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Lachaux v Independent Print, defamation and the serious harm test

Written by Samuel O'Toole on 08 November 2018

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Next week, 13th and 14th November to be exact, the Supreme Court will hear the case of Lachaux (Respondent) v Independent Print Limited and another (Appellants) UKSC 2017/0175. The case is an appeal by Independent Print Limited from the decision at first instance as the Court of Appeal decided not to grant permission to appeal and upheld the decision.

The decision at first instance held that that section 1(1) of the Defamation Act 2013 (‘the Act’) raised the threshold for the test of serious harm from the case of Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. Warby J said that the test for serious harm requires at a minimum that a statement be so seriously defamatory that serious reputational harm can be inferred.

The Supreme Court will consider the true construction of section 1(1) of the Act. The case is somewhat ground breaking as it will be the first time the Supreme Court has been asked to review and consider the serious harm test.

The case of Lachaux v Independent Print relates to articles that were published by The Independent, ‘i’, the Evening Standard and the Huffington Post. These articles gave an overview of matters taking place in the United Arab Emirates, in particular the allegation that Lachaux had kidnapped his and ex-wife’s son.

Independent Print Limited went on to apply to the Court for an order that there be a trial of preliminary issues, one such issue was whether the publication of the articles met the serious harm test.

Warby J found that it was necessary for a statement be so seriously defamatory that serious reputational harm can be inferred. The Court of Appeal then went on to refuse to grant permission to appeal finding that whilst Warby J came to the correct conclusion, the interpretation of section 1(1) of the Act created a substantial change to the law of defamation and particularly the Act. The Court of Appeal said that the change of the law was not what Parliament had in mind when drafting the Act.

Independent Print and the Evening Standard then went on to apply for permission to appeal to the Supreme Court, which was granted on the provision that they pay £85,000 into Court by way of security for costs. It was also a condition that they will not be able to seek the costs of the appeal.

Simply because the Supreme Court has granted permission to appeal does not mean that the Court of Appeal’s decision will be overturned. The case is something to watch, for us lawyers it should help to clarify the law and for defendants it may result in the lowering of the serious harm test.

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