Arron Banks v Carole Cadwalladr
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWHC 3451 (QB) |
| Date | 12 December 2019 |
| Docket Number | Case No: QB-2019-002507 |
| Court | Queen's Bench Division |
[2019] EWHC 3451 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Saini
Case No: QB-2019-002507
William McCormick QC and Sara Mansoori (instructed by Kingsley Napley LLP) for the Claimant
Gavin Millar QC and Ben Silverstone (instructed by Bindmans LLP) for the Defendant
Hearing dates: 4 December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is divided into 5 sections with two annexes as follows:
I. Overview: paras. [1–12]
I. Overview
This is the trial of a preliminary issue as to meaning in a defamation claim brought by the Claimant (“Mr. Banks”) against the Defendant (“Ms. Cadwalladr”) in respect of four publications.
Mr. Banks is a British businessman who is a prominent figure in the campaign for the United Kingdom to leave the EU. In that connection, Mr Banks co-founded and funded Leave.EU.
Ms. Cadwalladr is an author, investigative journalist and features writer whose investigations have focused on a broad range of issues including the EU referendum campaign, electoral funding, and use of personal data and technology.
The four publications in issue are as follows:
(a) A statement made by Ms. Cadwalladr in a 15 minute TED talk she gave in April 2019 (the “Ted Talk”). The full text of the Ted Talk is at Annexe A and given that it is intended to be heard (and not read as text) it is more appropriately considered in its original broadcast form. I return to this theme below. The Ted Talk can be found at https://www.ted.com/talks/carole_cadwalladr_ facebook_s_role_in_brexit_and_the_threat_to_democracy/transcript#t-739134. The specific words complained of are set out at para. [14] below. They are spoken 7 minutes into the Ted Talk. At the date of the Letter of Claim it hadbeen viewed more than 2 million times.
(b) A statement made by Ms. Cadwalladr in a broadcast talk entitled “The Convention: Never Again!” on 4 Jun 2019 (“the Convention Speech”). This is reproduced at Annexe B but again should be considered in the original form: https://www.youtube.com/watch?v=VyB99tdyKFA. The speech lasts for 18 minutes and the words complained of (set out at para. [18] below) are spoken 16 minutes in. At the date of the Letter of Claim it had been viewed on YouTube more than 5,000 times.
(c) A short tweet by Ms. Cadwalladr on 24 June 2019 (“the First Tweet”); and
(d) A short tweet by Ms. Cadwalladr on 11 July 2019 (“the Second Tweet”).
Each of these publications remains accessible at the present time. I understand that Ms. Cadwalladr had, at the material times, in the region of 400,000 followers on Twitter.
The parties could not be more divided as to what they argued was meant by the publications. As is usual, the Claimant's advisers sought to extract the most serious and damaging meaning from the language used by Ms. Cadwalladr while her advisers sought to do the opposite arguing for lower Chase level meanings.
As a result, the written and oral arguments advanced in support of the substantially different meanings (specifically, those in relation to the Ted Talk and the Convention Speech — which were transcribed into text documents in the bundles) at times seemed to me to be more like arguments about the construction of a deed concerning the demise of a leasehold interest.
The arguments on both sides involved on occasion going back and forth between different passages in the text version, and reflecting on what the speaker was referring to later by reference to a passage earlier in the text. To take just one example, when Ms. Cadwalladr referred in the Convention Speech to the Russian Government having offered money to Mr. Banks (see Annexe B, para. 14) one of the arguments before me involved going back a few pages in the text to reflect on whether this was really just about the “gold and diamond deals” (see Annexe B, para. 8) which Mr. Banks is said to have been offered in the Russian embassy. A viewer would not do that. They would simply watch the Ted Talk in one go and not, as a lawyer would do, think as follows: when Ms. Cadwalladr refers to Russian offers of money was she referring to gold and diamonds which I can identify by looking back? Are they the same thing as money or was this something else?
The ordinary reasonable viewer of the Ted Talk and the Convention Speech does not have a text before her. She will watch it as an uninterrupted broadcast and is most unlikely to rewind back to an earlier part and slowly examine the language (as if she had the text before her) and then go back to where she stopped earlier and reflect on what the meaning was.
One can readily understand why in disputes as to meaning of language this happens. Lawyers (and I include judges in that category) cannot resist turning any exercise where language is being considered into an exercise in construction of words. That problem is particularly acute when a speech (given and intended to be viewed and heard, and not read) is turned into a text document.
This process diverts one from what should be a simple task in most cases and calls into question whether our normal adversarial processes (pleading, skeleton arguments and oral argument) are the appropriate way in which to resolve disputes as to meaning. The task of the court is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable viewer of the videos (or reader of the tweets) would understand the words bear. The court is to undertake that task without over-elaborate analysis and without adopting too literal an approach to this task. Textual analysis is the exact opposite.
As I told the parties at the hearing, I approached this task by viewing and reading the relevant publications without considering the pleaded case and skeleton arguments. My mind being unpolluted by such materials, I formed a preliminary view as to the meanings. Although I have found the submissions of substantial assistance as a cross-check on that initial view, I was not ultimately persuaded that the meanings forcefully advanced by either party were wholly correct. There were however important parts of each of their cases which reflected or were similar to my own original conclusions.
II. The Publications and the Rival Meanings
The specific words in respect of which complaint is made in each of the publications are as follows.
(a) The Ted Talk
The Ted talk was titled “Facebook's role in Brexit – and the threat to democracy” and within it the Claimant said:
“And I am not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government.”
The Claimants argued that the natural and ordinary meaning of these words is “that the Claimant has repeatedly lied about the nature and/or extent of his relationship with the Russian Government”.
The Claimant's alternative (and modified) natural and ordinary meaning if (contrary to his primary case) the Court decides that the “lies” require more by way of context is: “that the Claimant has repeatedly lied about the nature and/or extent of his relationship with the Russian Government in relation to whether that relationship involved acceptance of Russian funding in breach of the law on funding referendum campaigns”. This was a modification and departure from the pleaded case, which was first indicated at the hearing and formulated thereafter. It is the subject of a Note I received from the Defendant's advisers after the hearing. I return to that issue in Section V below at para [82].
The Defendant's meaning is: “that (a) there are reasonable grounds to suspect that Mr Banks has lied about having a secret relationship with the Russian government and (b) there are grounds to investigate whether that relationship involved acceptance of foreign funding in breach of the law on funding referendum campaigns”.
(b) The Convention Speech
The words complained of are:
“We know that the Russian Government offered money to Arron Banks.”
The Claimant's natural and ordinary and/or inferential meaning (as modified at trial) is: “that the Russian government offered the Claimant money and there were strong grounds to believe that he would, in return for such an offer, assist the Russian government in achieving its aims and objectives, even though those aims and objectives did not align with those of the United Kingdom.”
The Defendant's meaning is: “Mr Banks was offered a financial benefit by the Russian government and there are reasonable grounds to investigate whether he was willing to accept it in circumstances where its acceptance would have been a breach of the prohibition on foreign funding of referendum campaigns”.
(c) The First Tweet
The First Tweet (with my underlining of the words complained of):
“Oh Arron. This is too tragic. Nigel Farage's secret funder Arron Banks has sent me a pre-action letter this morning; he's suing me over this TED talk. If you haven't watched it please do. I say he lied about his contact with Russian govt. Because he did.”
The Claimant's say the natural and ordinary meaning is: “that the Claimant has lied about the nature and/or extent of his relationship with the Russian Government”.
The Defendant says the meaning is: “that (a) there are reasonable grounds to suspect that Mr. Banks has lied about having a secret relationship with the Russian government and (b) there are grounds to investigate whether that relationship involved acceptance of foreign funding in breach of the law on funding referendum...
To continue reading
Request your trial
-
Arron Banks v Carole Cadwalladr
...on 24 June 2019 (‘the Tweet’). The text of the Ted Talk, and a hyperlink to it, are set out in Saini J's judgment: Banks v Cadwalladr [2019] EWHC 3451 (QB), [4a] and Annex A. Both publications remain 2 Mr Banks is an important public figure in the political domain, having been one of the l......