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Lachaux v Independent Print: It just got harder to sue for libel

  • United Kingdom
  • Litigation and dispute management
  • Technology, Media and Telecoms

14-06-2019

The Supreme Court this week handed down its much-anticipated judgment in Lachaux v Independent Print Limited & Evening Standard Limited [2019] UKSC 27.

The appeal was dismissed on the facts but the Supreme Court overturned the Court of Appeal’s interpretation of the “serious harm” test in s.1(1) of the Defamation Act 2013.

What’s the serious harm test?

It’s a hurdle which claimants in libel have to overcome which was introduced in the Defamation Act 2013 – claimants have to show that their reputation has suffered “serious harm” as a result of publication of a defamatory statement. For corporates, “serious harm” means serious financial loss.  Along with other elements of the 2013 Act this change was partly to address concerns that it was too easy to bring a defamation claim in England & Wales, which was increasing the amount of forum shopping, although the extent of that issue has often been overstated.

So what’s the problem?

Libel has always been actionable per se – which means you are able to sue on the basis of the infringement and claim general damages – you don’t need to show special damage. On one interpretation, the serious harm test introduced in the Defamation Act 2013 meant that libel was no longer actionable “per se” – evidence of loss was required.

This was controversial with potential claimants as it would make it significantly harder to bring a claim, and there was a certain lack of clarity. Case law post the Defamation Act 2013 suggested serious harm could be inferred from seriously defamatory imputations, which was arguably something of a fudge.

So what now?

The Supreme Court has clarified that the law was indeed changed by the Defamation Act 2013 – claimants do now have to evidence that they have suffered serious harm. Theoretically, that makes it harder for claimants to bring a claim.

However, serious harm can still be inferred in certain circumstances – in this case, it was inferred from evidence as to the a) scale of publication; b) the fact that the statement had been read by people in this jurisdiction who knew the claimant; c) others who knew the claimant or would come to know him in future were likely to read the publication; and d) the gravity of the statements.  

For more information, contact Andrew Terry or Eileen Weinert or await our in depth opinion piece in the next edition of the Entertainment Law Review.

For more information contact

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