Free speech victory or charter for higher costs?

The Supreme Court’s recent clarification of the ‘serious harm’ threshold for defamation claims has been welcomed by newspapers as a victory for free speech. In fact, it is more likely to mean escalating costs and uncertainty for claimants and defendants alike.

On 12 June the Supreme Court handed down judgment in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27. The five Supreme Court justices dismissed the appeal on the facts, but clarified the proper construction of section 1(1) of the Defamation Act 2013, according to which ‘a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant’.

The decision is straightforward. The common law presumption of damage in actions for libel is abolished. Potential claimants must now overcome a new hurdle before a statement can be regarded as defamatory: the words complained of must not only have an inherent tendency to damage but ‘must also be shown to produce serious harm in fact’, which may require extraneous evidence to be submitted.

Commentators have referred to the Supreme Court’s decision as a ‘victory for free speech’, one which ‘will encourage responsible and responsive journalism’. The reasoning behind this claim is clear and goes like this: the bar to bringing a claim has been raised; this will discourage claimants from bringing unworthy claims; unworthy claims will in turn be struck out at an earlier stage; less costs will be incurred by both claimants and defendants. Conversely, newspapers will be encouraged to be more responsive to what are worthy claims, and to recognise and correct their mistakes promptly.

It is argued that this will also assist in reducing what the Joint Committee on the Draft Defamation Bill referred to as the ‘extremely high costs of defamation proceedings’. This criticism must be read against the objections which have historically been raised by the press regarding the ‘chilling effect’ which the costs liability associated with libel proceedings has on free speech.

All’s well that ends well… or is it?

The Supreme Court judgment does restore a safeguard against trivial claims. In practice, however, under common law principles there were already mechanisms to eliminate trivial claims. These claims either failed to meet the threshold of seriousness, such that the words complained of were not considered to be defamatory, or they were characterised as an abuse of process (‘Jameel abuse’). This had been flagged by the then Mark Warby QC in written evidence submitted to the Joint Committee on the Draft Defamation Bill (the same Mark Warby who is now the judge in charge of the Media and Communications List, who gave the first instance judgment in Lachaux, and whose interpretation of section 1(1) was endorsed by the Supreme Court). He made it clear that under the law and practice as it stood before the 2013 act, there was already no real risk of a trivial claim succeeding at (or indeed getting close to) a trial. So in practice, section 1(1) will not have any significant impact in this regard.

The Supreme Court has also made it clear that a court must look at all the circumstances of each case, including the scale of publication, the extent of actual readership in the UK, whether the statements complained of have come or would likely come to the attention of people who know the subject, as well as the gravity of the statements themselves.

For large national newspapers, a serious allegation combined with a circulation certificate and evidence of the number of unique views online attesting to the size of their readership, may easily suffice to overcome the section 1(1) hurdle. So for claims which are brought against those media giants, the new interpretation of section 1(1) will not significantly change the position.

Matters will be different for claims which are brought against newspapers with a smaller circulation or publications on social media, as it will be more difficult to readily draw the same inference which can be drawn against larger newspapers. The obvious consequence of the change will therefore be a corresponding increase in costs.

The risk is that there will be an increase in potentially expensively contested hearings about how a claimant can demonstrate that a particular publication has caused or is likely to cause serious harm to his reputation. This is something that we witnessed in various serious harm preliminary issue trials (including in the first instance judgment in Lachaux itself), all of which showed an undue escalation of evidence and costs.

This is not the first time that reforms of the law of defamation have led to an increase in the cost of litigation. The defamation costs budgeting scheme continues to be onerous, even after years of practice which have allowed courts and practitioners to become more accustomed to its practicalities and requirements. Apart from the offer of amends regime introduced by the Defamation Act 1996, the overall effect of the reforms has generally been to generate more costs and uncertainty for litigants.

More joint thinking is needed between the legislators and libel practitioners. Reforms have in mind the importance of reducing delays and the costs of litigation, and to date they have failed to do so.

The Supreme Court’s judgment is a welcome clarification of the law, but it will mean more costs being incurred in debating and proving serious harm. Adopting HHJ Moloney’s words in Theedom v Nourish Training [2015] EWHC 3769, it would appear that the evidence of harm contemplated by the Supreme Court may ultimately ‘[add] little or nothing to the conclusions that an experienced defamation judge would have drawn simply from reading [the allegations] and considering [the extent of publication]’. More guidance from the High Court, given on a case-by-case basis, will help practitioners know where the battle lines surrounding proof of serious harm to reputation may be drawn.

 Mathilde Groppo is an associate at Carter-Ruck