Defamation: Supreme Court hears case on 'serious harm' test

Under the Defamation Act 2013, people must demonstrate that the publication of a statement has caused or is likely to cause serious harm to their reputation to bring a claim for defamation against the publisher.

What constitutes 'serious harm' has been considered by the High Court and Court of Appeal since the Act came into force, and the test has now come before the Supreme Court for consideration.

The Supreme Court will hear arguments on the issue on 13 and 14 November in a case involving articles published about aerospace engineer Bruno Lachaux. It granted Independent Print Limited, which is the publisher of the Independent newspaper and its sister publication the 'i', and the Evening Standard, permission to appeal against a 2017 ruling by the Court of Appeal earlier this year.

The case concerns articles published by the Independent, the 'i', the Huffington Post and the London Evening Standard, which reported allegations of domestic violence and kidnap made against Lachaux by his ex-wife.

Faced with claims of defamation, the publishers applied to the High Court seeking an order for a trial of preliminary issues, including whether the publications caused or were likely to cause serious harm to the reputation of Lachaux.

In July 2015, Mr Justice Warby in the High Court found that the allegations made would cause serious harm to Lachaux's reputation. That decision was appealed by the publishers to the Court of Appeal and in September 2017, the Court of Appeal held that while Mr Justice Warby had reached the correct outcome on the preliminary issue, it disagreed on various aspects of his approach to the interpretation of the serious harm test under the Act. 

In October 2017, Independent Print and the Evening Standard applied to the Supreme Court for permission to appeal.  This was granted on the condition that the publishers provide security for Lachaux's costs, and they were prohibited from seeking to recover their own costs of the appeal. 

During the two-day hearings the Supreme Court will consider the proper interpretation of the serious harm test in section 1(1) of the Defamation Act 2013, the circumstances in which serious harm can be inferred in the absence of evidence of harm, and the applicability of the common law repetition rule and case law excluding the admissibility of publications to similar effect.

"It is anticipated that the Supreme Court will focus on the proper interpretation of the 'serious harm' test and that its findings will inform the conclusions to the other questions," said defamation law expert Alex Keenlyside of Pinsent Masons, the law firm behind Out-Law.com.

No date has yet been set for the Supreme Court to hand down its ruling in the case.