Lachaux v Independent Print Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Sumption,Lord Kerr,Lord Wilson,Lord Hodge,Lord Briggs |
| Judgment Date | 12 June 2019 |
| Neutral Citation | [2019] UKSC 27 |
| Court | Supreme Court |
| Date | 12 June 2019 |
[2019] UKSC 27
Lord Kerr
Lord Wilson
Lord Sumption
Lord Hodge
Lord Briggs
Appellants
David Price QC
Jonathan Price
(Instructed by David Price, Solicitor Advocate)
Respondent
Adrienne Page QC
Godwin Busuttil
(Instructed by Taylor Hampton)
Intervener (Media Lawyers Association)
Guy Vassall-Adams QC
Romana Canneti
Edward Craven
( written submissions only)
Appellants:-
(1) Independent Print Ltd
(2) Evening Standard Ltd
Heard on 13 and 14 November 2018
( with whom Lord Kerr, Lord Wilson, Lord Hodge and Lord Briggs agree)
The tort of defamation is an ancient construct of the common law. It has accumulated, over the centuries, a number of formal rules with no analogue in other branches of the law of tort. Most of them originated well before freedom of expression acquired the prominent place in our jurisprudence that it enjoys today. Its coherence has not been improved by attempts at statutory reform. Statutes to amend the law of defamation were enacted in 1888, 1952, 1996 and 2013, each of which sought to modify existing common law rules piecemeal, without always attending to the impact of the changes on the rest of the law. The Defamation Act 2013 is the latest chapter in this history. Broadly speaking, it seeks to modify some of the common law rules which were seen unduly to favour the protection of reputation at the expense of freedom of expression. In particular, there had been criticism of a state of the law in which persons resident outside the United Kingdom with only a very limited reputation in the United Kingdom were able to sue here for defamation and obtain substantial damages. One of the principal provisions of the new Act was section 1, which provided that a statement was not to be regarded as defamatory unless it had caused or was likely to cause “serious harm” to the claimant's reputation.
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.
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 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.
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.
For present purposes a working definition of what makes a statement defamatory, derived from the speech of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237, 1240, is that “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally.” Like other formulations in the authorities, this turns on the supposed impact of the statement on those to whom it is communicated. But that impact falls to be ascertained in accordance with a number of more or less artificial rules. First, the meaning is not that which other people may actually have attached to it, but that which is derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it. Secondly, in an action for defamation actionable per se, damage to the claimant's reputation is presumed rather than proved. It depends on the inherently injurious character (or “tendency”, in the time-honoured phrase) of a statement bearing that meaning. Thirdly, the presumption is one of law, and irrebuttable.
In two important cases decided in the decade before the Defamation Act 2013, the courts added a further requirement, namely that the damage to reputation in a case actionable per se must pass a minimum threshold of seriousness.
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...
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Table of Cases
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