Lachaux: Supreme Court breathes new life into “serious harm” test


In an important judgment for freedom of expression, the Supreme Court has held that the serious harm test in s.1 of the Defamation Act 2013 has significantly raised the threshold for all defamation claims and requires proof of serious harm to reputation as a matter of fact.

Lord Sumption’s judgment, adopted unanimously by the Court, upholds the legal analysis of Mr Justice Warby in the High Court and rejects the weakened test favoured by the Court of Appeal, which held that all the claimant had to establish was that the publication had a tendency to cause serious harm, which could be assessed by looking solely at the defamatory words. The Supreme Court emphasised that serious harm must be proved as a matter of fact, including by looking at the actual impact of the defamatory words. The Supreme Court also held that s.1(2), which applies to corporate claimants, similarly requires proof of actual or likely financial loss as a matter of fact.

The Media Lawyers Association, which intervened by written submissions in the appeal, argued that the Court of Appeal’s approach was virtually indistinguishable from the previous common law test and inconsistent both with the statutory language and with Parliament’s clear intention to significantly raise the bar for defamation claims.  In upholding these submissions, the Supreme Court has significantly strengthened this provision which was one of the key new protections for publishers in the 2013 Act. However, the Supreme Court dismissed the defendant’s appeal on the facts, holding that the serious harm test was met in this case.

Guy Vassall-Adams QC and Edward Craven from Matrix Chambers, and Romana Canneti from 4KBW acted for the Media Lawyers Association.

For a link to the judgment, please see here.