Arron Banks v Carole Cadwalladr
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Singh,Dame Victoria Sharp, P |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] EWCA Civ 219 |
| Docket Number | Case No: CA-2022-001390 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 219
Dame Victoria Sharp, PRESIDENT OF THE KING'S BENCH DIVISION
Lord Justice Singh
and
Lord Justice Warby
Case No: CA-2022-001390
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mrs Justice Steyn
Royal Courts of Justice
Strand, London, WC2A 2LL
Benjamin Williams KC and Richard Munden (instructed by Lysander Law Limited) for the Appellant
Gavin Millar KC and Aidan Wills (instructed by Reynolds Porter Chamberlain) for the Respondent
Hearing date: 7 February 2023
Approved Judgment
This judgment was handed down 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 14:00pm on Tuesday 28 February 2023
Summary
The claimant sued the defendant for libel in a talk (“the TED Talk”) and a tweet (“the Tweet”) each of which suggested that the claimant had secretly broken the law on electoral funding by taking money from a foreign power and lied about the matter. The TED Talk and the Tweet were published online to a substantial audience in this jurisdiction. By the time of trial official investigations had found no evidence that there had been any such breach of the law. A defence of truth had been abandoned. The defendant had apologised. But she relied on the statutory defence of publication on matters of public interest.
The trial judge dismissed both claims, holding that although the initial publication of the TED Talk had caused serious harm to the claimant's reputation it was protected by the public interest defence; later publication of the TED Talk was not so protected but had not caused serious harm and was therefore not actionable; as for the Tweet, its publication would have been protected by the public interest defence to the same extent as the TED Talk but none of it was actionable anyway as it had not caused any serious harm to the claimant's reputation. The claimant now appeals.
The appeal raises three issues about the interpretation and application of section 1(1) of the Defamation Act 2013 (“the 2013 Act”). This provides that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. This is sometimes referred to as the serious harm requirement.
The first issue concerns the meaning of section 1(1) and its relationship with section 4(1) of the 2013 Act in a case of continuing publication. Section 4(1) provides that “[i]t is a defence to an action for defamation for the defendant to show that (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”. Where the defendant has a public interest defence which falls away, is the fact that the first, lawful phase of publication caused serious harm to the claimant's reputation enough as a matter of law to justify a judgment for the claimant in respect of the second phase?
The trial judge said that it is not. She held that in such a situation it is necessary for the claimant to prove that that publication in the second phase has caused serious harm or is likely to do so. The claimant challenges that conclusion but in my view it was correct. The effect of section 1(1) of the 2013 Act is that a statement is only to be regarded as defamatory if and to the extent that its publication causes serious harm to reputation or is likely to do so; publication that does not cause serious harm and is not likely to do so is not actionable. The judge was therefore right to consider whether the claimant had shown that the second phase of publication of the TED Talk had caused serious harm to the claimant's reputation or was likely to do so.
The second issue is whether the judge's approach to the question of whether serious harm was established was wrong in law. The claimant makes three main points on this issue. He argues that the judge failed to focus on the actual scale of the publication with which she was concerned, looking instead at how it compared with the scale of other publications; that her conclusion that harm was diminished because most of those to whom the relevant publications were made were in the defendant's “echo chamber” was legally wrong or untenable on the evidence; and that her finding that harm was reduced because many of the publishees were people whose opinion of the claimant was of “no consequence” to him was also wrong in law. The judge is said to have made all three mistakes when dealing with the TED Talk and with the Tweet.
I am not persuaded that the judge made the first of the alleged mistakes, but I have concluded that she did make the second and the third of them. If what the judge meant by the term “echo chamber” was that most of the publishees were people who disliked or had a generally low opinion of the claimant that was irrelevant to the question she had to decide. If, as I believe, what she meant was that in the minds of most publishees the claimant already had a bad reputation for the specific misconduct of taking foreign money in breach of electoral law and lying about it the evidence did not allow such a finding. The judge's finding that harm to the claimant's reputation in the eyes of these publishees was of “no consequence” to him was also unsustainable. If she meant that the claimant did not care what these publishees thought, that was legally irrelevant to the issue of whether serious reputational harm was established. There was no evidence to support a conclusion that others' adverse opinions of the claimant were of “no consequence” to him in the sense that they could have no practical impact upon his life.
The third issue is whether these errors of principle invalidate the judge's overall conclusions and her decision to dismiss both claims. The claimant argues that they do, and that on a proper application of the law to the facts of the case it was not open to the judge to dismiss either claim. He says the only legitimate conclusion is that the serious harm requirement was satisfied and so there should be judgment for the claimant. This argument is advanced in respect of the TED Talk and the Tweet.
I would accept these submissions so far as the TED Talk is concerned. The TED Talk conveyed a serious allegation, involving dishonesty and breach of electoral law, which was inherently likely to cause serious reputational harm. On any view there was extensive publication of the TED Talk in this jurisdiction in phase two. The judge rejected the defendant's attempt to show that the claimant had a pre-existing bad reputation. Her own reasoning about an “echo chamber” and the lack of any “consequence” was unsound as I have said. There was nothing else to act as a counterweight to the natural inference that publication in phase two had caused serious harm to the reputation of the claimant. The precise measure of that harm remains to be assessed but it is not possible to conclude that it was not “serious”. To that extent, I would allow the appeal against the dismissal of the claim in respect of the TED Talk.
The position in respect of the Tweet is different. Although it conveyed the same serious imputation as the TED Talk the judge found that its publication peaked at or near the time it was first posted, after which it fell further and further down the defendant's timeline, as one would expect. For 10 months any publication was protected by the public interest defence. In my judgment, whatever might be said about harm caused by the initial phase of publication, there was no basis for any inference that there was any publication of the Tweet in phase two that caused any serious reputational harm. To that extent the judge was clearly right. I would therefore uphold her decision in respect of the Tweet and dismiss that aspect of the appeal.
The background to the appeal and the reasons for my conclusions on all these issues are set out in more detail in the remainder of this judgment. I address the consequences of my conclusions at the very end of the judgment.
The claim and the issues
The claimant is a businessman who was a leader of the campaign for the UK to leave the EU. The defendant is a freelance journalist and writer. The TED Talk was given by the claimant on 15 April 2019 at the TED2019 Conference in Canada. It was recorded and thereafter published on the TED.com website. The words complained of 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.” The claimant's solicitors wrote a pre-action letter complaining about the TED Talk. On 24 June 2019 the defendant posted the Tweet. The words complained of were: “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 Tweet contained a hyperlink to the TED talk. The claimant brought this action.
The defendant has never disputed her responsibility for either publication. There was a trial of preliminary issues at which the natural and ordinary meaning of each was determined by Saini J. He held that the words complained of in the TED Talk meant, in their context, that: “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”. He held that the Tweet bore the same meaning. This...
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