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Raising the Threshold for Defamation - Test Case heard by the Supreme Court

Lachaux v Independent Print Ltd & Anor (2019)[2019] UKSC 27

For the first time the Supreme Court has considered the meaning and effect of the "serious harm" requirement in section 1(1) of the Defamation Act 2013. Section 1(1) provides that a statement is not defamatory unless it has caused or is likely to cause "serious harm" to reputation.

The facts

The claimant, Bruno Lachaux, lived with his British wife Afsana in the United Arab Emirates (UAE). The marriage broke down, and he 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 in its courts. In August 2012, the UAE court awarded custody of Louis to his father. In February 2013, Mr. Lachaux initiated a criminal prosecution against Afsana for abduction. In October, having found out where Louis was, he took possession of him under the custody order. In January and February 2014, a number of 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.

Mr. Lachaux brought claims against against the publishers of the Independent, the Evening Standard, and the publisher i. The High Court and the Court of Appeal found in favour of Mr. Lachaux. However, the newspapers appealed to the Supreme Court arguing that the statements in the articles were not defamatory because they "did not meet the threshold of seriousness" in section 1 of the Defamation Act ("2013 Act").

Supreme Court findings

The Supreme Court unanimously dismissed the appeal (albeit for different reasons from the Court of Appeal). By way of brief summary, the Court held:

• Section 1 of 2013 Act was intended to make a significant amendment to common law and has introduced a new threshold of serious harm so that the extent of damage is now part of the test for a defamatory statement.
• A statement that would previously have been regarded as defamatory because of its inherent tendency to cause some harm to reputation would not be considered actionable unless it had caused, or was likely to cause harm that was "serious".
• Section 1(2) deals with how section 1(1) applies to bodies trading for profit. It adopts the "serious harm" requirement but provides that the statement must have caused or is likely to cause "serious financial loss". The Court reiterated that this is not the same as special damage and would require an investigation into the actual impact of the statement.

Forbes comment

This landmark Supreme Court judgment both clarifies the serious harm test under the Defamation Act 2013 and raises the threshold of seriousness. Claimants can no longer simply rely on the meaning of words and the "inherent tendency" of those words to cause some harm to reputation. Claimants must now be able to provide evidence to demonstrate the actual impact of defamatory words to succeed under section 1 of the 2013 Act.

Source: Lachaux v Independent Print Ltd & Anor (2019)[2019] UKSC 27 (Lord Kerr, Lord Wilson, Lord Sumption, Lord Hodge, Lord Briggs) and Supreme Court press summary (12th June 2019).

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