By David Chase, Deputy Underwriting Manager
The Supreme Court has handed down its long awaited judgment in the matter of Bruno Lachaux v Independent Print Limited and Evening Standard Limited, when it dismissed the newspapers’ appeals. The Court has upheld the decisions of the Court of Appeal and Warby J that each of the articles published by the newspapers in early 2014 had caused serious harm to Bruno Lachaux’s reputation for the purposes of section 1 of the Defamation Act 2013.
The outcome on the facts has been in Mr Lachaux’s favour at every judicial level, but the various judges involved had expressed distinct views on the proper interpretation and application of section 1 of the Defamation Act 2013.
The Supreme Court ruled that section 1 of the Defamation Act 2013 requires that serious harm to reputation be determined by reference to the actual facts about its impact, and not merely by reference to the meaning of the words, agreeing with Warby J.
In a judgment with which Lords Kerr, Wilson, Hodge and Briggs agreed, Lord Sumption summarised the effect of section 1 on the previous common law governing statements actionable per se in the Judgment at paragraph 17 “I agree, as the judge did, that this analysis is inconsistent with the previous common law governing statements actionable per se. But it is inconsistent with it only to this extent: that the defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant’s reputation. To that extent Parliament intended to change the common law. But I do not accept that the result is a revolution in the law of defamation, any more than the lower thresholds of seriousness introduced by the decisions in Jameel and Thornton effected such a revolution.”
Further the Court agreed with Warby J that a court can still infer serious harm to reputation from 1) the meaning of the words, 2) the circumstances including the scale of publication and 3) the inherent probabilities. Lord Sumption in the Judgment at paragraph 21 stated “The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome.”
However the Court did not agree with the idea that the accrual of the cause of action in libel is postponed until an adverse event occurs which can be proved as evidence of serious harm. The effect of this is that the decisive date continues to be the point of publication and the impact on the claimant’s reputation at that date [see Judgment paragraph 18 and paragraphs 22-24].
The Solicitor’s View
Megan O’Boyle of Taylor Hampton, solicitors for Bruno Lachaux, commented:
“Going forward, as well as considering the inherently injurious nature of the publication, it will also be important to consider to whom the statement was communicated and the impact of that communication, and that is equally applicable to both individuals and corporations.
In the specific case of our client Bruno Lachaux, the Supreme Court has now endorsed the decisions of both the High Court and the Court of Appeal that Bruno Lachaux suffered serious harm to his reputation when the Independent, the i and Evening Standard published articles concerning his alleged treatment of his now former wife”.
For the full Taylor Hampton Press Release, please click here.
David Chase, Deputy Underwriting Manager commented:
“The Supreme Court has given a useful judgment which provides thoughtful guidance on the interpretation and application of section 1 of the Defamation Act 2013. In future serious harm to reputation will have to be decided by reflecting on the nature of the publication, to whom the statement(s) was made and the impact of that statement(s). It also remains open to a court to infer serious harm to reputation from the meaning of the words, the circumstances of publication and the inherent probabilities.”
Temple Legal Protection Limited is the lead insurer for many high profile media and privacy cases, including the phone hacking litigation.
To find out about litigation/ATE insurance for media and privacy litigation for your firm and clients please call our commercial team on 01483 577877 or email firstname.lastname@example.org
David is the Deputy Underwriting Manager in Temple’s Commercial Department who partners with solicitors and brokers to provide litigation (ATE) insurance and funding solutions to businesses and individuals.
Having started his career in ATE insurance in 2006 at FirstAssist, David gained experience in litigation funding as an analyst at Burford Capital, before joining Temple Legal Protection in late 2013. Having worked for over 12 years in this evolving market, David knows what drives customers and he understands that it is how well you connect with the people you are trying to help that makes you succeed.
David has helped hundreds of customers and has worked with many of the leading law firms in the British Isles. He has extensive and varied experience in risk analysis, case management and long-term relationship management. One of David’s specialisms is his management of our fully-delegated schemes, a responsibility which plays an integral part in the retention of Temple’s partnerships with many leading and specialist commercial law firms.
In his role as Deputy Underwriting Manager, David considers a very wide variety of non-injury litigation including all types of commercial litigation, group actions, professional negligence cases, insolvency actions and contentious probate. He combines strategic activities – evaluating developments such as the impact of ADR on the commercial litigation sector – with expert underwriting in order to assist customers in making efficient and timely use of our litigation (ATE) insurance and funding products.
He continues to work towards his qualifications as a member of the Chartered Insurance Institute.
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