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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 (12 June 2019) URL: http://www.bailii.org/uk/cases/UKSC/2019/27.html Cite as: [2019] 3 WLR 18, [2020] AC 612, [2019] EMLR 22, [2019] UKSC 27, [2019] 4 All ER 485 |
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[2019] UKSC 27
On appeal from: [2017] EWCA Civ 1334
JUDGMENT
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before
Lord Kerr Lord Wilson Lord Sumption Lord Hodge Lord Briggs
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JUDGMENT GIVEN ON |
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12 June 2019 |
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Heard on 13 and 14 November 2018 |
Appellants |
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Respondent |
David Price QC |
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Adrienne Page QC |
Jonathan Price |
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Godwin Busuttil |
(Instructed by David Price, Solicitor Advocate) |
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(Instructed by Taylor Hampton) |
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Intervener (Media Lawyers Association) |
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Guy Vassall-Adams QC |
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Romana Canneti |
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Edward Craven |
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(written submissions only) |
Appellants:-
(1) Independent Print Ltd
(2) Evening Standard Ltd
LORD SUMPTION: (with whom Lord Kerr, Lord Wilson, Lord Hodge and Lord Briggs agree)
Introduction
2.
The claimant, Bruno Lachaux,
is a French aerospace engineer who at the
relevant time lived with his British wife Afsana in the United Arab Emirates.
The marriage broke down, and in April 2011 he began divorce proceedings in the
UAE courts and sought custody of their son Louis. In March 2012, Afsana went
into hiding with Louis in the UAE, claiming that she would not get a fair trial
in its courts. In August 2012, the UAE court awarded custody of Louis to his
father. In February 2013, Mr
Lachaux
initiated a criminal prosecution against
Afsana for abduction. In October of that year, having found out where Louis
was, he took possession of him under the custody order. In January and February
2014, a number of British newspapers published articles making allegations
about Mr
Lachaux’s
conduct towards Afsana during the marriage and in the course
of the divorce and custody proceedings. These appeals arise out of two libel
actions begun by him in the High Court on 2 December 2014 against the
publishers of the Independent and the Evening Standard, and a
third begun on 23 January 2015 against the publisher of the i. Other
libel actions were begun against the publisher of similar articles in another
online newspaper, but we are not directly concerned with them on these appeals.
3.
In February 2015, Eady J conducted a meaning hearing. In a reserved
judgment, he held that the article in the Independent bore eight
defamatory meanings, and the article in the Evening Standard 12. In
summary, the articles were held to have meant (inter alia) that Mr Lachaux
had
been violent and abusive towards his wife during their marriage, had hidden
Louis’ passport to stop her removing him from the UAE, had made use of UAE law
and the UAE courts to deprive her of custody and contact with her son, had
callously and without justification taken Louis out of her possession, and then
falsely accused her of abducting him. For the purpose of the trial of the issue
before of serious harm, which took place before Warby J in July 2015, the
newspapers did not contest the primary facts set out in Mr
Lachaux’s
Particulars of Claim. Their case was that the statements in the articles were
not defamatory because they did not meet the threshold of seriousness in
section 1(1) of the Act of 2013. To appreciate the force of this point, it is
necessary to summarise some well-established features of the common law relating
to damage to reputation.
The common law background
4. The law distinguishes between defamation actionable per se and defamation actionable only on proof of special damage. But although sharing a common label, these are very different torts with distinct historical origins. Libel, which is always actionable per se, originated in the disciplinary jurisdiction of the ecclesiastical courts and the criminal jurisdiction of the Court of Star Chamber. The gist of the tort is injury to the claimant’s reputation and the associated injury to his or her feelings. Defamation actionable per se comprised, in addition to all libels, four categories of slander which were assimilated to libel on account of their particular propensity to injure the reputation of the claimant. These categories were (i) words imputing criminal offences, (ii) words imputing certain contagious or infectious diseases, and (iii) words tending to injure a person in his or her office, calling, trade or profession. The Slander of Women Act 1891 added (iv) words imputing unchastity to a woman. In these cases, the law presumes injury to the claimant’s reputation and awards general damages in respect of it. These are not merely compensatory, but serve to vindicate the claimant’s reputation. In a frequently quoted passage of his speech in Broome v Cassell & Co Ltd [1972] AC 1027, 1071, Lord Hailsham LC acknowledged that this
“… may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge ...”
Special damage, ie pecuniary loss caused by the publication, may be recovered in addition, but must be proved.
5. By comparison, slander which is not actionable per se originated as a common law action on the case, and is governed by principles much closer to those of the law of tort generally. The law does not presume injury to reputation by mere oral statements and treats injury to feelings as insufficient to found a cause of action. Special damage, representing pecuniary loss rather than injury to reputation, must be proved: see McGregor on Damages, 20th ed (2017), paras 46.002, 46.003; Gatley on Libel and Slander, 12th ed (2013), para 5.2. The interest which the law protects in cases where a defamatory statement is actionable per se differs from that which it protects in other cases. The gist of the tort where the statement is not actionable per se is not injury to reputation but, as Bowen LJ observed in Ratcliffe v Evans [1892] 2 QB 524, 532, wrongfully inflicted pecuniary loss: cf Jones v Jones [1916] 2 AC 481, 490 (Viscount Haldane). Indeed, it is an open question, which has given rise to conflicting dicta, whether general damage is recoverable at all in such cases.
8. The first was Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. The Saudi claimant had sued the publishers of the Wall Street Journal for a statement published online in Brussels to the effect that he had been funding terrorism. The statement was shown to have reached just five people in England and Wales. The Court of Appeal rejected a submission that the conclusive presumption of general damage was incompatible with article 10 of the Human Rights Convention. Lord Phillips of Worth Matravers MR, delivering the leading judgment, observed (para 37) that “English law has been well served by a principle under which liability turns on the objective question of whether the publication is one which tends to injure the claimant’s reputation.” But he held that the presumption could not be applied consistently with the Convention in those cases, said to be rare, where damage was shown to be so trivial that the interference with freedom of expression could not be said to be necessary for the protection of the claimant’s reputation. The appropriate course in such a case was to strike out the claim, not on the ground that it failed to disclose a cause of action, but as an abuse of process. The Court of Appeal held that it was an abuse of process for the action before them to proceed “where so little is now seen to be at stake”, and duly struck it out. The effect of this decision was to introduce a procedural threshold of seriousness to be applied to the damage to the claimant’s reputation. Two things are clear from the language of Lord Phillips’ judgment. One is that the threshold was low. The damage must be more than minimal. That is all. Secondly, the Court of Appeal must have thought that the operation of the threshold might depend, as it did in the case before them, on the evidence of actual damage and not just on the inherently injurious character of the statement in question.
9. The second case was Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, a decision of Tugendhat J. It arose out of an application by the Defendant newspaper to strike out part of the Particulars of Claim in a libel action on the ground that the statement complained of was incapable of being defamatory. Allowing the application, Tugendhat J held that in addition to the procedural threshold recognised in Jameel, there was a substantive threshold of seriousness to be surmounted before a statement could be regarded as meeting the legal definition of “defamatory”. The judge’s definition (para 96) was that a statement “may be defamatory of him because it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do” (the emphasis is the judge’s). He derived this formula from dicta of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237. At para 94, he dealt with the relationship between the definition thus arrived at and the presumption of general damage, in terms which suggested that (unlike the Jameel test) the application of the threshold depended on the inherent propensity of the words to injure the claimant’s reputation:
“If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant. The Court of Appeal in Jameel (Yousef)’s case [2005] QB 946 declined to find that the presumption of damage was itself in conflict with article 10 (see para 37), but recognised that if in fact there was no or minimal actual damage an action for defamation could constitute an interference with freedom of expression which was not necessary for the protection of the claimant’s reputation: see para 40.”
Section 1 of the Defamation Act 2013
10. Section 1 is in the following terms:
“1 Serious harm
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”
11.
On the present appeals, the rival constructions of this provision may be
summarised as follows. The case on behalf of Mr Lachaux
is that the Act leaves
unaffected the common law presumption of general damage and the associated rule
that the cause of action is made out if the statement complained of is
inherently injurious or, as Lord Phillips put it in Jameel and Tugendhat
J in Thornton, it has a “tendency” to injure the claimant’s reputation.
The effect of the provision on this view of the matter is simply that the
inherent tendency of the words must be to cause not just some damage to
reputation but serious harm to it. The defendant publishers dispute this. Their
case is that the provision introduces an additional condition to be satisfied
before the statement can be regarded as defamatory, on top of the requirement
that the words must be inherently injurious. It must also be shown to produce
serious harm in fact. They submit that unless it was self-evident that such a
statement must produce serious harm to reputation, this would have to be
established by extraneous evidence. Warby J, after a careful analysis of the
Act and the antecedent common law, substantially accepted the defendant
publishers’ case on the law. But he found, on the facts, that the relevant
newspaper articles did cause serious harm to Mr
Lachaux.
The Court of Appeal
(McFarlane, Davis and Sharp LJJ) [2018] QB 594, preferred Mr
Lachaux’s
construction of section 1, but they upheld the judge’s finding of serious harm.
13. In the first place, the relevant background to section 1 is the common law position, as I have summarised it. Parliament is taken to have known what the law was prior to the enactment. It must therefore be taken to have known about the decisions in Jameel (Yousef) and Thornton and the basic principles on which general damages were awarded for defamation actionable per se. There is a presumption that a statute does not alter the common law unless it so provides, either expressly or by necessary implication. But this is not an authority to give an enactment a strained interpretation. It means only that the common law should not be taken to have been altered casually, or as a side-effect of provisions directed to something else. The Defamation Act 2013 unquestionably does amend the common law to some degree. Its preamble proclaims the fact (“an act to amend the law of defamation”). It is not disputed that there is a common law presumption of damage to reputation, but no presumption that it is “serious”. So the least that section 1 achieved was to introduce a new threshold of serious harm which did not previously exist. The question on these appeals is what are the legal implications of that change, and what necessarily follows from it. Even where some change to the common law was intended, it should not go any further than that. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 615, Parliament “can be presumed not to have altered the common law further than was necessary”.
14.
Secondly, section 1 necessarily means that a statement which would
previously have been regarded as defamatory, because of its inherent tendency
to cause some harm to reputation, is not to be so regarded unless it “has
caused or is likely to cause” harm which is “serious”. The reference to a
situation where the statement “has caused” serious harm is to the consequences
of the publication, and not the publication itself. It points to some historic
harm, which is shown to have actually occurred. This is a proposition of fact
which can be established only by reference to the impact which the statement is
shown actually to have had. It depends on a combination of the inherent
tendency of the words and their actual impact on those to whom they were
communicated. The same must be true of the reference to harm which is “likely”
to be caused. In this context, the phrase naturally refers to probable future
harm. Ms Page QC, who argued Mr Lachaux’s
case with conspicuous skill and
learning, challenged this. She submitted that “likely to cause” was a synonym
for the inherent tendency which gives rise to the presumption of damage at
common law. It meant, she said, harm which was liable to be caused given
the tendency of the words. That argument was accepted in the Court of Appeal.
She also submitted, by way of alternative, that if the phrase referred to the
factual probabilities, it must have been directed to applications for
pre-publication injunctions quia timet. Both of these suggestions seem to me to
be rather artificial in a context which indicates that both past and future
harm are being treated on the same footing, as functional equivalents. If past
harm may be established as a fact, the legislator must have assumed that
“likely” harm could be also. As to pre-publication injunctions, the section is
designed to import a condition to be satisfied if the statement is to be
regarded as defamatory at all. It is not concerned with the remedies available
for defamation, whether interlocutory or final. It is right to add that pre-publication
injunctions are extremely rare, because of the well-established constraints on
judicial remedies which restrict freedom of expression in advance of
publication.
20.
The Court of Appeal’s analysis not only gives little or no effect to the
language of section 1. It is to my mind internally contradictory. Davis LJ, who
delivered the only reasoned judgment, accepted the submission on behalf of Mr
Lachaux
that the seriousness of the harm caused to the claimant’s reputation by
the publication depended on the inherent tendency of the words. But he appears
to have thought (paras 70-73) that where this was “serious”, the result was to
set up an inference of fact, which it was open to the defendant to rebut by
evidence. As Ms Page accepted, this will not do. The common law rule was that
damage to reputation was presumed, not proved, and that the presumption was
irrebuttable. If the common law rule survives, then there is no scope for
evidence of the actual impact of the publication. That is the main reason why
in my opinion it cannot survive. Davis LJ has, with respect, accepted the legal
analysis advanced on behalf of Mr
Lachaux,
while attaching to it the
consequences of the legal analysis advanced on behalf of the newspapers. In my
opinion, Warby J’s analysis of the law was coherent and correct, for
substantially the reasons which he gave.
Application to this case
21.
On the footing that (as I would hold) Mr Lachaux
must demonstrate as a
fact that the harm caused by the publications complained of was serious, Warby
J held that it was. He heard evidence from Mr
Lachaux
himself and three other
witnesses of fact, and received written evidence from his solicitor. He also
received agreed figures, some of them estimates, of the print runs and
estimated readership of the publications complained of and the user numbers for
online publications. He based his finding of serious harm on (i) the scale of
the publications; (ii) the fact that the statements complained of had come to
the attention of at least one identifiable person in the United Kingdom who
knew Mr
Lachaux
and (iii) that they were likely to have come to the attention
of others who either knew him or would come to know him in future; and (iv) the
gravity of the statements themselves, according to the meaning attributed to
them by Sir David Eady. Mr
Lachaux
would have been entitled to produce evidence
from those who had read the statements about its impact on them. But I do not
accept, any more than the judge did, that his case must necessarily fail for
want of such evidence. 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.
22.
It was submitted on behalf of the defendant newspapers that there were
errors of principle in the judge’s treatment of the facts. It was said that the
injury to Mr Lachaux’s
reputation was at least in part the result of artificial
legal rules, notably the “repetition rule” which treats as defamatory the
reporting, even without endorsement, of another person’s statement; and the Dingle
rule (see Associated Newspapers Ltd v Dingle [1964] AC 371) that a
defendant cannot rely in mitigation of damages on the fact that similar
defamatory statements have been published about the same claimant by other
persons. The argument was that while these rules of law are well established,
they do not affect the factual inquiry required by section 1, namely whether
the harm caused by a particular publication was serious. It was also said that
the judge should not have taken account of the damage that Mr
Lachaux’s
reputation might suffer in the eyes of people who might get to know him in
future. Warby J must have rejected all of these submissions, and the Court of
Appeal agreed with him. So do I.
25.
Turning, finally, to the complaint about the impact of the publications
on those who did not know Mr Lachaux but might get to know him in future, there
is no principled reason why an assessment of the harm to the claimant’s
reputation should not take account of the impact of the publications on those
who had never heard of him at the time. The claimant’s reputation is harmed at
the time of publication notwithstanding that the reader or hearer knows nothing
about him other than what the publication tells him. It cannot make any
difference that it is only later, when he comes to know the claimant personally,
that the latter’s diminished reputation is of any personal interest to him.
Disposal