Taylor Hampton acted for Bruno Lachaux on 13 and 14 November 2018 in the landmark Supreme Court appeal which will determine how s.1(1) of the Defamation Act 2013 (known as the “serious harm” requirement) is to be interpreted
The Defendants (Independent Print Ltd and Evening Standard Ltd) are appealing against the judgment of the Court of Appeal handed down in September 2017.
The Court of Appeal’s findings were as follows:
- that for the purposes of s.1(1) the words “likely to cause” may be taken to connote a “tendency” to cause;
- the effect of the section was to give statutory status to the test adopted by Tugendhat J in Thornton, but raising the threshold from substantial to serious;
- the common law rules of presumption as to damage, the cause of action accruing on the date of publication, limitation, and single meaning are unaffected by s.1(1);
- if a meaning of a statement is evaluated as seriously defamatory, it will ordinarily then be proper to draw an inference of serious reputational harm. Further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial; and
- the Jameel jurisdiction continues to be available after the 2013 Act.
The Supreme Court has been asked to determine the following issues:
- The proper interpretation of the “serious harm” test in s.1(1);
- The circumstances in which serious harm can be inferred in the absence of evidence of harm;
- The applicability of the common law repetition rule and the rule in Associated Newspapers Ltd v Dingle  AC 371 excluding the admissibility of publications of similar effect.
The Defendants’ case is that s.1(1) requires a claimant to prove that a publication has caused serious harm by adducing evidence of such harm, and that serious harm to reputation should not be inferred unless it is obvious it has occurred. They also argue that the repetition rule and the rule in Dingle v Associated Newspapers Ltd  AC 371 have no application in the context of a determination of serious harm.
The Claimant is seeking largely to uphold the judgment of the Court of Appeal.
Daniel Taylor and Megan O’Boyle of Taylor Hampton are instructed by the Claimant.