Supreme Court clarifies 'serious harm' in defamation law

The Supreme Court's unanimous judgment will be widely welcomed by media publishers, although the publishers in this case lost their appeal on the facts, according to defamation law expert Alex Keenlyside of Pinsent Masons, the law firm behind Out-Law.com. This is because the issue which the Court was addressing - the correct approach to the 'serious harm' threshold in section 1 of the Defamation Act 2013 - was decided in a way that will make it harder for claimants to bring successful libel claims, he said.

Under the Defamation Act 2013, claimants must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation in order to bring a claim for defamation against the publisher of the statement. Both the High Court and Court of Appeal have considered what constitutes 'serious harm' since the Act came into force, but this is the first time the issue hasreached the Supreme Court.

The case concerns articles published by the Independent, the 'i', the Huffington Post and the London Evening Standard, which reported allegations of domestic violence and kidnap made against aerospace engineer Bruno Lachaux by his ex-wife. In July 2015, the High Court found that the allegations made would cause serious harm to Lachaux's reputation.

The publishers appealed that decision to the Court of Appeal. In September 2017, the Court of Appeal held that while the High Court judge had reached the correct outcome on the preliminary issue, it disagreed on various aspects of his approach to the interpretation of the serious harm test under the Act.

High Court judge Mr Justice Warby had ruled that the Act requires a claimant to prove, on the balance of probabilities, that the statement has in fact caused serious harm to their reputation, or probably will do so. According to the judge, parliament’s intention was that the court should consider not just the meaning of the statement but all the relevant circumstances, including what harm had actually occurred.

The Court of Appeal disagreed with the judge's approach, concluding that by introducing section 1, parliament had merely “given statutory status to the decision in Thornton [the 2011 case which established a substantial harm test] whilst at the same time raising the threshold from one of substantiality to one of seriousness”, and that this was “both the extent of and limit to the change in the law”.

The Supreme Court once again dismissed the publishers' appeal on the facts. However, it also overturned the Court of Appeal’s interpretation of the Act, preferring the approach adopted by the High Court judge. The Supreme Court found that section 1 of the Act “raises the threshold of seriousness”above that envisaged in the case law prior to the Act, and“requires its application to be determined by reference to the actual facts about [the statement in question’s] impact and not just to the meaning of the words”.

"The Court of Appeal’s strained interpretation of the serious harm test can now be put to one side in favour of a more logical and literal reading of the statute," said Alex Keenlyside of Pinsent Masons.

"What’s less clear at the moment is what this decision will mean for case management. An important driver for the introduction of the 'serious harm' requirement was to eliminate those cases at the more trivial end of the spectrum in which substantial amounts of court time and legal costs could still be generated. The challenge for judges now is to find a way of managing cases efficiently such that in appropriate cases the 'serious harm' point can be tested at an early stage in proceedings, rather than at trial when all of that time and cost has been incurred,” he said.