing the remainder of the grounds of appeal ([21-25]), the judgment made some findings which are helpful to claimants. It found that the repetition rule is irrelevant to the threshold of seriousness and that “nothing in the 2013 Act can be taken as implicitly abolishing it or limiting its application” [23]. To the extent that the threshold of seriousness is met, a republication of an allegation therefore remains actionable. The judgment also stated that the rule in Associated Newspapers Ltd v Dingle [1964] AC 371 (according to which where several persons 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) remains applicable to a section 1(1) determination, as it would not make sense for it to be applicable to the measure or mitigation of general damage, but not to the threshold of seriousness [24].

Conclusion

The Appellants’ decision to appeal to the Court of Appeal, and the subsequent Court of Appeal judgment, were seen as a spectacular own goal. The further appeal to the Supreme Court has now restored the position as it was before Warby J, and therefore even if the Appellants lost there is no doubt that the position is far less bad for defendants than it would have been had the Appellants not appealed the Court of Appeal’s decision.

The Supreme Court’s decision is a welcome clarification of an area of the law in relation to which the case law to date was contradictory. In particular, the Supreme Court has clarified that the date of publication is the date on which the claimant’s reputation is harmed (although of course evidence of subsequent actual harm can be admitted at trial).

The degree to which this decision will affect our day to day practice will largely depend whether Masters and/or High Court Judges order serious harm to be tried as a preliminary issue, and on the circumstances of each case. Inferences of fact will be much easier to draw in cases involving a well-known and well-established publisher, such as a national newspaper, and a high profile claimant who is in the public eye, than in those involving a local publisher and a claim known only in his immediate local community. What is very clear, however, is that the new threshold of seriousness will lead to an increase in argument, correspondence and costs.

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