Supreme Court confirms defamation is no longer actionable per se

In Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 the Supreme Court sought to clarify the meaning of section 1(1) of the Defamation Act 2013.  The Supreme Court was unequivocal in its rejection of the Court of Appeal's interpretation of section 1(1) and its endorsement of Mr Justice Warby's analysis of the law at first instance.

Section 1(1) states that "...a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."

Precisely what this means has been the subject of much debate amongst defamation litigants and practitioners since the Act came into force five years ago.

First instance decision

In 2014 libel proceedings were brought by French aerospace engineer Bruno Lachaux against the Independent and the Huffington Post in respect of allegations (including spousal abuse) they had published about him.  The matter was set down for a trial of preliminary issues.  In Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) Warby J concluded that it was for a claimant to prove that a publication had in fact caused serious harm to their reputation, or that it would probably do so in the future.  This meant that the existing common law presumption of damage in libel claims had effectively been abolished by parliament.  On the facts in Lachaux, Warby J found that serious harm had been made out in any event, referring to the standing and scale of the publications. He rejected the suggestion that an absence of tangible adverse reactions by publishees undermined his conclusions.

Court of Appeal decision

In Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, the Court of Appeal dismissed an appeal by the Defendants.  In doing so it found that the section 1 threshold could be reached by a much shorter route.  It held that it would normally be proper to draw an inference of serious reputational harm where the meaning of the words complained of was seriously defamatory.  In these circumstances, there would be no need for evidence (at least on the issue of liability). Furthermore, the Court held that the words ‘is likely to cause’ should be taken as connoting a tendency to cause.  Our blog on the Court of Appeal's decision can be found here.

The Huffington Post conceded the claim after the Court of Appeal's decision (see our blog here).  The Independent appealed again.

Supreme Court decision

The Supreme Court unanimously rejected the Court of Appeal's approach.  In delivering the judgment, Lord Sumption observed that the Court of Appeal's interpretation of section 1 would do nothing to alter the existing common law, which was clearly contrary to parliament's intention.  Sumption SCJ held that whether serious harm has been suffered must be determined by reference to actual facts - the impact of the statement - and not just the meaning of words.  Similarly, whether serious harm was "likely" in the future was a factual question based on probability.

Notwithstanding this, the defendant's appeal failed on the facts.  The Supreme Court was satisfied that Warby J's original factual finding on serious harm was correctly based on a combination of the meaning of the words, the circumstances of publication and Mr Lachaux's circumstances.  Thus, the position remains that Mr Lachaux has a finding of fact that the publications caused him serious harm to his reputation within the meaning of section 1(1).  Unless the matter now settles, the claim against the Independent will presumably continue to a full trial.

Commentary 

The Supreme Court's decision is obviously good news for defendants, but the impact of the decision will not necessarily be seismic.  Whilst claimants will no longer be able to seek an inference based on words alone, the Supreme Court acknowledged that inferences of fact could be drawn from the circumstances/context of the publication.  The relative ease at this can be done in suitable cases was demonstrated in the Court's summary of the analysis of the facts concerning the publications in the case before it:-

"[21]...On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact that the harm caused by the publications complained of was serious, Warby J held that it was. He heard evidence from Mr Lachaux himself and three other witnesses of fact, and received written evidence from his solicitor. He also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. He based his finding of serious harm on (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 and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady. Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome."

In cases where inferences of fact cannot easily be drawn, the age old question of how a claimant goes about proving serious harm to their reputation will once again be a troubling one for practitioners.  The Court of Appeal's claimant friendly-shortcut is now no longer a viable route.

Click here to find out how Brett Wilson LLP defamation solicitors can assist you if you have been defamed or accused of defamation.