The Supreme Court handed down a unanimous judgment on Wednesday 12 June in Lachaux v Independent Print Limited, a defamation claim involving allegations of kidnap and domestic violence across multiple articles and publishers. The claim prompted intense scrutiny of the proper interpretation of the "serious harm" threshold introduced by the Defamation Act 2013, which requires claimants to show that the statements complained of "have caused", or are "likely to cause", "serious" reputational harm before the publication is actionable. The language was explained by Parliament in 2012 as intending to "raise the bar" a complainant needed to meet before bringing a claim. Until now, there has been contradictory guidance as to what "serious harm" means in practice, and the extent to which serious harm can be inferred, rather than proved as a matter of fact.
Commenting on the judgment handed down by the most senior English court, Mishcon de Reya's Head of Reputation Protection Emma Woollcott said:
"This decision provides much-needed clarity on what exactly is needed, in terms of evidence of serious harm, to bring a defamation claim in England and Wales. The words complained of must be inherently injurious i.e. have a tendency to lower the subject in the minds of right-thinking members of society generally, but s1 introduced an additional condition, that the words must also be shown to produce serious harm in fact. The Supreme Court has unanimously confirmed that the effect of the higher threshold is not a "revolution in the law of defamation", as many have argued, but a crystallisation of the new focus on the actual or likely impact of the words complained of, rather than what they might tend to mean as an abstract analysis.
The Supreme Court also confirmed that there is no rigid list of evidence required to demonstrate "serious harm"; the assessment of damage will always depend on the circumstances. The courts will consider a range of factors, including the scale of publication, the extent of actual readership in the UK, whether the statements complained of have come or would likely come to the attention of people who know the subject, as well as the gravity of the statements themselves. In Mr Lachaux's case, the Supreme Court said that he would have been entitled to produce evidence from those who had read the statements about its impact on them, but the claim would not fail for want of such evidence: "The judge’s role is to evaluate the material before the court, and to arrive at a conclusion on an issue on which precision will rarely be possible."
The Supreme court added that there is no principled reason why an assessment of the harm caused to the claimant’s reputation should not take account of the impact of the publications on those readers who had never heard of them at the time. This is particularly relevant to claimants who come to notoriety only as a result of a defamatory article or exposé, and who may include within their assessment of serious harm the fact that those who come to know them later will already have a diminished view of them.
According to the latest (2018) statistics from the Ministry of Justice, defamation claims were up 70% on 2017 (265 claims issued, up from 156), the same year that the Court of Appeal in Lachaux ushered in a more claimant-friendly reading of s1. With the Supreme Court now reverting to the High Court's stricter interpretation, but at the same time clarifying the evidential hurdle for claimants, time will tell how the ruling impacts on this upward trend."
Emma was quoted in The Times (subscription only).