High Court Explains “Serious Harm” under Defamation Act

The Defamation Act 2013 (“the Act”) reformed the law relating to slander and libel in England and Wales and introduced a new entry requirement for claimants wishing to bring a defamation claim: a claim can only be brought if the relevant publication has “caused or is likely to cause serious harm to the reputation of the claimant” (section 1(a)).

Recently, the High Court in Lachaux v Independent Print [2015] EWHC 2242 (QB) has provided important clarity on the term “serious harm” in actions under the Act. The case related to allegations about the claimant, which were published in three UK newspapers and on a major online news website. Mr Justice Warby ruled that “serious harm” to a person’s reputation must be proved by the claimant, and cannot be presumed to be caused simply because published material was defamatory. The court did, though, find that in four of the five articles which were the subject of the claim, serious harm had been proven.

Facts of the case

The claim related to five separate articles published in The Independent, i, the London Evening Standard and on the Huffington Post, which included allegations made by the claimant’s British ex-wife that the claimant, a French aerospace engineer working in the UAE, had kidnapped his son from his ex-wife. One of the issues before the court was the correct application of the term “serious harm” under section 1(1) of the Act.

The claimant’s counsel submitted that the term should be understood as seeking to exclude trivial claims, by defining defamatory material as that which has serious harmful effect. The defendants, relying on the earlier High Court decision in Cooke v MGN [2014] EWHC 2831 (QB), argued that the term meant the claimant had to establish that serious harm had been factually caused to his reputation, or to raise proof that it probably will be caused in the future.

The judge sided with the defendants’ submission, concluding that Parliament had intended to clarify that a statement is not defamatory unless it is proved on the balance of probabilities by the claimant that it has caused or will probably cause serious harm to the claimant’s reputation. Despite this, counsel for the claimant was able to adduce evidence showing that the defamatory material had in fact caused serious harm to the claimant’s reputation, with regard to four of the five articles. Due to this, the court ultimately ruled in favour of the claimant.

Significance of the ruling in Lachaux

The ruling in Lachaux represents the first thorough analysis of the meaning of section 1 of the Defamation Act 2013 since its enactment. The effect of Warby J’s judgment is that the statute has stiffened the test for claimants to bring successful libel actions, compared to the common law position prior to its implementation. The previous regime had operated on the basis that defamatory material carried a presumption of damage. One of the defendants is expected to apply for permission to appeal against the finding of serious harm, so the Court of Appeal may express its own view on the term in due course.

MCT Assessment Impact

Candidates on the MCT in February 2016 (and beyond) are reminded that unless otherwise stated in advance, they are expected to apply the law as it stands on the date of the assessment.

Updates containing case law together with other important new laws that have recently come into force are available to download on our MCT Online Training System. As the ruling in this case emanated from the High Court, and expected to be challenged in the higher courts, we shall not be updating the course material in the light of the decision until any appeals have been dealt with conclusively, whether the Court of Appeal or Supreme Court.

If you are signed up for the QLTS School MCT Course, log in to your online account, or check our MCT course packages and ensure you are well prepared for the assessment.

qlts free consultation