Court of Appeal sets the bar for serious harm in libel claims
The Court of Appeal has for the first time considered the meaning and effect of the 'serious harm' test under s.1 of the Defamation Act 2013. The Court of Appeal's judgment in Lachaux v AOL & Ors [2017] EWCA Civ 1334 has held that the Claimant need only demonstrate that the alleged defamatory publication connote a "tendency" to cause serious harm to the Claimant's reputation, rather than it being more likely than not that the publication would cause serious harm.
Background
The Claimant, Mr Bruno Lachaux, brought defamation claims against The Huffington Post, The Independent and The Evening Standard on the basis of suggestions that he was guilty of domestic violence and abuse, child abduction and manipulating the Emerati legal system to unjustifiably deprive his former partner of access to their child.
Section 1 of the Defamation Act provides that "a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".
At first instance, Warby J held that section 1 required a claimant to prove on the balance of probabilities that a statement had caused or was likely to cause serious harm. In other words, the claimant was required to prove damage to his reputation in contrast to the pre-existing law before the Defamation Act where damage was presumed. Warby J held that while an inference of serious harm might be drawn, that may not be justified by the evidence. Where an issue of whether serious harm was raised it would usually be preferable to deal with that as a preliminary issue.
Warby J also noted (albeit obiter), that the time at which it should be determined when serious harm has occurred was at the time when serious harm is determined by the court rather than when the claim was issued.
Court of Appeal judgment
The Defendants appealed against Warby J's judgment that all but one of the articles complained of passed the serious harm threshold, leading the Claimant to argue in turn that Warby J had failed to properly interpret and apply section 1 and by doing so reached his conclusion in an unnecessary elaborate way.
Giving the leading judgment, Davies LJ concluded that section 1 of the Defamation Act was building on cases such as Thornton v Telegraph Media Group and Jameel v Dow Jones & Co to 'raise the bar' for bringing defamation cases.
As to where the bar was raised, Davies LJ held that section 1 effectively gave statutory status to Tugendhat J's ruling in Thornton that "the publication of which [the claimant] complains may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him or has a tendency to do so." Accordingly, Davies LJ held that section 1 only raises the threshold "from one of substantiality to one of seriousness: no less, no more but equally no more, no less".
Therefore, Davies LJ held that the words “likely to cause” in section 1 should not be understood as requiring a claimant to prove that it was more likely than not that serious harm would be caused, but rather that the words connote a “tendency” to cause serious harm.
Davies LJ rejected Warby J’s finding that the presumption of damage had been abolished, which he considered was not clearly intended by Parliament, but did find that a raised threshold of harm was nevertheless compatible with the presumption of damage. Accordingly, a preliminary hearing would not usually be necessary for a claimant to prove serious harm and this could be more effectively dealt with at trial so as to avoid duplication of evidence on both serious harm and quantum of damages.
He held that the point at which harm to reputation occurs would ordinarily be at the point of publication.
Comment
For claimants, this may be seen as a positive judgment as the threshold test under section 1 appears significantly lower than indicated in previous cases. One of the reasons often cited for the fall in the number of libel cases since the Defamation Act came into force is that the serious harm test has been discouraging claimants on the basis that they would not meet the threshold, and even after bringing a claim, a potentially expensive pre-trial hearing might be required to determine whether it was indeed met.
The Court of Appeal's judgment indicates that an inference of harm will be drawn in more cases. However, it is still unclear what sort of cases these might be. Whereas Cooke v MGN had already established that allegations of paedophilia and terrorism were clear examples of where an inference of serious harm would be drawn without the need to prove it, the Court of Appeal did not expand on these examples. Some further guidance in this respect would have been welcome, such as whether an inference could be drawn from any allegation of criminal conduct.
The Court of Appeal's ruling will undoubtedly provoke robust debate. Publications in particular are likely to be disappointed with what they will see as a dilution of Parliament's intention to limit unmeritorious libel claims. The case has been appealed to the Supreme Court and therefore this is unlikely to be the last word on the interpretation of section 1.