Newsflash: Supreme Court confirms what constitutes ‘serious harm’ for defamation claims

20th June 2019

Walker Morris’ Head of Commercial Dispute Resolution Gwendoline Davies explains that the Supreme Court has now clarified the test for ‘serious harm’, which must be established in any defamation claim.

In Lachaux v Independent Print Ltd & Ors [1] the Supreme Court has reinforced that Section 1 of the Defamation Act 2013 (the Act) should limit the number of defamation claims by redressing the balance between protecting the reputation of a claimant on the one hand, and the importance of the right to freedom of expression on the other.  Walker Morris’ Head of Commercial Dispute Resolution highlights the key points arising from this high profile case.

Why is this case of interest?

In Lachaux, the Supreme Court has provided important clarity as to the interpretation of the ‘serious harm’ test which will impact directly a potential claimant’s ability to establish defamation.

Following this case, potential defamation claimants should consider their position more carefully than ever before and should seek advice from a specialist legal advisor before rushing to issue court proceedings. Whilst defamation as a cause of action remains available to protect serious damage to reputation, the Supreme Court’s interpretation of the statutory test means that, going forward, fewer cases will get off the ground.  Furthermore, well-advised defendants may increasingly be able to stop a claim in its tracks by immediately requesting a trial of preliminary issues or by issuing a retraction and apology.

Supreme Court clarity – the bar has been raised

In 2015 we reported on the background to this case and on the legal and practical points arising from the High Court’s earlier finding that harm caused to the claimant by publications made in newspapers owned by the defendant was serious within the meaning of section 1 of the Act.  Since then, appeals by the newspapers to both the Court of Appeal and, more recently, to the Supreme Court have been dismissed.

The Supreme Court unanimously held that:

• section 1(1) of the Act raises the threshold of seriousness required for a publication to be defamatory above that hitherto required at common law
• whether or not the ‘serious harm’ test is met must be determined by reference to actual facts about the consequential impact of the alleged defamation
• in the case of publications which refer to corporate bodies, 1(2) of the Act notes an additional aspect to the ‘serious harm’ test – namely that proof of actual or likely ‘serious financial loss’ directly caused by subsequent reputational harm is required.

The Supreme Court also largely endorsed the approach of the High Court to the analysis and assessment of defamation claims (as summarised in our earlier briefing).

WM Comment

The effect of defamatory publications can be pervasive and difficult to quantify, yet potentially devastating. Whether you are an individual or business whose reputation is under threat from potentially defamatory publications; or whether you are a defendant facing a potential claim or complaint, please do not hesitate to speak to one of our specialists, who will be pleased to assist you with a ‘serious harm’ test assessment and to provide you with a tailored resolution strategy for your case.

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[1] [2019] UKSC 27