June 17, 2019

Section 1(1) of the Defamation Act 2013 provides: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

The claimant, Bruno Lachaux, is a French aerospace engineer who at the relevant time lived with his British wife, Afsana, in the United Arab Emirates. The marriage broke down and in April 2011 Mr Lachaux began divorce proceedings in the UAE courts and sought custody of their son, Louis. In March 2012 Afsana went into hiding with Louis in the UAE, claiming that she would not get a fair trial there. In August 2012 the UAE court awarded custody of Louis to his father. In October 2012 Mr Lachaux, having found out where Louis was, used the powers under the custody order to take Louis under his care, and subsequently initiated a criminal prosecution against Afsana for abduction. In January and February 2014 several British newspapers published articles making allegations about Mr Lachaux’s conduct towards Afsana during the marriage and in the course of the divorce and custody proceedings.

The appeals arose out of two libel actions begun by Mr Lachaux in the High Court in December 2014 against the publishers of the Independent and Evening Standard, and a third begun in January 2015 against the publisher i.

In February 2015 Mr Justice Eady held that the Independent and Evening Standard articles had eight and 12 defamatory meanings respectively. In short, they were (amongst other things) that Mr Lachaux had been violent and abusive towards his wife during their marriage, had hidden Louis’ passport to stop her removing him from the UAE, had made use of UAE law and the UAE courts to deprive her of custody and contact with her son, had callously and without justification taken Louis out of her possession, and had then falsely accused her of abducting him.

The newspapers argued that the statements in the articles were not defamatory because they did not meet the “serious harm” test under s 1(1) of the 2013 Act. At first instance Mr Justice Warby disagreed, holding that on the evidence the harm caused was “serious” within the meaning of s 1(1). The Court of Appeal dismissed the newspapers’ appeal, but focused instead on the inherent tendency of the words to damage Mr Lachaux’s reputation. The newspapers appealed to the Supreme Court against the finding of “serious harm”.

The Supreme Court unanimously dismissed the appeal, but for reasons different from those of the Court of Appeal.

Giving the lead judgment, with which all members of the Supreme Court agreed, Lord Sumption noted that before the 2013 Act, two decisions (Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985) introduced the requirement that damage to reputation in defamation actionable per se must pass a minimum threshold of seriousness.

Lord Sumption held that s 1 of the 2013 Act not only raised the threshold of seriousness from that in Jameel and Thornton, but also requires its application to be determined by reference to the actual facts about its impact, not merely the meaning of the words.

First, Lord Sumption said that the 2013 Act undoubtedly amended the common law to some degree, so the least that s 1 achieved was to introduce a new threshold of serious harm that did not previously exist. If “serious harm” could be demonstrated only by reference to the inherent tendency of the words, no substantial change in the law would have been achieved. However, it was clear that s 1 was intended to make the significant amendment that the extent of damage was now part of the test for a defamatory statement.

Secondly, Lord Sumption said that s 1 necessarily meant that a statement which would previously have been regarded as defamatory, given its inherent tendency, was no longer actionable unless it “has caused or is likely to cause” harm which is “serious”. The words “has caused” refer to the consequences of the publication, specifically historic harm. This was a factual matter, he said, which must be established by reference to the impact of the statement. It depended on a combination of the inherent tendency of the words and their actual impact on the recipients. The words “likely” to be caused naturally referred to probable future harm. If past harm could be established as a fact, Parliament must have assumed that future harm could too.

Thirdly, Lord Sumption said that s 1(1) must be read with s 1(2), which deals with how s 1(1) is to be applied to defamatory statements in relation to a body trading for profit. Section 1(2) adopts the “serious harm” requirement, but provides that for such a body the statement must have caused or be likely to cause “serious financial loss”. Therefore, for trading bodies, the “financial loss” in s 1(2) is the measure of the “harm” referred to in s 1(1), not special damage as understood in the law of defamation. In other words, it must exceed the pre-2013 Act threshold of seriousness, which requires an actual impact analysis.

Lord Sumption did not accept that this interpretation of s 1 would lead to any major inconsistency with s 8 (on limitation) or s 14 (on slanders actionable per se).

On the facts, Lord Sumption largely adopted Warby J’s legal approach, finding no error in his “serious harm” finding. The finding was properly based on a combination of the meaning of the words, Mr Lachaux’s situation, the circumstances of publication and the inherent probabilities. (Lachaux v Independent Print Ltd [2019] UKSC 27 (12 June 2019) — to read the judgment in full, click here).