The Supreme Court has today handed down its judgment in the highly anticipated case of Lachaux v Independent Print, clarifying the test for serious harm, the key test for defamation claims under section 1(1) of the Defamation Act 2013.
We will be publishing a full briefing in due course, however the key points are as follows:
The appeal was unanimously dismissed - Warby J's findings at first instance were found to be correct and based on "a combination of the meaning of words, Mr Lachaux's situation, the circumstances of publication and the inherent probabilities."
- Section 1(1) of the Defamation Act 2013 extended the previous common law and introduced a threshold of serious harm. Harm to a claimant's reputation is not established as "serious" just because the words complained of have a tendency to cause harm. The extent of the damage suffered is now part of the test for a defamation claim;
- Whether harm has been caused is to be assessed on the actual facts demonstrating the impact of the words complained of, while the question of whether a statement is "likely" to cause harm refers to probable future harm. If past harm can be established as fact, then future harm must be too;
- There no longer exists a presumption of harm resulting from a defamatory statement.
- For trading bodies, the measure of whether serious harm has occurred is financial loss (as per section 1(2) of the Defamation Act 2013), rather than special damages. The harm must exceed the threshold in prior to the 2013 Act and will require an "impact analysis".