Defamation and domestic abuse, the judgment in Lee v Brown – Julie Doughty
July 12, 2022 / INFORRM / 0 Comments
The judgment in Lee v Brown [2022] EWHC 1699 (QB) was handed down on 1 July 2022. I wrote about the case after I attended one day of a hearing on 20 June. This update isn't going to go into detail on defamation law but will, I hope, explain further why I think the scaremongering after Depp v Heard (US trial) was exaggerated. Fear of being threatened with libel should never stop anyone reporting abuse.
The claimant in Lee v Brown (Mr Lee) failed to establish that his reputation had suffered serious harm caused by the defendant's (Ms Brown's) statements about him. This means the defamation case is over. As the judge, Collins Rice J, firmly concluded:
These High Court proceedings are at an end. Mr Lee has not discharged his burden of persuading me that any of the publications of which he complains has caused or is likely to cause serious harm to his reputation. He has not therefore succeeded on his defamation claim, and it goes no further [para 88].
Why might allegations of domestic abuse come before a defamation court?
It's true that this case is not an isolated example of domestic abuse and defamation, but let's hope that Collins Rice J's brisk dealing with Mr Lee's claim will send a firm message. As I wrote in the earlier blog post, an open hearing in the High Court felt a completely inappropriate forum for the history of these parties' relationship to be played out.
The leading authority on interpreting 'serious harm', under section 1 Defamation Act 2013, happens to have resulted from abuse allegations, Lachaux v Independent & others, but it's an unusual case, for a number of reasons. In Lachaux in the High Court, Warby J formulated a section 1 threshold test that was subsequently approved by the Supreme Court. Section 1 requires more than a tendency for the meaning of words used to make people think less of a claimant; there has to be evidence of the impact. Collins Rice J explains this:
15.The relevant facts may be established by evidencing specific instances of serious consequences inflicted on a claimant as a result of the reputational harm. But they do not always have to be.
16.Particularly where a general readership rather than identified publishees are involved, the test may also be satisfied by general inferences of fact, drawn from a combination of the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. Relevant factors may then include: the scale of publication of the statement complained of; whether the statement has come to the attention of at least one identifiable person who knew the claimant; whether it was likely to have come to the attention of others who either knew him or would come to know him in the future; and the gravity of the allegations themselves.
Looking at inference in para 16 for a moment, of course, any allegation of intimate partner violence (domestic abuse or coercive control) is grave. However, the extent of publication vastly differed between Lachaux (news stories published by the Independent, The Evening Standard, and the Huffington Post) and Lee v Brown . The latter comprised one instance of alleged slander in a chat with a friend; one Facebook post; and 20 emails to individuals back in 2020. It's obvious that Ms Brown's audience was tiny in comparison with the number who may have read about Mr Lachaux. Similarly, in the London case, Depp sued The Sun newspaper, whose circulation makes serious harm to his reputation very likely. In cases like Lachaux and Depp, the scale of publication was a major factor in whether serious harm could be 'inferred' i.e a logical conclusion.
There is a huge difference between an individual complaining of IPV or reporting it to e.g the police or a support organisation, and professional journalists writing in national media outlets. That is why I wrote at the outset of this post that fear of defamation claims in an England & Wales court should not intimidate a victim from speaking up.
Why did the claim in Lee v Brown fail?
This is clearly explained by Collins Rice J, at length, so I'm not going to attempt a full analysis. She sets out exactly what the claimant had to do – but in the absence of legal representation, these requirements had presumably not been clear to him. As the judge warns:
It is notoriously difficult for a litigant in person, however informed and articulate, to bring a successful defamation action. That is because the law is detailed and complex, highly fact-sensitive, sometimes counter-intuitive, and contains traps for the inexperienced. It is an area of expert legal practice, daunting even for other legal professionals. That is one reason why defamation cases can be brought only in High Court proceedings, and in a specialist Queen's Bench list. Another is that defamation actions engage fundamental issues of freedom of expression [para 31].
The judge considered the meaning of each of the 22 statements, any specific evidence submitted by the claimant about their impact, and also where he argued that serious harm could be inferred. As set out in paras 15 and 16, the court needs concrete evidence of the impact of the defendant's words on the claimant's reputation . It also requires evidence that anything cited as 'harm' was directly caused by a statement cited by the claimant, and nothing else. In other words, serious harm has to be shown as a direct result of one or more of the 22 statements, either through specific consequences or by inference. Here, the claimant did not prove a link between any statement and anything that subsequently happened, nor did he prove it was likely that anyone who came across the statements would think so ill of him that his reputation would be seriously damaged. There was no third party evidence of damage and he did not in any of his own evidence or submissions make that link
It should be noted here that the journalists who wrote about Mr Lachaux could not prove their stories were true and also failed in what's known as a public interest defence, mainly because they couldn't remember why they'd written them in the first place. In the London Depp case, the Sun was able to prove to the High Court judge that the allegations in Dan Wootton's article were substantially true. Both cases did feature serious harm to the claimants, but the publishers in Lachaux didn't have a successful defence whereas the publisher in Depp did. Lachaux and Depp were cases about tort law and media law and Lachaux raised and resolved some important issues and principles arising from the reformed legislation. Although the Depp judgment is not as noteworthy and perhaps he was ill advised to sue the Sun, he was presumably losing some popularity, and therefore a libel action seemed to way to restore his reputation.
On the other hand, in Lee v Brown, the judge suggests that protecting his reputation may not have been the claimant's aim at all:
85… Mr Lee himself puts Ms Brown's course of conduct at the heart of the matter; he has not demonstrated that the publications in question are anything other than incidental to that.
86. I have no doubt of the strength of Mr Lee's objections to Ms Brown's course of conduct. About the merits of those objections, and whether or not he may have other routes of redress open to him in law to explore them, I express no view… it may be that on reflection he concludes that after all it is not so much the actual or imagined impact of these particular examples of Ms Brown's allegations on his reputation among other people that troubles him, but the fact that she is making them at all, and (on his account) as part of a protracted and unwarranted campaign.
The purpose of defamation law is to enable protection of reputation. It is all about the perception of the claimant in the eyes of 'the right thinking person'. It is not about the claimant's own feelings, nor the defendant's motivation. A case like Lee v Brown, where no large scale publisher is involved, where the issue is alleged coercive control, and the claimant is himself conducting the proceedings, has no place in a defamation court.
This post originally appeared in the Transparency Project Blog and is reproduced with permission and thanks
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