It is generally accepted that the Defamation Act 2013 ("the Act") raised the bar in defamation claims, making it harder for those wronged to issue claims. A recent decision of the Court of Appeal has lowered the bar somewhat which should be welcome news for those who wish to seek defend their reputations.
Section 1 of the Act sets out that a statement is not defamatory unless its publication has caused is likely to cause "serious harm" to the reputation of the claimant. This section introduced a statutory threshold test which was designed to help weed out trivial claims, but of course in so doing it will have also deterred certain valid claims from progressing. This is because it is not always obvious whether a defamatory statement will or will not cause "serious harm" to reputation and it often very hard for a Claimant to prove that their reputation has been damaged.
In Lachaux v Independent Print Limited (& others), the Court of Appeal considered the proper interpretation of the Section 1 test. Mr Lachaux was going through a bitter divorce with his wife and some way through the process he became aware of various reports about him and the divorce which were published in the press. These reports repeated accusations against Mr Lachaux made by his wife in which he was accused of various criminal conduct, including domestic violence and child abduction. All of this conduct was denied by Mr Lachaux and he sued the publishers in defamation. As a preliminary issue the High Court had to grapple with the Section 1 test and decided that Mr Lachaux had cleared the hurdle of "serious harm", but the publishers decided to appeal that decision and so the Court of Appeal then had its say.
After rehearsing the practical difficulties which Claimants often face in being able to establish harm to their reputations in the context of defamation claims, the Court of Appeal went on to say that the Section 1 requirement of "serious harm" could in fact be met by inference from the seriousness of the defamatory meaning of the words used against the Claimant. The more serious the defamatory allegations, the more likely it is that "serious harm" to the Claimant's reputation will result from the publication. In the case of Mr Lachaux, the allegations against him were very serious and so the Court of Appeal had no hesitation in deciding that he had cleared the Section 1 test, which enabled his defamation claim to proceed against the publishers.
In placing emphasis on the seriousness of the defamatory allegations the Court of Appeal has taken notice of the practical problems encountered by Claimants who have to establish "serious harm" to their reputations and has provided a good measure of support to them in overcoming the Section 1 test. While the Section 1 test will still operate to bar weak or trivial cases from cluttering up the Court system, no longer should parties so easily be put off bringing their claim by the application of that test.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
