Update: August 2019

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The following updates relate to section 17.3 (Horsey & Rackley, Tort Law 6e) and section 15.1 (Horsey & Rackley, Kidner’s Casebook on Torts 15e).

As we noted in our preface, we were still waiting for the UK Supreme Court judgments in Lachaux v Independent Print Ltd and Stocker v Stocker as we finalised the text for the new editions. While we were able to alter the text relating to Stocker in Horsey & Rackley, Tort Law 6e the Lachaux judgment came too late.

Both cases are very interesting both on whether and when a statement will be defamatory, and more broadly on the use of the civil law in the context of reports of sexual and/or domestic violence, however they pull in different directions. Sadly, our comments in the pause for reflection box on p. 490 of Horsey & Rackley, Tort Law 6e remain true. (Though these criticisms are directed more at the findings of fact, rather than the operation of the ‘serious harm’ principle).

So what did the UK Supreme Court hold in Lachaux?

[See facts in section 17.3]

The UK Supreme Court dismissed the newspapers’ appeal, but for different reasons to the Court of Appeal, preferring the approach of Walby J in the first instance court. Lord Sumption gave the leading judgment, which with other members of the Court agreed.

The series of articles published in The Independent, i, the Evening Standard and Huffington Post, detailing allegations that the claimant had kidnapped his and his ex-wife’s son, as well as allegations of domestic violence made by the claimant’s ex-wife were defamatory and—crucially—were likely to cause the claimant serious harm.

Lord Sumption summarised the position so far (at [12]). What was at issue was—in effect—two competing interpretations of s1(1).

  • Mr Lachaux argued ‘the Act leaves unaffected the common law presumption of general damage and the associated rule that the cause of action is made out if the statement complained of is inherently injurious or, as Lord Phillips put it in Jameel and Tugendhat J in Thornton, it has a “tendency” to injure the claimant’s reputation. The effect of the provision on this view of the matter is simply that the inherent tendency of the words must be to cause not just some damage to reputation but serious harm to it’.
  • Whereas the defendant publishers argued: ‘that the provision introduces an additional condition to be satisfied before the statement can be regarded as defamatory, on top of the requirement that the words must be inherently injurious. It must also be shown to produce serious harm in fact. They submit that unless it was self-evident that such a statement must produce serious harm to reputation, this would have to be established by extraneous evidence’.

In the courts below ‘Warby J, after a careful analysis of the Act and the antecedent common law, substantially accepted the defendant publishers’ case on the law. But he found, on the facts, that the relevant newspaper articles did cause serious harm to Mr Lachaux. The Court of Appeal … preferred Mr Lachaux’s construction of section 1, but they upheld the judge’s finding of serious harm’. [12]

The Supreme Court held that:

  • Section 1 of the 2013 Act does amend the common law, in effect imposing a new threshold of seriousness and requires its application to be determined by reference to the actual facts about its impact, not merely the meaning of the words. [12]
  • Therefore a statement which would previously have been regarded as defamatory on the basis of the meaning of the words alone, is no longer actionable unless it ‘has caused or is likely to cause’ harm which is ‘serious’. [14]
  • The Court confirms that for a body training for profit the defamatory statement must have caused or be likely to cause ‘serious harm’ in the form of ‘financial loss’ (s1(2)), which exceeds the pre-2013 Act threshold of seriousness.

However, while the court agreed with the Newspaper’s (and Walby J’s) interpretation of section 1, their appeal has been describes as a ‘spectacular own goal’ as they lost—again—on the facts.

The claimant had, in the view of the Court, demonstrated to the trial judge as a matter of fact that the harm caused by the publications complained of was serious. Walby J had based is his finding of serious harm, rightly on

‘(i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements [made].’ [21]

 Lord Sumption continued:

‘The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome’. [21]

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