Defendants should not be gleeful at prospect of Supreme Court allowing appeal on defamation test in Lachaux case

There is a sneaking suspicion among some media lawyers that our cases seem to get permission to appeal to the higher courts more regularly than one might expect.

Maybe it’s the fast-changing nature of media and communications law in the digital era; maybe it’s the sparkle and pizzazz of celebrities and gossip which brightens the day of overworked appellate judges.

Whatever the reason, Lords Kerr and Reed and Lady Black have outdone themselves by giving the defendants in Lachaux v IPL & ors [2018] 2 WLR 387 permission to appeal to the Supreme Court.

Flabbers are duly being gasted.

In summary, section 1 of the Defamation Act 2013 introduced a new test of “serious harm” for defamation claims to prevent technically viable actions over trivial allegations. Almost everyone agrees this is a good thing, but a real difficulty has arisen.

At common law, before the 2013 act, Mr Justice Tugendhat relied on Article 10 (freedom of expression) of the European Convention on Human Rights to develop the “threshold of seriousness” in Thornton v Telegraph Media Group [2011] 1 WLR 1985, whereby a defamatory allegation thereafter had to be substantially harmful to the claimant’s reputation.

But the threshold related to the seriousness of the harm arising out of an objective assessment of the meaning of the words – an allegation of murder was very serious, violent paperclip-throwing very not serious.

Section 1 requiring “serious harm” was – quite deliberately – a harder test for claimants to meet: on that everyone agrees. But there has been dispute among specialist judges in the Lachaux case as to what exactly Parliament has done.

In the High Court at trial [2016] QB 402, Mr Justice Warby – lead judge of the Media and Communications List – held that Parliament hadn’t just raised the threshold from “substantial” to “serious” harm, it instead introduced a separate test as to whether harm had as a matter of fact been caused to a complainant’s reputation and whether that was serious.

This was not a question of looking at the objective meaning of the words, but a matter instead upon which evidence could be heard.

However – and this is important – even this ruling on the law didn’t assist the particular defendants in Lachaux. The claimant faced allegations that he was a wife-beater who had falsely accused his ex-wife of kidnap, risking her imprisonment abroad, and snatching their son away from her.

Mr Justice Warby was satisfied that even his subjective factual test of serious harm was made out. The defendants appealed – the claimant’s lawyers argued he shouldn’t just have won on the facts, but he should have won on the law of section 1 as well.

In the Court of Appeal, Lord Justice Davis (with whom Lady Justice Sharp and Lord Justice McFarlane agreed) dismissed the appeal, and agreed with the claimant’s lawyers that Mr Justice Warby had erred.

Parliament had not created a separate factual test, but simply raised the objective threshold in Thornton from “substantial” to “serious” harm.

The decision was greeted with dismay by defendant lawyers and newspapers, including the incredibly-talented Nicky Cain of RPC. Some of them felt that this represented a loss or diminishment of a handy weapon to see off optimistic, or even opportunistic, claims.

Many of them will, I think, be heartened to see that the Supreme Court has taken the case, in the hope the appeal is allowed. I, however, wonder if such optimism is misplaced, for two main reasons.

First, the Court of Appeal didn’t undermine the “serious harm” test: they just said that it was a higher objective test concerning the meaning of words, rather than a separate factual test.

It sounds true that many claimants would struggle to prove factual harm to reputation at trial, but of the 50-odd cases which have mentioned section 1, I think only three resulted in the defendant winning at trial on “serious harm” (Cooke v MGN [2015] 1 WLR 895; Sobrinho v Impresa Publishing [2016] EMLR 12; Umeyor v Ibe [2016] EWHC 862 (QB).

All the other cases were either so obvious as to be decided without a trial of the issue, or the claimant won that point at trial – see for example: Monroe v Hopkins [2017] 4 WLR 68; Singh v Weayou [2017] EWHC 2101 (QB); Theedom v Nourish Training [2016] EMLR 10; Rahman v ARY [2017] 4 WLR 22; Umeyor v Nwakamma [2015] EWHC 2980 (QB), as well as Lachaux itself.

So while cases that are clearly nowhere near “serious harm” are easily being rebutted at the pre-action stage by reference to the new test, nothing will change: the law is still useful, and it’s very useful for defendants that the test is “serious” not just “substantial” harm.

But the cases that are stronger than that, and indeed good enough to pay the up-to-£10,000 court fee to issue the claim at the High Court (plus legal costs), the actual effect is that rather than lose cheaply, defendants have been mostly losing expensively.

In that sense, the Court of Appeal decision is perhaps a boon for defendants.

One of the primary aims of the Defamation Act 2013 was to reduce the cost burden of proceedings. Rather than lining the pockets of claimant lawyers, who got to earn full trial brief fees at defendants’ expense proving the serious factual effect of a libel, now even the strongest cases can see “serious harm” determined quickly and cheaply – without evidence – when the judge determines the single meaning of the words in half a day.

This is very disappointing for claimant lawyers with good cases, and therefore good for the defendants they’re suing. If you’re going to lose, at least lose cheaply.

Second, Lachaux actually makes it easier to be a defendant, or defendant lawyer.

If “serious harm” is to be determined by extrinsic facts and evidence of the effect of publication, you can never know how dangerous it is to publish particular words, or indeed how strong or weak a claim is until the trial (or at least until after you’ve seen their evidence).

But if “serious harm” is just a facet of the words themselves, and the objective seriousness of the “sting” of the libel, then the task of the pre-publication libel lawyer and editor becomes as manageable as it has ever been.

Publications can decide on their risk profile and govern themselves accordingly. The Court of Appeal in Lachaux has given newspapers and other publishers the greatest benefit that the common law bestows: predictability.

There will always be some borderline claims that will be harder to defeat early as a result of the Court of Appeal’s decision, but my estimation is that they are massively outweighed by those that are either a) so weak that the Court of Appeal’s construction doesn’t stop them being struck-out without a trial, or b) so strong that the only effect of a trial of “serious harm” would have resulted in more expensive proceedings at an earlier stage.

My view is that – as well as being a very good judgment – the decision of Lord Justice Davis is one that actually should be endorsed by those who act for defendants.

Ideally it would have been given a few years as settled law, and that will come to pass if the Supreme Court simply uphold the decision of the Court of Appeal (as I think they are more likely than not to do).

But even the faint prospect of the Court of Appeal being overturned by the Supreme Court is not – contrary to most defendant lawyers’ views – a matter defendants should anticipate with any sense of glee at all.

Disclaimer: I act for both claimants and defendants, including in two of the cases cited above – Monroe v Hopkins & Singh v Weayou. I am a self-employed member of 5RB chambers, and although I have had no involvement in the case, two other members of 5RB – Adrienne Page QC and Godwin Busuttil – act for the Claimant in Lachaux.

Picture: UK Supreme Court

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