JUDGMENT
Lachaux (Respondent) v Independent Print Ltd and
another (Appellants)
before
Lord Kerr
Lord Wilson
Lord Sumption
Lord Hodge
Lord Briggs
JUDGMENT GIVEN ON
12 June 2019
Heard on 13 and 14 November 2018
Appellants Respondent
David Price QC Adrienne Page QC
Jonathan Price Godwin Busuttil
(Instructed by David
Price, Solicitor Advocate)
(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
Page 2
LORD SUMPTION: (with whom Lord Kerr, Lord Wilson, Lord Hodge and
Lord Briggs agree)
Introduction
1. 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.
2. 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.
Page 3
3. 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 common law background
4. 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 …”
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Special damage, ie pecuniary loss caused by the publication, may be recovered in
addition, but must be proved.
5. 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.
6. 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 rightthinking 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.
7. 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.
8. 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
Page 5
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 abuse of process. The Court of Appeal held that
it was an abuse of process for the action before them to proceed “where so little is
now seen to be at stake”, and duly struck it out. The effect of this decision was to
introduce a procedural threshold of seriousness to be applied to the damage to the
claimant’s reputation. Two things are clear from the language of Lord Phillips’
judgment. One is that the threshold was low. The damage must be more than
minimal. That is all. Secondly, the Court of Appeal must have thought that the
operation of the threshold might depend, as it did in the case before them, on the
evidence of actual damage and not just on the inherently injurious character of the
statement in question.
9. The second case was Thornton v Telegraph Media Group Ltd [2011] 1 WLR
1985, a decision of Tugendhat J. It arose out of an application by the Defendant
newspaper to strike out part of the Particulars of Claim in a libel action on the ground
that the statement complained of was incapable of being defamatory. Allowing the
application, Tugendhat J held that in addition to the procedural threshold recognised
in Jameel, there was a substantive threshold of seriousness to be surmounted before
a statement could be regarded as meeting the legal definition of “defamatory”. The
judge’s definition (para 96) was that a statement “may be defamatory of him because
it substantially affects in an adverse manner the attitude of other people towards
him, or has a tendency so to do” (the emphasis is the judge’s). He derived this
formula from dicta of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237. At para
94, he dealt with the relationship between the definition thus arrived at and the
presumption of general damage, in terms which suggested that (unlike the Jameel
test) the application of the threshold depended on the inherent propensity of the
words to injure the claimant’s reputation:
“If the likelihood of adverse consequences for a claimant is part
of the definition of what is defamatory, then the presumption
of damage is the logical corollary of what is already included
in the definition. And conversely, the fact that in law damage
is presumed is itself an argument why an imputation should not
be held to be defamatory unless it has a tendency to have
adverse effects upon the claimant. It is difficult to justify why
there should be a presumption of damage if words can be
defamatory while having no likely adverse consequence for the
claimant. The Court of Appeal in Jameel (Yousef)’s case [2005]
QB 946 declined to find that the presumption of damage was
Page 6
itself in conflict with article 10 (see para 37), but recognised
that if in fact there was no or minimal actual damage an action
for defamation could constitute an interference with freedom
of expression which was not necessary for the protection of the
claimant’s reputation: see para 40.”
Section 1 of the Defamation Act 2013
10. Section 1 is in the following terms:
“1 Serious harm
(1) A statement is not defamatory unless its
publication has caused or is likely to cause serious harm
to the reputation of the claimant.
(2) For the purposes of this section, harm to the
reputation of a body that trades for profit is not ‘serious
harm’ unless it has caused or is likely to cause the body
serious financial loss.”
11. On the present appeals, the rival constructions of this provision may be
summarised as follows. The case on behalf of Mr Lachaux is that the Act leaves
unaffected the common law presumption of general damage and the associated rule
that the cause of action is made out if the statement complained of is inherently
injurious or, as Lord Phillips put it in Jameel and Tugendhat J in Thornton, it has a
“tendency” to injure the claimant’s reputation. The effect of the provision on this
view of the matter is simply that the inherent tendency of the words must be to cause
not just some damage to reputation but serious harm to it. The defendant publishers
dispute this. Their case is that the provision introduces an additional condition to be
satisfied before the statement can be regarded as defamatory, on top of the
requirement that the words must be inherently injurious. It must also be shown to
produce serious harm in fact. They submit that unless it was self-evident that such a
statement must produce serious harm to reputation, this would have to be established
by extraneous evidence. Warby J, after a careful analysis of the Act and the
antecedent common law, substantially accepted the defendant publishers’ case on
the law. But he found, on the facts, that the relevant newspaper articles did cause
serious harm to Mr Lachaux. The Court of Appeal (McFarlane, Davis and Sharp
LJJ) [2018] QB 594, preferred Mr Lachaux’s construction of section 1, but they
upheld the judge’s finding of serious harm.
Page 7
12. Although the Act must be construed as a whole, the issue must turn primarily
on the language of section 1. This shows, very clearly to my mind, that it not only
raises the threshold of seriousness above that envisaged in Jameel (Yousef) and
Thornton, but requires its application to be determined by reference to the actual
facts about its impact and not just to the meaning of the words.
13. In the first place, the relevant background to section 1 is the common law
position, as I have summarised it. Parliament is taken to have known what the law
was prior to the enactment. It must therefore be taken to have known about the
decisions in Jameel (Yousef) and Thornton and the basic principles on which general
damages were awarded for defamation actionable per se. There is a presumption that
a statute does not alter the common law unless it so provides, either expressly or by
necessary implication. But this is not an authority to give an enactment a strained
interpretation. It means only that the common law should not be taken to have been
altered casually, or as a side-effect of provisions directed to something else. The
Defamation Act 2013 unquestionably does amend the common law to some degree.
Its preamble proclaims the fact (“an act to amend the law of defamation”). It is not
disputed that there is a common law presumption of damage to reputation, but no
presumption that it is “serious”. So the least that section 1 achieved was to introduce
a new threshold of serious harm which did not previously exist. The question on
these appeals is what are the legal implications of that change, and what necessarily
follows from it. Even where some change to the common law was intended, it should
not go any further than that. As Lord Reid observed in Black-Clawson International
Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 615, Parliament
“can be presumed not to have altered the common law further than was necessary”.
14. Secondly, section 1 necessarily means that a statement which would
previously have been regarded as defamatory, because of its inherent tendency to
cause some harm to reputation, is not to be so regarded unless it “has caused or is
likely to cause” harm which is “serious”. The reference to a situation where the
statement “has caused” serious harm is to the consequences of the publication, and
not the publication itself. It points to some historic harm, which is shown to have
actually occurred. This is a proposition of fact which can be established only by
reference to the impact which the statement is shown actually to have had. It depends
on a combination of the inherent tendency of the words and their actual impact on
those to whom they were communicated. The same must be true of the reference to
harm which is “likely” to be caused. In this context, the phrase naturally refers to
probable future harm. Ms Page QC, who argued Mr Lachaux’s case with
conspicuous skill and learning, challenged this. She submitted that “likely to cause”
was a synonym for the inherent tendency which gives rise to the presumption of
damage at common law. It meant, she said, harm which was liable to be caused
given the tendency of the words. That argument was accepted in the Court of
Appeal. She also submitted, by way of alternative, that if the phrase referred to the
factual probabilities, it must have been directed to applications for pre-publication
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injunctions quia timet. Both of these suggestions seem to me to be rather artificial
in a context which indicates that both past and future harm are being treated on the
same footing, as functional equivalents. If past harm may be established as a fact,
the legislator must have assumed that “likely” harm could be also. As to prepublication injunctions, the section is designed to import a condition to be satisfied
if the statement is to be regarded as defamatory at all. It is not concerned with the
remedies available for defamation, whether interlocutory or final. It is right to add
that pre-publication injunctions are extremely rare, because of the well-established
constraints on judicial remedies which restrict freedom of expression in advance of
publication.
15. Thirdly, it is necessary to read section 1(1) with section 1(2). Section 1(2) is
concerned with the way in which section 1(1) is to be applied to statements said to
be defamatory of a body trading for profit. It refers to the same concept of “serious
harm” as section 1(1), but provides that in the case of such a body it must have
caused or be likely to cause “serious financial loss”. The financial loss envisaged
here is not the same as special damage, in the sense in which that term is used in the
law of defamation. Section 1 is concerned with harm to reputation, whereas (as I
have pointed out) special damage represents pecuniary loss to interests other than
reputation. What is clear, however, is that section 1(2) must refer not to the harm
done to the claimant’s reputation, but to the loss which that harm has caused or is
likely to cause. The financial loss is the measure of the harm and must exceed the
threshold of seriousness. As applied to harm which the defamatory statement “has
caused”, this necessarily calls for an investigation of the actual impact of the
statement. A given statement said to be defamatory may cause greater or lesser
financial loss to the claimant, depending on his or her particular circumstances and
the reaction of those to whom it is published. Whether that financial loss has
occurred and whether it is “serious” are questions which cannot be answered by
reference only to the inherent tendency of the words. The draftsman must have
intended that the question what harm it was “likely to cause” should be decided on
the same basis.
16. Finally, if serious harm can be demonstrated only by reference to the inherent
tendency of the words, it is difficult to see that any substantial change to the law of
defamation has been achieved by what was evidently intended as a significant
amendment. The main reason why harm which was less than “serious” had given
rise to liability before the Act was that damage to reputation was presumed from the
words alone and might therefore be very different from any damage which could be
established in fact. If, as Ms Page submits, the presumption still works in that way,
then this anomaly has been carried through into the Act. Suppose that the words
amount to a grave allegation against the claimant, but they are published to a small
number of people, or to people none of whom believe it, or possibly to people among
whom the claimant had no reputation to be harmed. The law’s traditional answer is
that these matters may mitigate damages but do not affect the defamatory character
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of the words. Yet it is plain that section 1 was intended to make them part of the test
of the defamatory character of the statement.
17. I agree, as the judge did, that this analysis is inconsistent with the previous
common law governing statements actionable per se. But it is inconsistent with it
only to this extent: that the defamatory character of the statement no longer depends
only on the meaning of the words and their inherent tendency to damage the
claimant’s reputation. To that extent Parliament intended to change the common
law. But I do not accept that the result is a revolution in the law of defamation, any
more than the lower thresholds of seriousness introduced by the decisions in Jameel
and Thornton effected such a revolution. Ms Page argued that to construe section 1
in the way that I have done would transform the way in which the Limitation Act
1980 applies to actions for defamation; and that it would effectively abolish the
distinction between defamation actionable per se and defamation actionable only on
proof of special damage. In both respects, this was said to be inconsistent with other
provisions of the Act, notably sections 8 and 14.
18. Section 8 is concerned with limitation. Section 4A of the Limitation Act 1980
provides for a limitation period in defamation actions of one year from the accrual
of the cause of action. The cause of action is treated at common law as accruing on
publication where it is actionable per se, and on the occurrence of special damage in
other cases. Successive publications therefore give rise at common law to distinct
causes of action. Section 8 of the Defamation Act 2013 provides that where a
statement has been made to the public or a section of the public (for example in a
newspaper) and later republished in the same or substantially the same terms, “any
cause of action against the [same] person for defamation in respect of the subsequent
publication is to be treated as having accrued on the date of the first publication.”
The object of this provision is to deprive claimants of the right to sue on a further
publication by the same person of substantially the same defamatory statement,
more than a year after the first publication. They must sue on the first publication or
run the risk of being time-barred. The argument is that section 8 assumes that the
common law rule that the cause of action accrues on publication subsists, subject
only to the modification that the accrual of the cause of action for a qualifying
second publication is backdated to the date of the first. Therefore, it is said, section
1 must be construed on the footing that the cause of action is complete on publication
and not on some later date at which “serious harm” may occur. One of the problems
of legislating piecemeal for different aspects of the law of defamation, as the Act of
2013 does, is that the interrelation between different rules may be overlooked. I
rather doubt whether Parliament got to grips with the implications of section 1 for
limitation. I would not therefore modify my construction of section 1, which I regard
as clear, even if I agreed with Ms Page that its effect was to postpone the accrual of
the cause of action for defamation actionable per se. But I do not agree with her
about that. It is necessary to distinguish between the damage done to an interest
protected by the law, and facts which are merely evidence of the extent of that
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damage. Where a statement is actionable per se, the interest protected by the law is
the claimant’s reputation. As an element in the cause of action for defamation,
publication does not mean commercial publication, but communication to a reader
or hearer other than the claimant. The impact of the publication on the claimant’s
reputation will in practice occur at that moment in almost all cases, and the cause of
action is then complete. If for some reason it does not occur at that moment, the
subsequent events will be evidence of the likelihood of its occurring. In either case,
subsequent events may serve to demonstrate the seriousness of the statement’s
impact including, in the case of a body trading for profit, its financial implications.
It does not follow that those events must have occurred before the claimant’s cause
of action can be said to have accrued. Their relevance is purely evidential. The
position is different where a statement is not actionable per se, because the interest
protected by the law in that case is purely pecuniary. The pecuniary loss must
therefore have occurred.
19. Section 14 is concerned only with the law of slander. It abolishes two of the
four categories of slander actionable per se, by repealing the Slander of Women Act
1891 which made the imputation of unchastity to a woman actionable per se, and by
providing that an imputation that a person has a contagious or infectious disease is
not to be actionable without proof of special damage. The argument is that since
section 14 abolishes two of the categories of slander actionable per se, section 1
should not be read as abolishing all of them. The fallacy of this argument is that it
assumes that section 1 does abolish all of them. I do not think that it does. To say
that a slander is actionable per se simply means that it is actionable without proof of
special damage. That is still the case for the two surviving special categories of
slander. As I have pointed out above, special damage in this context means damage
representing pecuniary loss, not including damage to reputation. Section 1 is not
concerned with special damage in that sense but with “harm to the reputation of the
claimant”, ie with harm of the kind represented by general damage. It simply
supplements the common law by introducing a new condition that harm of that kind
must be “serious” and in the case of trading bodies that it must result in serious
financial loss.
20. The Court of Appeal’s analysis not only gives little or no effect to the
language of section 1. It is to my mind internally contradictory. Davis LJ, who
delivered the only reasoned judgment, accepted the submission on behalf of Mr
Lachaux that the seriousness of the harm caused to the claimant’s reputation by the
publication depended on the inherent tendency of the words. But he appears to have
thought (paras 70-73) that where this was “serious”, the result was to set up an
inference of fact, which it was open to the defendant to rebut by evidence. As Ms
Page accepted, this will not do. The common law rule was that damage to reputation
was presumed, not proved, and that the presumption was irrebuttable. If the common
law rule survives, then there is no scope for evidence of the actual impact of the
publication. That is the main reason why in my opinion it cannot survive. Davis LJ
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has, with respect, accepted the legal analysis advanced on behalf of Mr Lachaux,
while attaching to it the consequences of the legal analysis advanced on behalf of
the newspapers. In my opinion, Warby J’s analysis of the law was coherent and
correct, for substantially the reasons which he gave.
Application to this case
21. On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact
that the harm caused by the publications complained of was serious, Warby J held
that it was. He heard evidence from Mr Lachaux himself and three other witnesses
of fact, and received written evidence from his solicitor. He also received agreed
figures, some of them estimates, of the print runs and estimated readership of the
publications complained of and the user numbers for online publications. He based
his finding of serious harm on (i) the scale of the publications; (ii) the fact that the
statements complained of had come to the attention of at least one identifiable person
in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have
come to the attention of others who either knew him or would come to know him in
future; and (iv) the gravity of the statements themselves, according to the meaning
attributed to them by Sir David Eady. Mr Lachaux would have been entitled to
produce evidence from those who had read the statements about its impact on them.
But I do not accept, any more than the judge did, that his case must necessarily fail
for want of such evidence. The judge’s finding was based on a combination of the
meaning of the words, the situation of Mr Lachaux, the circumstances of publication
and the inherent probabilities. There is no reason why inferences of fact as to the
seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from
considerations of this kind. Warby J’s task was to evaluate the material before him,
and arrive at a conclusion on an issue on which precision will rarely be possible. A
concurrent assessment of the facts was made by the Court of Appeal. Findings of
this kind would only rarely be disturbed by this court, in the absence of some error
of principle potentially critical to the outcome.
22. It was submitted on behalf of the defendant newspapers that there were errors
of principle in the judge’s treatment of the facts. It was said that the injury to Mr
Lachaux’s reputation was at least in part the result of artificial legal rules, notably
the “repetition rule” which treats as defamatory the reporting, even without
endorsement, of another person’s statement; and the Dingle rule (see Associated
Newspapers Ltd v Dingle [1964] AC 371) that a defendant cannot rely in mitigation
of damages on the fact that similar defamatory statements have been published about
the same claimant by other persons. The argument was that while these rules of law
are well established, they do not affect the factual inquiry required by section 1,
namely whether the harm caused by a particular publication was serious. It was also
said that the judge should not have taken account of the damage that Mr Lachaux’s
reputation might suffer in the eyes of people who might get to know him in future.
Page 12
Warby J must have rejected all of these submissions, and the Court of Appeal agreed
with him. So do I.
23. The repetition rule is a rule governing the meaning of a statement and the
availability of the defence of truth. A statement that someone else has made a
defamatory statement about the claimant, although literally true, is treated as
equivalent to a direct statement to the same effect. The policy is that “repeating
someone else’s libellous statement is just as bad as making the statement directly”:
Lewis v Daily Telegraph [1964] AC 234, 260 (Lord Reid). The rule is nothing to do
with the threshold of seriousness, and nothing in the 2013 Act can be taken as
implicitly abolishing it or limiting its application.
24. The effect of the Dingle rule is to treat evidence of damage to the claimant’s
reputation done by earlier publications of the same matter as legally irrelevant to the
question what damage was done by the particular publication complained of. It has
been criticised, but it is well established. It has the pragmatic advantage of making
it unnecessary to determine which of multiple publications of substantially the same
statement occurred first, something which in the case of a newspaper would often
be impossible to ascertain and might differ from one reader to the next. The practical
impact of the Dingle rule in the modern law is limited by section 12 of the
Defamation Act 1952, which allows a defendant to rely in mitigation of damage on
certain recoveries or prospective recoveries from other parties for words to the same
effect; and by the operation of the Civil Liability (Contribution) Act 1978. Section
1 of the Act is concerned with the threshold of harm and not with the measure or
mitigation of general damage. But both raise a similar question of causation. It
would be irrational to apply the Dingle rule in one context but not the other, and no
one is inviting us to abrogate it. The judge was therefore entitled to apply it.
25. Turning, finally, to the complaint about the impact of the publications on
those who did not know Mr Lachaux but might get to know him in future, there is
no principled reason why an assessment of the harm to the claimant’s reputation
should not take account of the impact of the publications on those who had never
heard of him at the time. The claimant’s reputation is harmed at the time of
publication notwithstanding that the reader or hearer knows nothing about him other
than what the publication tells him. It cannot make any difference that it is only later,
when he comes to know the claimant personally, that the latter’s diminished
reputation is of any personal interest to him.
Disposal
26. For these reasons, while I would state the law differently from the Court of
Appeal, I would dismiss these appeals on the facts.
