Libels, damned libels and statistics10th September 2015
The number of defamation claims is unexpectedly up, but it will take time for the impact of the new law to be judged
Could it be that suing for defamation is back in fashion? Despite predictions that the Defamation Act 2013 would lead to a decrease in the number of claims, statistics now show a whopping 60 per cent increase in the number of defamation claims issued in London in 2014 compared to the year before.
We shouldn’t get too excited though — the average number of defamation claims in the past 15 years has been 228, from a low of 128 in 2002 to a high of 298 in 2009. Over the past five years, defamation cases represented 3-4 per cent of the total number of claims issued in the Queen’s Bench Division in London. With such a small sample, statistics tend to jump about. A few claims more or less will skew the percentages dramatically.
The Defamation Act 2013 was supposed to make it more difficult for those who felt that they had been defamed to bring a successful claim against a newspaper, magazine or online publication by requiring claimants to prove that publication “has caused or is likely to cause serious harm” to their reputation. Yet realistically, it is too early to tell whether these statistics tell the whole story simply because, with the one-year limitation period within which defamation claims should be brought, defamation claims heard in 2014 may simply relate back to publications where the old law applies.
In the case of Lachaux v Independent (and others) (July 30, 2015) the claimant, a French national living in Abu Dhabi, had sued The Independent, the Huffington Post and the London Evening Standard over allegations which included that he had been violent towards his former wife and had falsely accused her of kidnapping their baby son.
The court ruled that the claimant must prove as a fact that serious reputational harm has been caused by, or is likely to result in future from, the publication. It is no longer sufficient to show that the publication would have the “tendency” to harm a claimant’s reputation. However, the judgment acknowledged that “serious harm” may be inferred from the gravity of the allegation and the extent of its circulation. With four out of five published articles, the court in Lachaux ruled that the serious harm test had been met. The case continues against all three publishers who will have the opportunity, if they choose, of seeking to prove that the allegations are true, or that publication was a matter of public interest.
This is consistent with the award of £110,000 libel damages earlier in July 2015 to the Russian businessman Vladimir Sloutsker in his claim against a Russian journalist who alleged in an online blog that Sloutsker had taken out a contract to kill her husband.
This was decided under the old law by the same judge, who ruled that the libel was extremely grave, and published to an estimated readership of 60,000 within the jurisdiction of the English court. It would be remarkable if a case that had resulted in a high award of damages under the old law was considered not to meet the test of serious harm under the new law — essentially the position for those bringing defamation claims now under the new law is that they must be able to demonstrate the severity of harm caused.
The Lachaux judgment, however, highlights another dilemma for defamation claimants under the new law in that “a cause of action may lie inchoate until serious harm is caused or its future occurrence becomes probable”. The judge ruled that the test should be applied “at the time the issue is determined” by the court, rather than at the date of publication or when proceedings were issued.
So a claimant who takes prompt action to mitigate the risk of harm may find that the court decides, perhaps following the publication of a retraction and apology, that the test of serious harm is not met at the time of trial. This uncertainty, where the validity of a claim may depend on events outside the claimant’s control, may well result in fewer claims in the future.
On the other hand, a claimant who waits to assess the effect of the publication will need to be mindful of the one-year limitation rule, since the cause of action is to be “treated as having accrued” on the date of first publication. If evidence of serious harm only becomes apparent more than 12 months later, for example if a job application is then rejected or a bank loan refused, the claimant would then need to rely on the court exercising its discretion to disapply the time bar.
Andrew Stephenson is a consultant solicitor at Hamlins LLP, who acted for Vladimir Sloutsker