Independent Print Limited and Evening Standard Limited
The Supreme Court has today handed down judgment in the above case in which Taylor Hampton acted for Bruno Lachaux. It has ruled that section 1 of the Defamation Act 2013 requires that serious harm to reputation be determined by reference to the actual facts about its impact, and not merely by reference to the meaning of the words.
In a landmark judgment on the Defamation Act 2013, the Supreme Court has dismissed the appeals of the Independent and the Evening Standard in libel proceedings brought against them by Bruno Lachaux, whereby they sought to argue that the articles they had published had not caused serious harm to his reputation.
Those articles were initially held in the High Court to mean that Mr Lachaux had (amongst other things) been violent and abusive towards his wife during their marriage, that he had callously and without justification taken their son away from his wife, and that he had falsely accused his wife of abducting their son. Despite the gravity of these claims, the publishers argued that their articles should not be considered defamatory of Mr Lachaux as they did not meet the new ‘threshold of seriousness’ introduced by s.1(1) of the Defamation Act 2013. Section 1(1) provides that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.
The Supreme Court has today ruled that serious harm to reputation in respect of both individuals and corporations can no longer be established by reference solely to the inherent tendency of the words to cause harm to reputation. The court can conclude that serious harm has been caused or is likely to be caused from a combination of the tendency of the words, the circumstances of publication and the inherent probabilities. But it must find that actual, serious harm has been caused or is likely to be caused. The Supreme court stated:
“This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated”.
The Supreme Court also confirmed the effect of Section 1(2), which provides that “harm to the reputation of a body that trades for profit is not serious harm unless it has caused or is likely to cause serious financial loss”. In addition to establishing that publication has actually caused or is likely to cause serious harm to its reputation, a corporation must show that injury to reputation has actually caused or is likely to cause serious financial loss.
The Supreme Court stated: “What is clear … is that section 1(2) must refer not to the harm done to the claimant’s reputation, but to the loss which that harm has caused or is likely to cause. The financial loss is the measure of the harm and must exceed the threshold of seriousness. As applied to harm which the defamatory statement has caused, this necessarily calls for an investigation of the actual impact of the statement. A given statement said to be defamatory may cause greater or lesser financial loss to the claimant, depending on his or her particular circumstances and the reaction of those to whom it was published. Whether that financial loss has occurred and whether it is “serious” are questions which cannot be answered by reference only to the inherent tendency of the words.”
The Supreme Court has also rejected the newspapers’ argument that the right to bring a case in libel should be postponed until some subsequent adverse event occurs which can be proved as evidence of serious harm. The crucial date remains the point of publication and the impact on the claimant’s reputation at that point.
Megan O’Boyle of Taylor Hampton, solicitors for Bruno Lachaux, stated:
“Going forward, as well as considering the inherently injurious nature of the publication, it will also be important to consider to whom the statement was communicated and the impact of that communication, and that is equally applicable to both individuals and corporations.
In the specific case of our client Bruno Lachaux, the Supreme Court has now endorsed the decisions of both the High Court and the Court of Appeal that Bruno Lachaux suffered serious harm to his reputation when the Independent, the i and Evening Standard published articles concerning his alleged treatment of his now former wife”.
About Taylor Hampton:
Taylor Hampton is a specialist defamation, privacy, phone hacking and internet litigation firm. Cases in which the firm has acted led to the closure of the News of the World and the establishment of the Leveson inquiry. The firm continues to be the forefront of the phone hacking litigation having acted in the landmark case of Gulati v News Group Newspapers which led to the highest awards to date of privacy damages at trial.
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