Supreme Court decision handed down regarding the ‘serious harm’ threshold in defamation cases
‘Lachaux: The final act’ – Supreme Court clarifies the law on defamation
The Claimant, Mr Lachaux, previously lived with his British wife in the United Arab Emirates (UAE). Following a marital breakdown, the Claimant commenced divorce proceedings in the UAE in 2011 and sought sole custody of his son from the relationship. The Claimant’s wife subsequently went into hiding.
Having located his wife and son in October 2012, Mr Lachaux used the powers under a custody order granted by the UAE courts to take Louis into his care. Mr Lachaux also later initiated a criminal prosecution against his wife for abduction.
An array of British newspapers reported on the case between January and February 2014. Several of the articles which were published made allegations about Mr Lachaux’s conduct towards his former spouse during the course of their marriage and the legal proceedings that ensued.
Mr Lachaux commenced libel actions in the High Court against the publishers of the Independent, the Evening Standard, and i.
At a preliminary hearing in February 2015, Mr Justice Eady found that the articles published in the Independent and the Evening Standard contained 8 and 12 defamatory meanings respectively.
On analysis of the articles, the relevant remarks were construed to have meant that Mr Lachaux had:
- Been violent and otherwise abusive towards his wife at various points throughout their marriage;
- Hidden his son’s passport to stop her removing him from the UAE;
- Unfairly utilised the UAE legal system to deprive his wife of custody; and
- Falsely accused her of abducting him.
Neither of the publishers sought to contest the facts relied upon by Mr Lachaux, rather they asserted that the statements in the articles were not defamatory because they did not meet the ‘serious harm’ threshold codified in section 1(1) of the Defamation Act 2013 (“the Act”).
At first instance Mr Justice Warby held that Mr Lachaux had adequately demonstrated that his reputation had been seriously harmed by the defamatory remarks within the articles. Warby J’s decision, that serious harm had occurred, was based on a number of factors including:
‘(i) the scale of the publications;
(ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux;
(iii) that they were likely to come to the attention of others who either knew him or would come to know him I future; and
(iv) the gravity of the statements themselves’.
The Court of Appeal also dismissed the Claimants’ arguments on appeal but differed in its reasoning to that of Warby J.
The Supreme Court unanimously dismissed the appeal and in doing so applied much of the same reasoning as Warby J.
Key Points from the Judgment
In providing its Judgment the Supreme Court:
- Clarified unequivocally that the introduction of the ‘serious harm’ test in section 1(1) of the Act was intentionally formulated to incorporate the extent of the harm suffered by the claimant into the test for defamation. This change raised the previous threshold that existed by virtue of common law, that of a minimum threshold of seriousness.
- Provided the guidance that defamatory statements should not be considered to have caused serious harm purely based on their ‘inherent tendency’.
In other words, the question of whether actionable serious harm has arisen, or is likely to arise in future, should be decided by reference to both (a) the ‘inherent tendency’ of the remarks and (b) the actual factual impact of the statement(s) on the Claimant. As an ancillary point Lord Sumption also indicated that: ‘If past harm may be established as a fact, the legislator must have assumed that “likely” harm could also be done’; and
- Reiterated the guidance of section 1(2) of the Act that for an entity trading for profit the question of whether ‘serious harm’ had occurred in cases of defamation is contingent upon whether the trading body has suffered serious financial loss. The court stressed that establishing this degree of loss would necessitate a comprehensive factual analysis.
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