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knowledge 26 June 2019 |

UK Supreme Court Raises the Bar in Proving Serious Harm for Defamation Actions

The UK Supreme Court has clarified that under the Defamation Act 2013 a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the plaintiff’s reputation.  This must be determined by reference to the facts about the impact of the statement and not just the meaning of the words.

Lachaux v Independent Print Ltd1 reinforces a significant divergence of approach between Ireland and the UK as regards the proofs required in defamation actions.  Those seeking to recover damages for defamation in England and Wales must now plead the actual facts surrounding the impact of the defamatory statement and it is no longer sufficient to rely on the meaning of the words as proof of serious harm, moving beyond the test as set out in Thornton v Telegraph Media Group Ltd2 and Jameel (Yousef) v Dow Jones & Co Inc.3 This renewed emphasis on actual harm as a precursor to a defamation action is starkly different to the low threshold of proof required in Ireland under the Defamation Act, 2009.

In Lachaux the newspapers argued that the statements published were not defamatory because they did not meet the “serious harm” test under section 1(1) of the Defamation Act 2013 (the “2013 Act”).

The Court of Appeal had focused on the inherent tendency of the defamatory statements to damage Mr Lachaux’s reputation when considering section 1 of the 2013 Act.  The Supreme Court took a different approach, largely affirming the judgment of Warby J in the High Court, and finding that the claimant had proven “serious harm” based on evidence which included the meaning of the words, Mr Lachaux’s situation, the circumstances of publication and the likely implications for Mr Lachaux as a result of these defamatory statements.

Crucially, Lord Sumption found that section 1 not only raises the threshold of seriousness from that in Jameel and Thornton, but also requires its application to be determined by reference to the actual facts, not merely the meaning of the words.

In relation to companies trading for profit, Lord Sumption held that the threshold of “serious financial loss” under section 1(2) of the 2013 Act must refer not to the harm done to the company’s reputation but to financial loss which the alleged harm has caused or is likely to cause.  Therefore “serious financial loss” for corporate bodies is not special damage, but rather the measure of “serious harm” referred to in section 1(1) of the 2013 Act.

Implications for Irish law

While this judgment has no immediate implications for Irish plaintiffs or defendants, it illustrates the growing differences in approach as between the two jurisdictions and is likely to give rise to an increase in forum shopping, a phenomenon already seen in Ireland as a result of the introduction of the serious harm threshold in England and Wales.  The jury remains central to Irish procedure and there is no immediate prospect of this changing, cemented by the constitutional backdrop whereby the right to a good name and freedom of expression are enshrined equally by the Constitution.  While checks on very high damages awards are becoming more frequent, damages overall are consistently higher and there seems little prospect of any reversal of the burden of proof given the constitutional position.

  1. [2019] UKSC 27.
  2. [2010] EWHC 1414 (QB).
  3. [2005] EWCA Civ 75.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.