September 18, 2017

The claimant, Mr Lachaux, was a French aerospace engineer who taught at a military college in Abu Dhabi. He brought libel proceedings against three different news publishers in respect of five articles first published between 20 January and 10 February 2014.

Each article contained an account of events in the UAE, including proceedings against Mr Lachaux’s ex-wife, Afsana Lachaux, for “kidnapping” the couple’s son. The articles reported allegations against Mr Lachaux said to have been made by Mrs Lachaux, who was described in one article as a “British victim of domestic abuse”. Each article contained similar defamatory meanings about him. In summary, the meanings were: (i) that Mr Lachaux was a wife-beater; (ii) that when Mrs Lachaux escaped, taking their son with her, he had falsely accused her of kidnap, causing her to face the risk of being jailed; and (iii) that Mr Lachaux had unjustifiably snatched their son back from his ex-wife.

The matter came before Mr Justice Warby on a trial of preliminary issues. Warby J found in favour of Mr Lachaux, ruling, among other things, that the articles concerned involved publication of defamatory statements that had caused or were likely to cause serious harm to Mr Lachaux. The defendant publishers appealed the decision.

Considering the meaning of serious harm under s 1(1) of the 2013 Act, the Court of Appeal disagreed with Warby J, finding that the common law presumption as to damage in cases of libel was unaffected by s 1(1). In Lord Justice Davis’s view, the presumption of damage in libel cases fitted with the notion that what ordinarily causes the reputational harm is precisely the fact of the publication to others. It is at that stage that the harm to reputation occurs, even if there may also subsequently be (although not necessarily so) consequential damage.

Further, the common law principle that the cause of action accrues on the date of publication, and the established position as to limitation, were also unaffected by s 1(1).

In addition, Davis LJ said, the common law objective single meaning rule was also all unaffected by s 1(1).

Davis LJ also found that if there was an issue as to meaning (or any related issue as to reference) that could be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there was a further issue as to serious harm, then there might be cases, he said, where such issue could also appropriately be dealt with at the meaning hearing. If the meaning so assessed was evaluated as seriously defamatory it would ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold was reached, further evidence would then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.

Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement, Davis LJ said.

Further, Davis LJ found, a defendant disputing the existence of serious harm might in an appropriate case, if the circumstances so warranted, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used).

In terms of the defendants’ appeal, however, Davis LJ found that Warby J had been, in terms of the outcome even if not in all respects in terms of his approach, correct to rule in favour of Mr Lachaux on the preliminary issue by reference to s 1(1) of the 2013 Act. In other words, he had been correct to find that serious harm had been caused to Mr Lachaux’s reputation. As Davis LJ said: “the gravity of the imputations derived from the published statements is obvious: and a clear inference is to be drawn that serious harm to the reputation of the claimant has been caused.” Warby J had also been correct to reject, as he did, the Jameel abuse contention, which had been made. Therefore, all grounds of appeal were rejected. (Bruno Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 (12 September 2017) — to read the judgment in full, click here).