[co-author: Louis Biggs]

Evidencing in court that a defamatory statement has caused harm to your reputation can be notoriously difficult. The courts in the UK have therefore traditionally proceeded on the basis that, where a statement is proven to be defamatory, harm is presumed, unless the defendant can prove otherwise. This approach was brought into doubt by the Defamation Act 2013 (the “Act”), which requires that the harm caused by defamation must be “serious” before it is actionable.  Does this mean the claimant must now prove that serious harm has been caused in every case?

In Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, the Court of Appeal has reversed an earlier decision of the High Court and confirmed that following the Act there is still a presumption of harm in defamation cases. However, there is no presumption that “serious” harm has been caused, which would need to be proven by the claimant.

The case concerned a series of articles published by the Huffington Post, The Independent and The Evening Standard in 2014 that suggested Bruno Lachaux, a French aerospace engineer, was guilty of domestic violence, child abduction and manipulating the Emirati legal system to deprive his former partner of access to their child, Louis.

Mr Justice Warby’s decision in the High Court held that the Act requires a claimant to prove at a preliminary stage that on the balance of probabilities a statement had caused or was likely to cause serious harm and that this test displaced the presumption at common law that defamation was actionable without proof of harm. On the facts, Warby J held that all but one of the articles passed the serious harm threshold.

The Defendants appealed against the findings.

The Court of Appeal dismissed the appeal. In doing so, the Court agreed with Warby J that the serious harm threshold had been met by the articles in question. However, the Court of Appeal found that Warby J had erred in holding that the presumption of reputational harm had been displaced by the Act. Lord Justice Davis stated that defamatory words are still presumed to harm the subject’s reputation, meaning that the tort is committed when the statement is published not when the harm is – and can be proven to have been – caused. However, there is not a presumption that “serious harm” has been caused. This has to be proven by the claimant.

Davis LJ was quite prescriptive on how an individual claimant can prove “serious harm.” He criticised the use of a preliminary hearing, involving substantial evidence on whether there had, in fact, been serious harm. Instead, if “serious harm” was in dispute, the preferred approach would be to deal with the issue at the meaning hearing. If the meaning of the statement was evaluated as “seriously defamatory“, it would then ordinarily be proper for the courts to infer serious reputational harm. Once that threshold was reached, further evidence of harm would then be relevant to quantum and any continuing dispute should be left to trial.

Publishers, who may have hoped that the Act would allow weak claims to be disposed of at a preliminary stage, will be disappointed by the decision. The Court of Appeal did not give much guidance on the circumstances in which an inference of serious harm might be drawn. For example, when will a statement be considered “seriously defamatory“, allowing an inference of serious harm to be made, and when will a statement be merely defamatory, meaning a claimant would need to provide other evidence they have suffered serious harm?

An application for permission to appeal to the Supreme Court has been lodged and it seems likely the UK’s highest court will want to further clarify the meaning of “serious harm” and when this assessment should be made.