Court of Appeal clarifies guidance on "serious harm" requirement under Defamation Act 2013

In an important decision for the law of defamation, the Court of Appeal has clarified the meaning and effect of the requirement to show “serious harm” under the Defamation Act 2013: Lachaux v Independent Print & Ors [2017] EWCA Civ 1334. In doing so, it has departed from the approach adopted at first instance (see here for our post on the High Court decision).

Section 1(1) of the Defamation Act 2013 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”. The High Court found that this required a claimant to show actual or probable harm on the balance of probabilities before a statement was actionable, and so displaced the common law presumption of damage in libel claims.

The Court of Appeal disagreed. It held that section 1(1) raised the threshold of harm that must be proved from “substantial” (as it was under the common law) to “serious”, but that this did not affect the presumption of harm itself or the principle that the cause of action arose upon publication.

As a matter of case management, the Court of Appeal also held that where the “serious harm” requirement is in issue, it should not ordinarily be tried at a separate preliminary hearing (as it was before the High Court).

Alan Watts, partner, Neil Blake, partner, and Angela Liu, associate, in our disputes team consider the decision further below.

Background

The claimant commenced libel proceedings against the defendant news publishers in respect of five articles containing allegations of domestic abuse and child abduction, among other things, that were made against him by his ex-wife.

The matter came before the High Court (Warby J) on a trial of preliminary issues. One of those issues concerned the proper interpretation and impact of section 1(1) of the Act, which replaced the old common law requirement to show that a statement had caused or had a “tendency” to cause “substantial” reputational harm, following Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB).

Warby J concluded at first instance that the intention of Parliament in enacting section 1(1) was to establish a new and stiffer statutory test requiring consideration of actual harm. This necessarily displaced the common law presumption of damage in libel claims and required a claimant to prove, on a balance of probabilities, and in light of all the circumstances, that a statement has caused or will probably cause serious harm.

Warby J confirmed that his approach required a court to have regard not only to the meaning of a statement and the harmful tendency of that meaning, but also to the evidence of what had actually happened after its publication. He therefore advised that, in cases where the “serious harm” requirement was in issue, it was usually preferable for it to be tried at a preliminary hearing.

On the facts of Lachaux, Warby J found that four of the five articles satisfied the “serious harm” requirement. The defendants appealed the decision. The claimants sought to uphold the decision but argued that it should have been reached by a much shorter route on a proper interpretation and application of section 1(1).

Decision

Giving the judgment of the Court of Appeal, Davis LJ upheld the decision below but agreed with the claimant that Warby J had taken the wrong approach to the “serious harm” requirement.

Davis LJ held that the effect of section 1(1) was limited to raising the threshold of harm from the common law "substantial" to the statutory "serious", with the latter conveying something “rather more weighty” than the former. The words "is likely to cause" should be read to connote the "tendency" to cause serious harm described in the foregoing common law, rather than a test on the balance of probabilities.

Davis LJ also affirmed the common law principles that (i) damage to reputation is presumed and (ii) a cause of action for libel arises at the time of publication: it is at that stage that harm to reputation occurs, even though there may (but need not) be consequential damage. Davis LJ disapproved Warby J's finding that a cause of action would only arise when serious harm is in fact suffered – such an approach would give rise to uncertainty for limitation purposes and would create an "ambient cause of action, drifting in and out of actionability" based on subsequent events.

In respect of case management, the Court of Appeal noted critically that the preliminary issue hearing before Warby J had run to two full days and had involved both written and oral evidence. Davis LJ held that courts should ordinarily be slow to direct a preliminary issue hearing, involving substantial evidence, on the “serious harm” requirement alone.

In cases where there is also an issue as to meaning, then any issue of “serious harm” may be swiftly addressed at the meaning hearing. If the meaning is found to be seriously defamatory, it would ordinarily be proper to draw an inference of serious reputational harm. Any continuing dispute should then be left to trial or, if appropriate, a defendant could apply for summary judgment or strike-out under the “abuse of process” doctrine for trivial claims: Jameel v Dow Jones [2005] EWCA Civ 75.

Davis LJ noted that the position with respect to bodies trading for profit, under s.1(2) of the Act, might be different in some respects. Section 1(2) provides that harm to the reputation of such a body is not “serious harm” unless it "has caused or is likely to cause the body serious financial loss". Davis LJ commented that he was saying nothing about that subsection, which "clearly is designed to operate in a way rather different from s.1(1)".

Comment

In what will come as a disappointment for publishers, the Court of Appeal made clear that the effect of section 1(1) was not to overhaul the common law or to erect a new hurdle for claimants to overcome, but simply to raise the threshold of harm that must be proved from “substantial” to “serious”.

Although there is little guidance on the circumstances in which a finding of "serious harm" will be made and much uncertainty remains for claimants, the Court of Appeal's decision provides some welcome clarification. In particular, it is helpful to reaffirm that a cause of action for libel will arise upon publication and not at some hard-to-determine later date where serious harm can be proved, and so a claimant can determine with reasonable certainty his/her limitation position. However, if serious harm arises on publication, that could serve to limit attempts by defendants to avoid liability entirely with a prompt retraction.

The Court of Appeal was nonetheless clear as to the statutory intent: section 1(1) was not intended to “leave defendants at the mercy of trivial claims” – in the right circumstances, a defendant might still seek to throw out a trivial claim by seeking summary judgment under section 1(1) and/or an application under the Court's Jameel jurisdiction.

Permission to appeal to the Supreme Court from the Court of Appeal’s decision in Lachaux has been sought.

Note: The Supreme Court affirmed the reasoning of the High Court and departed from that of the Court of Appeal, although it dismissed the appeal on the facts. See our post on the Supreme Court decision here.