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Defamation: Supreme Court to clarify 'serious harm' test

The legal threshold that people must satisfy to bring defamation claims in England and Wales is set to be clarified by the UK Supreme Court.26 Mar 2018

Under the Defamation Act 2013, people must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation to bring a claim for defamation against the publisher.

What constitutes 'serious harm' has been considered by the High Court and Court of Appeal since the Act came into force, but the test is now set to be determined by the Supreme Court in the first libel case under the new Act to reach the UK's highest court since the legislation came into force. The Supreme Court has granted permission to Independent Print Limited and the Evening Standard  to appeal a 2017 Court of Appeal ruling in a case involving articles published about aerospace engineer Bruno Lachaux.

The Court of Appeal considered articles published by the Independent newspaper, its sister publication the 'i', the Huffington Post and the London Evening Standard which contained allegations about Lachaux. He has claimed that the articles were defamatory of him.

In its judgment, the Court of Appeal assessed how the 'serious harm' test under the Act should apply.

It first rejected the idea that people bringing defamation claims must prove, at a preliminary stage of proceedings, 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 be considered at trial. Often, defamation trials are preceded by hearings to consider the defamatory meaning of the statements complained of.

The Court of Appeal said that it can be inferred, from the seriousness of the meaning of the defamatory comments complained of, whether serious harm has been caused, or is likely to be caused, it said.

The High Court, in considering the case previously, had been wrong to state that detailed arguments between the parties over whether the 'serious harm' threshold had been satisfied should be established at a pre-trial hearing, the Court of Appeal said.

However, it said consideration of issues relating to whether the 'serious harm' test has been satisfied could be assessed at pre-trial hearings as part of an assessment of the defamatory meaning of statements. In those circumstances, judges should generally infer that the 'serious harm' 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 in the Court of Appeal's ruling, 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 maintained that the approach it put forward did 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 was also careful to make clear that the protocols may be different when determining whether the 'serious harm' threshold has been satisfied in cases where businesses have brought claims for defamation.

The procedures the Court of Appeal has set out around the application of the 'serious harm' test are, though, now set to be scrutinised by the Supreme Court after it granted some of the publishers in the Lachaux case permission to appeal against the Court of Appeal's judgment. Dates have not yet been set for hearings in the case.

Imogen Allen-Back, a specialist in media law at Pinsent Masons, the law firm behind Out-Law.com, said: "There is certainly a question mark over whether the decision of the Court of Appeal gave effect to the desired intention of parliament to 'raise the bar' for bringing a claim in defamation, rather than simply giving statutory effect to the 'substantial harm' threshold that was established in case law in 2010 in Thornton v Telegraph Media Group. At the very least, practitioners are hoping for some much needed guidance on the difference between 'substantial' and 'serious' harm."