In the recent case of Lachaux v Independent Print Ltd and Evening Standard Ltd [2021], Mr Justice Nicklin made an award of damages to the Claimant on the following basis:
“…I will award the Claimant £50,000 against the First Defendant and £70,000 against the Second Defendant. The difference in the award between the two Defendants principally reflects the greater extent of publication for which the Second Defendant was responsible.”
Lachaux v Independent Print Ltd and Evening Standard Ltd
Case summary
The background to this case was widely reported in the press. The current case involved articles published by the Defendants about the Claimant and his ex-wife, Afsana. At an earlier hearing, the Court determined that the meanings of the articles were as follows:
“The Judge found that the meaning of the Independent Article was that the Claimant:
“(i) became violent towards his ex-wife Afsana soon after the birth of their son, which caused her, fearing for her safety, to escape and go on the run with the child;
(ii) having tracked Afsana down, callously and without justification snatched their son back from his mother’s arms (and has never returned him);
(iii) falsely accused Afsana of kidnapping their son, a false charge which if upheld could result in her, quite unfairly and wrongly, spending several years in a Dubai jail;
(iv) was content to use Emirati law and its law enforcement system, which discriminate against women, in order to deprive Afsana of custody of and access to their son Louis;
(v) hid the child’s French passport and refused to allow him to be registered as a British citizen, as Afsana wished;
(vi) was violent, abusive and controlling and caused Afsana to fear for her own safety;
(vii) caused her passport to be confiscated thus for her to be trapped in the UAE; and
(viii) obtained custody on a false basis and also initiated a prosecution of Afsana in the UAE, which was founded upon a false allegation of abduction, and which gave rise to the risk of a lengthy prison sentence there.”…
(2) The meaning of the Standard Article was found to be that the Claimant:
“(i) became violent and abusive towards his ex-wife Afsana within months of marrying her, beating her and leaving her with bruises on at least one occasion;
(ii) assaulted Afsana in public on custody visits relating to their young son;
(iii) attempted to snatch their son on one custody visit, leaving him with a badly bruised head;
(iv) callously and without justification snatched their son from out of his pushchair in the street (and has never returned him);
(v) subjected Afsana to the injustice of facing jail in Dubai for ‘abducting’ her own child, when in truth she had only fled with him to escape the Claimant’s violent abuse;
(vi) having chosen to obtain a divorce in a Sharia court, also used Emirati law and its law enforcement system, which discriminate against women, in order to deprive Afsana of custody of and access to their son Louis;
(vii) hid the child’s French passport and refused to allow him to be registered as a British citizen, as Afsana wished;
(viii) was violent, abusive and controlling and caused Afsana to fear for her own safety;
(ix) caused her passport to be confiscated thus for her to be trapped in the UAE;
(x) threatened to report Rabbhi and Shabbir Yahiya to the police for aiding a kidnap if they came to Dubai;
(xi) caused Afsana to go on the run with Louis; and
(xii) obtained custody on a false basis and also initiated a prosecution of Afsana in the UAE, which was founded upon a false allegation of abduction, and which gave rise to the risk of a lengthy prison sentence there.”
The defences originally submitted by the Defendants pleaded defences of the truth, denying serious harm had been caused to the Claimant’s reputation and public interest. The denial that serious harm was caused by the articles was dismissed at an earlier hearing and that dismissal withstood an appeal from the Defendants. The defence of the truth was withdrawn by the Defendants prior to trial, most likely due to the findings of the Judge in collateral family proceedings between the Claimant and his ex-wife in which the Judge found as follows:
“[122] … As will by now be apparent I reject the majority of the mother’s case. I do not accept that she was a victim of abuse, threats and violence from the father, although I do accept that the relationship was stormy and that in the course of frequent arguments each hurled accusatory insults at the other. I do not accept that she was fearful of him. I do not accept that her complaints were not investigated or taken seriously by the police and the court. I do not accept that she was mistreated by the police. I emphatically do not accept that she lived in hiding as she was fearful of the father and the authorities.
“She went underground to prevent the father seeing his child and because she feared she would lose the case brought by him. I do not accept that she was trapped in Dubai as a result of travel bans or confiscation of her passport. After she was found she was able to leave without let or hindrance.
“I do not accept that she did not have notice of the divorce proceedings or the opportunity to participate in them. She did participate in them and filed an extensive defence and counterclaim. I do not accept that she did not have adequate representation and did not have the means to secure adequate representation. I do not accept that the proceedings were unfair. The ground for divorce used in this case is virtually identical to our most commonly used one (unreasonable behaviour), and the custody laws are best interests based. The mother was not divorced on traditional Islamic grounds and sharia judges did not steal her son.
“[123] I do accept that from April 2011 the mother and Louis were excluded by the father from the marital home and had no suitable accommodation. I do accept that the father provided the mother with no financial support; that she was impoverished; and that she was unable to work and survived on charitable handouts and money sent by her family. I do accept that the mother has suffered from depression for a long time and also PTSD resulting from her experiences in Dubai. However neither of these conditions affect her capacity or absolve her from responsibility for her conduct. I do accept that until I intervened the father had failed to promote the relationship between mother and Louis. However, that failure must be set against the mother’s conduct when she disappeared off the map with Louis for 19 months…”
The only issue to be determined at trial was whether the Defendants could rely upon the public interest defence. As in most cases, where the only defence is the public interest defence, the Claimant was not required by the Defendants to give evidence as he would be able to add very little. A number of individuals gave evidence on behalf of the Defendants but the Judge was deeply unimpressed by the lack of contemporaneous notes/records in support of the views expressed on behalf of the Defendants in support of the public interest defence (even though the code of conduct relating to the publication of such articles required such notes to be maintained).
The Judge did find that the content of the articles was in the public interest on the basis set out below:
“In my judgment, the Independent Article published information concerning Afsana Lachaux, a British Citizen, who had been (a) the subject of domestic violence at the hands of her husband; (b) mistreated by the UAE authorities, and who was facing an unfair trial in the UAE on a charge of kidnapping her own son; and who claimed that she had been badly let down by the UK authorities who did not want to jeopardise the sale of military jets. There may be other elements – for example the issue of whether a dimension of the unfairness that she faced was because she was a woman facing proceedings in an Islamic country – but I am quite satisfied that the Independent Article was a statement on a matter of public interest.”
(Whilst the above passage only refers to the articles published by the First Defendant, the Judge affirms the same reasons in respect of the Second Defendant at paragraph 179 of the judgment)
Whilst the Judge did find that the articles published were in the public interest, he found against the Defendants largely on the following bases:
In respect of the First Defendant:
“For present purposes, I need only deal with that submission as it affects Mr Green, being the individual upon whose belief the First Defendant relies. It is correct that Ms Page QC did not suggest to him that, at the time of publication, he positively did not hold the beliefs as to the public interest in publication of the article that were advanced in his witness statement. However, it is not for the Claimant to prove that Mr Green did not hold the belief, it is for the First Defendant to prove that he did. Ms Page QC’s cross-examination shortly, but effectively, demonstrated that Mr Green had no recollection of his state of belief at the time of publication of the Independent Article. Although he was not asked the same direct question, as was asked of Mr Johnson, as to whether his witness statement was recollection or reconstruction, it is clear that Mr Green’s witness statement is just as much reconstruction on this point as Mr Johnson’s was. I should be very clear. I am not criticising either of them. Frankly, a witness who claimed to have a detailed recollection, without any contemporaneous documents, of what s/he believed on a particular day 7 years ago would be unlikely to be credible. I am quite satisfied that both Mr Green and Mr Johnson have done the best they can to assist the Court. Neither has been anything other than completely honest. Their attempt to reconstruct what they thought at the time has been a genuine effort to assist the Court. Critically, however, it is not a recollection, and I cannot attach any weight to it. It is also unsupported by any other evidence. Ultimately, the burden of proof on this issue rests on the First Defendant. For the reasons I have explained, it has failed to discharge it.”
In respect of the Second Defendant:
“Overall, and taking into account all the circumstances including the general public interest in the subject matter of the Standard Article, the Second Defendant has failed to demonstrate that the belief of Ms Ross and Ms Butter that publication of the Standard Article was in the public interest was reasonable. The important public interest in the subject matter generally of the Standard Article did not, on the facts of this case, reasonably justify the inclusion of the serious allegations against the Claimant…The inclusion of allegations of domestic violence… in such detail…without having contacted the Claimant for his response, with the resulting serious damage to the Claimant’s reputation from their publication, was not justified by the public interest in the article generally; it was neither necessary nor proportionate.”
Comment
This case highlights both the Court’s willingness to award substantial damages in defamation cases and also how difficult a public interest defence is to succeed with, especially in circumstances where there is little by way of a contemporaneous record of the decision-making process.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
Should you be affected by potentially defamatory comments made by you or about you, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.