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Court of Appeal clarifies 'serious harm' test under defamation laws

A new ruling by the Court of Appeal has confirmed that it will not be as challenging for people to bring defamation claims before the courts in England and Wales under new defamation laws as many media organisations may have hoped, a specialist in media litigation has said.13 Sep 2017

Alex Keenlyside of Pinsent Masons, the law firm behind Out-Law.com, said many publishers had thought that the new 'serious harm' threshold that needs to be satisfied to bring claims under the Defamation Act 2013 marked a significant raising of the bar from the previous 'substantial harm' threshold that applied. The new threshold had been seen by many as the centrepiece of a raft of reforms which would make it harder for people to bring trivial claims.

However, in an eagerly anticipated judgment, the Court of Appeal said that people bringing defamation claims do not need to prove, at an early stage, that they have suffered, or are likely to suffer, 'serious harm' as a result of defamatory comments made about them for those claims to move to trial.

Instead, it can be inferred, from the seriousness of the meaning of the defamatory comments that is established, that serious harm has been caused, or is likely to be caused, it said. Often, defamation trials are preceded by hearings to consider the defamatory meaning of the statements complained of.

The Court of Appeal also clarified that various important principles of libel law remain intact. In particular, the Court confirmed that there should be a presumption of damages in libel cases, rejecting a High Court judge's finding that such a presumption does not have a significant role to play in defamation proceedings. Lord Justice Davis, who gave the leading judgment with which Lady Justice Sharp and Lord Justice McFarlane agreed, said that "the presumption of damage in libel cases … fits with the notion that what ordinarily causes the reputational harm is precisely the fact of the publication to others".

In its judgment, the Court of Appeal focused on the test to be applied for determining 'serious harm' when claims for defamation are brought by individuals. It said the High Court had, in considering the case before it, introduced "an unnecessarily elaborate procedure" by dealing with serious harm in detail as a preliminary issue. It said that "courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement".

However,  consideration of issues relating to whether the 'serious harm' test has been satisfied could be assessed at pre-trial hearings to determine the defamatory meaning of statements, and judges should generally infer that the threshold has been met "if the meaning so assessed is evaluated as seriously defamatory", the Court of Appeal said. "Serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning," said Lord Justice Davis, adding that, where necessary or appropriate, "the context in which the words are used (for example, in a newspaper article or widely accessed blog)" may also be considered.

The Court of Appeal said that the approach it was putting forward does not preclude those defending defamation claims from making a summary judgment application or applying to have the claim struck out as an abuse of process. 

The Court of Appeal was careful to make clear that the procedure may be different when determining whether the 'serious harm' threshold has been satisfied in cases where businesses have brought claims for defamation. This is because the Defamation Act's serious harm test for claims brought by businesses "clearly is designed to operate in a way rather different" to the test for claims brought by individuals, it said.

In its ruling, the Court of Appeal also reaffirmed the position that, even where defamatory statements are published in a number of different publications, "each libel, as published, is actionable as causing distinct damage to reputation".

It also confirmed that defamation claims are actionable from the date the defamatory statements are published, and that the limitation period after which claims can no longer be brought should be calculated from the date of publication too.

The Court of Appeal was ruling in a libel action brought by aerospace engineer Bruno Lachaux against three media organisations.

The Independent newspaper, its sister publication the 'i', the Huffington Post and the London Evening Standard had all published articles which contained allegations about Lachaux. Some of the allegations published included that he had been responsible for domestic abuse, had falsely accused his ex-wife of kidnap and had "callously and without justification snatched their son back from his mother’s arms", according to the ruling. The Defendants have lodged an application for permission to appeal to the Supreme Court.

Keenlyside of Pinsent Masons said that the Court of Appeal's decision "will be pored over by media lawyers since it is the first time that Court has grappled with the issue of serious harm".

"The decision will of course come as a blow to the media," Keenlyside said "There will be a sense that the Court has unjustifiably steered a course away from what parliament had intended when introducing the serious harm threshold. Certainly it seems clear, pending the outcome of any appeal, that section 1 of the Defamation Act can no longer be seen as marking a significant departure from the previous position, and the decision will therefore serve as something of a boon to claimants and claimant lawyers."