Defamation – presumption of damage after 2013 Act
The claimant said that the defendant had published defamatory statements which were part of a campaign of defamation brought by his former wife. The court now considered the requirement for substantiality in the 2013 Act.
Held: The defendant’s appeal failed: ‘, the gravity of the imputations derived from the published statements is obvious: and a clear inference is to be drawn that serious harm to the reputation of the claimant has been caused.’
The broad intention was to ‘build on’ cases such as Thornton and Jameel and to ‘raise the bar’ for bringing a claim in defamation. Ultimately the question arising on this appeal, insofar as it relates to the meaning of s.1(1) of the 2013 Act as enacted, is as to just how far the bar has been so raised. The interpretation of the judge at first instance would leave the section having no particular effect on the law: ‘the presumption of damage in libel cases (itself no doubt founded on policy grounds as much as on empirical grounds) fits with the notion that what ordinarily causes the reputational harm is precisely the fact of the publication to others. It is at that stage that the harm to reputation will have occurred: even if there may also subsequently be (although not necessarily so) consequential damage.’
‘A presumption, whether rebuttable or irrebuttable, arises before and irrespective of consideration of the evidence. An inference arises after and in consequence of consideration of the evidence. Thus at law, in cases of libel (and some cases of slander) there is a presumption of damage: which presumption has in my view, as will be gathered, not of itself been displaced by the 2013 Act. But there is no presumption, at law, of serious damage in a libel case. Accordingly that, under s.1(1), has to be proved. The point nevertheless remains that serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning. ‘
Davis LJ summarised: ‘(1) Section 1(1) of the 2013 Act has the effect of giving statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness: no less, no more but equally no more, no less. Thornton has thus itself been superseded by statute.
(2) The common law presumption as to damage in cases of libel, the common law principle that the cause of action accrues on the date of publication, the established position as to limitation and the common law objective single meaning rule are all unaffected by s.1 (1).
(3) If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.
(4) Courts should ordinarily be slow to direct a preliminary issue, involving substantial evidence, on a dispute as to whether serious reputational harm has been caused or is likely to be caused by the published statement.
(5) A defendant disputing the existence of serious harm may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application: the Jameel jurisdiction continuing to be available after the 2013 Act as before (albeit in reality likely only relatively rarely to be appropriately used).
(6) All interlocutory process in such cases should be sought to be managed in a way that is proportionate and cost-effective and actively promotes the overriding objective.
(7) Finally, it may be that in some respects the position with regard to bodies trading for profit, under s.1(2), will be different. I say nothing about that subsection which clearly is designed to operate in a way rather different from s.1(1).’
McFarlane, Davis, Sharp LJJ
[2017] EWCA Civ 1334, [2018] EMLR 1, [2018] 2 WLR 387, [2018] QB 594
Bailii
Defamation Act 2013 1(1)
England and Wales
Citing:
See Also – Lachaux v Independent Print Ltd (2) CA 12-Sep-2017
The court was asked whether the defendants and their solicitors may retain and make use of information contained in documents which are said by the claimant to be confidential and the subject of legal professional privilege . .
Cited – Dow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
Cited – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
Cited – Cammish v Hughes CA 12-Dec-2012
Arden LJ summarised the law as regard abuse of process claims in defamation cases, saying that while the court must provide a remedy in a case that requires one, the process of the court should not be used in a case where the need has gone away. . .
Cited – Ames and Another v The Spamhaus Project Ltd and Another QBD 27-Jan-2015
Warby J said: ‘ . . but as practitioners in this field are well aware, it is generally impractical for a claimant to seek out witnesses to say that they read the words complained of and thought the worse of the claimant’ . .
Cited – In re Harris Simons Construction Limited ChD 1989
The section gives the court jurisdiction to make an administration order if it ‘(a) is satisfied that a company is or is likely to become unable to pay its debts’ and ‘(b) considers that the making of an order . . would be likely to achieve’ one or . .
Cited – Cream Holdings Limited and others v Banerjee and others HL 14-Oct-2004
On her dismissal from the claimant company, Ms Banerjee took confidential papers revealing misconduct to the local newspaper, which published some. The claimant sought an injunction to prevent any further publication. The defendants argued that the . .
See Also – Lachaux v Independent Print Ltd QBD 1-Apr-2015
The claimant alleged defamation by the three defendant news organisations. The defendants now sought trial of certain preliminary issues, and particularly whether the claimant had suffered any serious harm to his reputation.
Held: The court . .
Cited – Andre v Price QBD 11-Oct-2010
The word ‘calculated’ as used in s.2 of the 1952 Act meant ‘likely’: accepting that, in that context, that meant something less than ‘more likely than not’. . .
See Also – Lachaux v Independent Print Ltd and Others QBD 29-Jun-2015
Orders allowing extension of time for service of the Particulars of Claim. . .
Appeal from – Lachaux v Independent Print Ltd QBD 30-Jul-2015
The claimant brought defamation claims as to articles making allegations said to imply that the claimant had mistreated his wife. The defendant contended that, while inferences might sometimes suffice, s.1 (1) nevertheless required a claimant to . .
Cited – Grappelli v Derek Block (Holdings) Ltd CA 20-Jan-1981
Stephane Grappelli, an renowned musician, employed the defendants to promote him. They purported to arrange various concerts, but did so without his authority. When they were cancelled, they told the venue owners that they were cancelled because the . .
Part criticised – Cooke and Another v MGN Ltd and Another QBD 13-Aug-2014
The claimants made a television programme about the lives of people on benefits. The defendant published an article critical of many, and included a statement ‘Three more homes in the road where residents claim they have been portrayed as scroungers . .
Cited – Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co HL 1903
A coalmine owner claimed statutory compensation against a water undertaking which had, under its statutory authority, prevented him mining his coal over a period during which the price of coal had risen. The House was asked whether the coal should . .
Cited – Jeynes v News Magazines Ltd and Another CA 31-Jan-2008
Whether Statement defamatory at common law
The claimant appealed against a striking out of her claim for defamation on finding that the words did not have the defamatory meaning complained of, namely that she was transgendered or transsexual.
Held: The appeal failed.
Sir Anthony . .
Approved – Theedom v Nourish Training (T/A Recruitment Colin Sewell) QBD 11-Dec-2015
The Court heard preliminary issues both as to the defamatory meaning of the words used and as to whether publication of those words had caused or was likely to cause serious harm pursuant to s.1 (1) of the 2013 Act.
Held: Following Cooke and . .
Still Good Law – Dingle v Associated Newspapers HL 1964
The plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under the Parliamentary Papers Act 1840. At . .
See Also – Lachaux v Independent Print Ltd QBD 11-Mar-2015
Judgment as to meaning of certain of the phrases founding the defamation action.
Held: 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’ . .
See Also – Lachaux v Independent Print Ltd/ Evening Standard Ltd QBD 18-Dec-2015
In each of these libel actions the Claimant applied for an order for the delivery up of documents which he claimed were the subject of legal professional privilege but which have been obtained by the Defendants from his former wife, Ms Lachaux, in . .
Cited by:
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
See Also – Lachaux v Independent Print Ltd (2) CA 12-Sep-2017
The court was asked whether the defendants and their solicitors may retain and make use of information contained in documents which are said by the claimant to be confidential and the subject of legal professional privilege . .
Appeal from – Lachaux v Independent Print Ltd and Another SC 12-Jun-2019
Need to Show Damage Increased by 2013 Act
The claimant alleged defamation by three publishers. The articles were held to have defamatory meaning, but the papers argued that the defamations did not reach the threshold of seriousness in section 1(1) of the 2013 Act.
Held: Section 1 of . .
Lists of cited by and citing cases may be incomplete.
Defamation
Updated: 11 November 2021; Ref: scu.594990
