SC dismisses newspapers' 'serious harm' libel appeal

Five Supreme Court justices today unanimously rejected an attempt by newspapers to overturn a landmark court ruling on the ‘serious harm’ test for libel introduced by the Defamation Act 2013. Defamation specialists said the ruling could boost an already rising number of claims following a dip when the act came in to force. 

In Lachaux v Independent Print Ltd and another a French engineer resident in the United Arab Emirates brought a libel action against the publishers of the Independent and Evening Standard over articles about a child custody dispute.

The newspapers argued that the articles were not defamatory because they did not meet the ‘serious harm’ threshold under Section 1 of the 2013 act. However in the first significant ruling on the test, Mr Justice Warby, presiding judge of the media and communications list, ruled that the articles did serious harm. The Court of Appeal dismissed the newspapers’ appeal, finding that the words complained of had an inherent tendency to damage the complainant’s reputation. 

Dismissing the latest appeal, the Supreme Court returns to Warby J’s approach. In lead judgment, Lord Sumption finds no error in Warby J’s ‘serious harm’ finding which he states was properly based on a combination of the meaning of the words, the complainant’s situation, the circumstances of publication and the inherent probabilities. 

Lord Kerr, Lord Wilson, Lord Hodge and Lord Briggs agreed. 

Specialist defamation firm Carter-Ruck Solicitors noted that the case could have an effect on the ‘historically lively’ libel business in England and Wales. In 2016, the High Court received only 112 defamation claims, down from 227 in 2014, a decline attributed to the serious harm test. In 2017 however, numbers recovered to 156 and to 256 in 2018 – a 70% increase on the year. 

David Price QC and Jonathan Price, instructed by David Price, solicitor advocate, appeared for the appellants; Adrienne Page QC and Godwin Busuttil, instructed by Taylor Hampton, for the respondent. Guy Vassall-Adams QC and Romana Canneti and Edward Craven made written submissions for the Media Lawyers Association, which intervened in the case.