Arron Banks v Carole Cadwalladr
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 13 June 2022 |
| Neutral Citation | [2022] EWHC 1417 (QB) |
| Docket Number | Case No: QB-2019-002507 |
| Court | Queen's Bench Division |
[2022] EWHC 1417 (QB)
THE HON. Mrs Justice Steyn DBE
Case No: QB-2019-002507
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
William McCormick QC and Sara Mansoori QC (instructed by Kingsley Napley LLP) for the Claimant
Gavin Millar QC and Aidan Wills (instructed by RPC LLP) for the Defendant
Hearing dates: 14, 17, 18, 19 and 21 January 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mrs Justice Steyn DBE
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.00 AM on Monday 13th June 2022.
Index
| I | ||
| A. | Introduction | §§1–9 |
| B. | Issues for determination | §§10–11 |
| C. | Brief history of the proceedings | §§12–18 |
| D. | Overview of the witness evidence | §§19–47 |
| II: SERIOUS HARM TO REPUTATION: S.1 DEFAMATION ACT 2013 | ||
| E. | The law | §§48–56 |
| F. | The evidence and submissions | §§60–79 |
| G. | Decision on serious harm | §§80–99 |
| III: PUBLIC INTEREST DEFENCE: S.4 DEFAMATION ACT 2013 | ||
| H. | The law | §§100–135 |
| I. | Matters of public interest | §§136–140 |
| J. | Belief that publication was in the public interest | §§141 – 142 |
| K. | Reasonable belief: the facts | |
| (a) The subject and nature of the TED Talk | §§143–144 | |
| (b) Broader public interest in Russian interference and Mr Banks's role as a public figure | §§145–151 | |
| (c) Overview of Ms Cadwalladr's investigation and relevant publications | §§152–212 | |
| (d) The ICO, Electoral Commission and NCA investigations | §§213–221 | |
| (e) Mr Banks's wealth and business interests | §§222 – 247 | |
| (f) Katya Banks and the ‘spy scandal’ press reports | §§248–260 | |
| (g) Mr Banks's statements regarding his relationship with the Russian government and his donations to the Brexit campaign | §§261–291 | |
| (h) Other evidence regarding Mr Banks's relationship with the Russian government | §§292–329 | |
| (i) Verification via enquiries of Mr Banks | §§330–349 | |
| (j) The drafting and editorial process for the TED Talk | §§350–372 | |
| (k) Ms Cadwalladr's intended meaning | §§373–375 | |
| L. | Reasonable belief: discussion and conclusions | §§377–399 |
| M. | Significant change in circumstances | §§400–413 |
| N. | Summary of conclusions on public interest defence | §§414–415 |
| IV | ||
| O. | Overall conclusions | §416 |
A. Introduction
This is the judgment following the trial of a libel claim brought by the claimant, Mr Arron Banks, against the defendant, Ms Carole Cadwalladr. The claim concerns a TED talk entitled “ Facebook's role in Brexit – and the threat to democracy” (‘the TED Talk’) which Ms Cadwalladr gave on 15 April 2019 at the TED2019 Conference in Vancouver, Canada (‘the TED Conference’). A video recording of the TED Talk was published on the TED.com website shortly after it was given. Mr Banks also complains about a tweet published by Ms 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 accessible.
Mr Banks is an important public figure in the political domain, having been one of the leaders of, and by far the largest donor to, the successful campaign for the United Kingdom to vote in favour of leaving the European Union in the referendum held on 23 June 2016 (‘the EU Referendum’). He is also a businessman with a diverse range of business and investment interests, including in the insurance industry. Ms Cadwalladr is a freelance journalist and writer who has written predominantly for The Observer and The Guardian newspapers over the past 16 years.
The words spoken by Ms Cadwalladr in the TED Talk, of which complaint is made by Mr Banks in these proceedings, were:
“And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government.”
In the Tweet, Ms Cadwalladr provided a hyperlink to the TED Talk and wrote:
“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 the Russian govt. Because he did.”
The essential issues in this trial have been whether each of the statements made by Ms Cadwalladr has caused or is likely to cause serious harm to Mr Banks's reputation, within the meaning of s.1 of the Defamation Act 2013 (‘the 2013 Act’). And, if so, whether Ms Cadwalladr has established a public interest defence to the claim pursuant to s.4 of the 2013 Act.
On 12 December 2019, Saini J determined that the meaning of the words complained of in both the TED Talk and the Tweet is:
“On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding”.
(See Banks v Cadwalladr [2019] EWHC 3451 (QB). I refer to this below as ‘the single meaning’.)
Ms Cadwalladr does not contend that the single meaning is true. On the contrary, as she stated unequivocally in a letter of apology sent to Mr Banks on 25 March 2021:
“It was not my intention to make any such allegation and I accept that such an allegation would be untrue.”
Although the sincerity of that apology has been called into question (a matter I address below at paragraph 46 below), Ms Cadwalladr has not sought to withdraw from or dilute her clear acknowledgment that the single meaning is untrue. Ms Cadwalladr gave evidence that “ there was no evidence” that Mr Banks “ had gone through with the deals” (proffered via the Russian embassy) “ or made any money from them”; or that he “ had accepted any money from the Russian government or its proxies”. Nor was there any evidence “ that Russian money went into the Brexit campaign”. Ms Cadwalladr also made clear that she had never thought Mr Banks was a “ Russian agent” or a “ Russian actor”.
Ms Cadwalladr has repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her. I have set out a summary of my conclusions in paragraph 416 below. Although, for the reasons I have given, Mr Banks's claim has failed, his attempt to seek vindication through these proceedings was, in my judgment, legitimate. In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit.
B. Issues for determination
The agreed issues for determination are:
Serious harm
i) Has the claimant proved that the publication of the TED Talk and/or the Tweet has caused and/or is likely to cause serious harm to his reputation?
Public Interest Defence
In respect of each publication:
ii) Has the defendant shown that she believed that publishing the statement complained of was in the public interest?
iii) If so, has the defendant shown that her belief was reasonable having regard to all the circumstances of the case?
iv) If so, has there been a significant change in circumstances since the original publication such that the defence in section 4 of the 2013 Act ceased to apply and, if so, when did any such change occur?
Damages
v) If the claimant succeeds on liability in relation to the TED Talk and/or the Tweet, what sum should be awarded in damages?
If the claimant succeeds on liability, the parties have agreed further issues arise in relation to remedy, concerning an injunction and orders under sections 12 and 13 of the 2013 Act. However, it was agreed that those are matters on which it would be better to hear argument, if the issues arise, once the parties have had the opportunity to consider my judgment on liability.
C. Brief history of the proceedings
The claim form was issued on 12 July 2019, and amended on 12 September 2019. The Particulars of Claim were served on 31 July 2019.
By a consent order made by Master McCloud on 30 August 2019, the matter was set down for a trial of the preliminary issue of the meaning of the words complained of in the four publications which were then the subject of the claim. The trial of meaning was heard by Saini J on 4 December 2019 and he gave the judgment to which I have referred on 12 December 2019.
A re-amended claim form and Amended Particulars of Claim were served on 20 December 2019. The claimant dropped his claim in respect of two publications (namely, a talk given by Ms Cadwalladr on 4 June 2019, entitled “ The Convention: Never Again” and a tweet published by her on 11 July 2019), while maintaining his claim in respect of the TED Talk and the Tweet.
The Defence was served on 31 January 2020 in which limitation, truth and public interest defences were raised. On 27 February 2020, the claimant served a request for clarification and further information in relation to the defence under CPR Part 18, to which the defendant responded on 3 April 2020.
On 22 May 2020, the claimant filed an application to strike out part of the defendant's Defence and Response to the Request for Further Information. On 23 October 2020, a hearing took place before Saini J, at the joint request of the parties for clarification of the single meaning (see paragraph 6 above). Saini J made no order in relation to the clarification sought. On 19 November 2020 the claimant filed a further strike out...
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