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Lachaux v AOL (UK) Limited and Ors [2017] EWCA Civ 1334, McFarlane, Davis, Sharp LJJ

Case date: 12/09/2017

Court: Court of Appeal

Area/s of law: Libel

Barrister/s: Andrew Caldecott QC, Manuel Barca QC, Hannah Ready

 

This is the first Court of Appeal judgment on the meaning and effect of the ‘serious harm’ test in s. 1(1) of the Defamation Act 2013, and the practice and procedure to be followed where this is in issue. It is an important judgment in which the Court of Appeal overturned the first instance ruling on the effect of s. 1(1). It held that, contrary to the Judge’s and some commentators’ interpretation, s. 1(1) did not remove the presumption of harm in libel or ordinarily require the claimant to prove that serious harm had been caused or was likely to be caused, other than by showing that the defamatory meaning was such as to cause serious reputational harm, if appropriate taking into account the context of the publication. In so ruling the Court of Appeal clearly intended to bring to an end or at least minimise the number of preliminary or interim hearings on serious harm. 

The claims arose from the publication of five articles containing an account of what was alleged to be the behaviour of the claimant towards his former wife, including allegations of domestic abuse, child abduction, and fabricating false allegations against her with a view to having her imprisoned. Following a two-day trial of meaning, reference, serious harm and Jameel abuse as preliminary issues, Warby J found that four of the articles had crossed the serious harm threshold: [2015] EWHC 2242 (QB). 

The Court of Appeal dismissed the defendants’ appeal and gave guidance on s. 1(1) which included: 

  • The intention of s. 1(1) was to ‘build on’ cases such as Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) and Jameel (Yousef) v Dow Jones & Co. Inc [2005] EWCA Civ 75. The clear intention is to weed out, by means of a threshold of seriousness, trivial claims.
  • S. 1(1) gives statutory status to the test of what is defamatory adopted in Thornton, albeit raising the threshold from ‘substantially’ affecting in an adverse manner the attitude of other people towards the claimant, to a test of ‘seriousness’.
  • The words “is likely to cause” in s. 1(1) connote a tendency to cause serious harm.
  • S. 1(1) has not affected the common law presumption of damage in libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation, and the common law objective single meaning rule.
  • If the meaning conveyed by the words complained of is seriously defamatory it will ordinarily be proper to draw an inference of serious reputational harm. The defendant may seek to rebut or challenge the drawing of such an inference but, if the facts are in dispute, this may be a point more suitable for trial.
  • There may be cases where the question of serious harm can appropriately be dealt with at a hearing to determine meaning. Courts should ordinarily be slow to direct a trial of serious harm, involving substantial evidence, as a preliminary issue.
  • Defendants wishing to dispute the existence of serious harm at an interlocutory stage should consider making an application for summary judgment, which may be appropriate where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to meaning. The Court gave the example of where there is irrefutable evidence that the number of publishees is very limited, there has been no grapevine percolation, and there is firm evidence that no-one thought any less of the claimant by reason of the publication.
  • The jurisdiction to strike out on Jameel principles continues to be available, but is only relatively rarely likely to be appropriately used. 

The judgment did not deal with the operation of the serious financial loss requirement under s. 1(2), which applies to claims by bodies that trade for profit. The Court said it may be that in some respects the position under s. 1(2) will be different, and that s. 1(2) is designed to operate in a way rather different from s. 1(1). 

The Court held that given the seriousness of the defamatory meanings in the four articles, serious harm to the reputation of the claimant could be inferred. The Court also had regard to the claimant’s personal and professional reputation in the UK, the fact that the defendants’ publications have significant numbers of readers, and the status of the defendants as influential and reputable publishers. Warby J had been correct not to have regard to the fact that other media publications had published similar allegations, as to do so would offend the rule established in Dingle v Associated Newspapers Ltd [1964] AC 371. Warby J’s findings on reference, evidence, the claimant’s delay in complaining, and s. 12 of the Defamation Act 1952 were also upheld. 

Independent Print Limited and Evening Standard Limited have lodged an application for permission to appeal to the Supreme Court, which has not yet been determined. 

 

Andrew Caldecott QC, Manuel Barca QC, and Hannah Ready (instructed by Lewis Silkin LLP) represented AOL (UK) Limited.

 

The judgment is available here 

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