Lachaux Part 2: the rule in Dingle and the timing of likelihood of serious harm
Lachaux v Independent Print Limited & Ors [2015] EWHC 2242 (QB)OverviewThis is the second part of the analysis of the judgment of Warby J in the case of Lachaux. This article focuses on Warby J's
Lachaux v Independent Print Limited & Ors [2015] EWHC 2242 (QB)
Overview
This is the second part of the analysis of the judgment of Warby J in the case of Lachaux. This article focuses on Warby J's judgment in respect of the rule in Associated Newspapers v Dingle as well as the judge's ruling in relation to the point in time when the likelihood of serious harm should be assessed.
The rule in Dingle
The rule in Dingle derives from a judgment of the House of Lords in 1962. The case was borne out of the publication by The Daily Mail and other papers on 17 May 1958 of a report of the contents of a Parliamentary Select Committee paper which defamed the claimant. This was immune from a claim in defamation because it attracted absolute privilege (statements made in either the House of Commons or House of Lords, or before a committee of either house, by members of parliament in their capacity as members attract absolute privilege). On 16 June the Mail published a further, unprivileged report to similar effect. The claimant was then subsequently cleared of any wrongdoing. The claimant sued the Mail in respect of the June article. The judge reduced damages on account of the earlier publications. However, the House of Lords held that this reduction was not legitimate. The earlier publication was inadmissible on the question of what general damages were appropriate to compensate the claimant for the June article complained of, which was neither privileged nor shown to be true. Further, the House of Lords held that damages should not be reduced on the ground that the Select Committee report had tarnished the claimant’s reputation.
In this case, the Defendants argued that serious harm had not been caused, nor was likely to be caused to the Claimant's reputation by virtue of the fact that other publications had made the same allegations about the Claimant and these publications had (i) a greater readership and prominence than the articles complained of; and (ii) had been published before the articles complained of. Additionally, the allegations would remain on the internet irrespective of the continued publication of the articles complained of. The Claimant argued that reliance on this material violated the rule in Dingle.
The Claimant submitted that Dingle was still good law in light of the Defamation Act 2013. The Claimant argued that Dingle is the authority for a rule that other publications to the same effect as the words complained of, or relating to the same incident referred to in the words, are inadmissible in relation to the assessment of general damages for injury to reputation.
Warby J agreed with the Claimant. He held that whilst a defendant may prove in mitigation that the claimant has a bad reputation in the relevant sector of his life, the rule in Dingle served to delineate the evidence which is admissible to establish such bad reputation. The court will admit evidence from individuals "who know the claimant or have had dealings with him" and who can speak of how a person is or is not esteemed, in the relevant sector of his reputation, or evidence of a conviction or possibly some other single incident. However, previous publications to the same effect are inadmissible. Warby J drew attention to the principle for the rule set out by Diplock LJ in Dingle: "If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes."
Therefore, when assessing serious harm, the court must disregard previous and similar publications to the words complained of.
The point in time when the likelihood of serious harm should be assessed
Whilst it was not necessary to for the judge to determine the point in time when the likelihood of serious harm should be assessed, Warby J stated that he was inclined to prefer the time at which the issue was determined as opposed to when the claim form is issued. Warby J stated that if the point in time is the issuance of the claim form, a claim would fail if actual damage had been caused at the time of the determination, but was not likely at the time of publication; and a claim would succeed if damage was likely at the time of publication even if it turned out that none was caused.
Overview
This is the second part of the analysis of the judgment of Warby J in the case of Lachaux. This article focuses on Warby J's judgment in respect of the rule in Associated Newspapers v Dingle as well as the judge's ruling in relation to the point in time when the likelihood of serious harm should be assessed.
The rule in Dingle
The rule in Dingle derives from a judgment of the House of Lords in 1962. The case was borne out of the publication by The Daily Mail and other papers on 17 May 1958 of a report of the contents of a Parliamentary Select Committee paper which defamed the claimant. This was immune from a claim in defamation because it attracted absolute privilege (statements made in either the House of Commons or House of Lords, or before a committee of either house, by members of parliament in their capacity as members attract absolute privilege). On 16 June the Mail published a further, unprivileged report to similar effect. The claimant was then subsequently cleared of any wrongdoing. The claimant sued the Mail in respect of the June article. The judge reduced damages on account of the earlier publications. However, the House of Lords held that this reduction was not legitimate. The earlier publication was inadmissible on the question of what general damages were appropriate to compensate the claimant for the June article complained of, which was neither privileged nor shown to be true. Further, the House of Lords held that damages should not be reduced on the ground that the Select Committee report had tarnished the claimant’s reputation.
In this case, the Defendants argued that serious harm had not been caused, nor was likely to be caused to the Claimant's reputation by virtue of the fact that other publications had made the same allegations about the Claimant and these publications had (i) a greater readership and prominence than the articles complained of; and (ii) had been published before the articles complained of. Additionally, the allegations would remain on the internet irrespective of the continued publication of the articles complained of. The Claimant argued that reliance on this material violated the rule in Dingle.
The Claimant submitted that Dingle was still good law in light of the Defamation Act 2013. The Claimant argued that Dingle is the authority for a rule that other publications to the same effect as the words complained of, or relating to the same incident referred to in the words, are inadmissible in relation to the assessment of general damages for injury to reputation.
Warby J agreed with the Claimant. He held that whilst a defendant may prove in mitigation that the claimant has a bad reputation in the relevant sector of his life, the rule in Dingle served to delineate the evidence which is admissible to establish such bad reputation. The court will admit evidence from individuals "who know the claimant or have had dealings with him" and who can speak of how a person is or is not esteemed, in the relevant sector of his reputation, or evidence of a conviction or possibly some other single incident. However, previous publications to the same effect are inadmissible. Warby J drew attention to the principle for the rule set out by Diplock LJ in Dingle: "If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes."
Therefore, when assessing serious harm, the court must disregard previous and similar publications to the words complained of.
The point in time when the likelihood of serious harm should be assessed
Whilst it was not necessary to for the judge to determine the point in time when the likelihood of serious harm should be assessed, Warby J stated that he was inclined to prefer the time at which the issue was determined as opposed to when the claim form is issued. Warby J stated that if the point in time is the issuance of the claim form, a claim would fail if actual damage had been caused at the time of the determination, but was not likely at the time of publication; and a claim would succeed if damage was likely at the time of publication even if it turned out that none was caused.