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Court of appeal clarifies "serious harm" in defamation actions

Posted on 18 September 2017 by Leyla Linton

Court of appeal clarifies  "serious harm" in defamation actions

A significant ruling by the Court of Appeal has clarified what constitutes "serious harm" in defamation actions.

In a move to raise the threshold for bringing a libel action, s 1(1) of the Defamation Act 2013, which came into force in 2014, set out 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 new statutory provision raised several questions including:

  • What, if any, proof of serious harm was required or whether damage could be inferred;
  • Whether claimants should wait for damage to occur before bringing a libel action; and
  • What would happen if the damage occurred after the limitation period for bringing a defamation action expired, i.e. more than a year after publication.

The judgment of Davis LJ in Lachaux v AOL (UK), Independent Print Ltd & Evening Standard Ltd [2017] EWCA Civ 1334 handed down on 12 September 2017 has now resolved some of that uncertainly.

Bruno Lachaux brought defamation proceedings against the Defendants after they published defamatory allegations about him including accusations of domestic violence, abuse and kidnapping.

At first instance, Warby J held - after a lengthy and costly preliminary hearing - that allegations had caused or were likely to cause serious harm to the Claimant's reputation saying that s1(1) of the Act meant that:

"It is now necessary to prove as a fact on the balance of probabilities that serious reputational harm has been caused by, or is likely to result in future from, the publication complained of."

At appeal, however, Davis LJ said:

If the imputation of the words used is serious, carrying with it the inference that serious reputational harm has been, or is likely to be caused, then it is, in my view, not right for a claimant to have to carry a further burden, at an interlocutory stage, of adducing further evidence to prove serious harm at a preliminary issue hearing.

A defendant who wished to make a challenge on serious harm could still apply for summary judgment or strike out in the normal way, he said.

Davis LJ also stated that it was the publication of defamatory allegations which causes damage and affirmed the common law principle that the cause of action accrues on the date of publication.

The ruling will provide comfort to those who are defamed and are considering defamation proceedings. It means that if seriously defamatory allegations have been published about them, they will be under less pressure to gather specific evidence that their reputations have been harmed, and they will be able to raise defamation complaints and bring defamation proceedings more swiftly. 

The decision is of most relevance to individuals, as opposed to companies. Davis LJ made clear his judgment did not address the s1(2) of the Defamation Act which states that bodies which trade for profit need to show the harm they have suffered has caused or is likely to cause "serious financial loss." Companies remain in the challenging position of not knowing exactly what evidence the courts will expect to see to be satisfied that they have suffered or will suffer "serious financial loss", and so are advised to give careful thought in advance to how defamatory allegations would affect their bottom line.