Blake and Others v Fox
| Jurisdiction | England & Wales |
| Judge | Senior Master Fontaine |
| Judgment Date | 21 February 2023 |
| Neutral Citation | [2023] EWHC 3351 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-001248 |
[2023] EWHC 3351 (KB)
Senior Master Fontaine
Case No: QB-2021-001248
IN THE HIGH COURT OF JUSTICE
MEDIA AND COMMUNICATIONS LIST
KINGS BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Ms B Grossman and Ms H Rogers (instructed by Doughty Street) appeared on behalf of the Claimants
Mr G Callus and Ms A Marzec (instructed by 5RB) appeared on behalf of the Defendant
THE SENIOR MASTER: This is a costs and case management conference, at which most matters have been agreed or determined, and the remaining issue that I am now dealing with is the defendant's application notice, dated 16 February 2023, for an order that the claimants be required to answer question 17 to 23 of the requests for further information, which I think was dated 1 February 2023, by 28 February 2023.
The requests are made in respect of the claimants' defence to counterclaim in this defamation case where there are claims on both sides by the claimants and their claim by the defendant in his counterclaim. The request has been answered, but the defendant takes the view that request 17 to 23 have not been properly or fully answered, and seeks a fuller and better answer.
All the requests relate to the issue of the meaning of racism and how that meaning is related to and forms a foundation of the defences of the claimants to the honest opinion defence that they provide in response to the defendant's counterclaim, and the third claimant's defence of truth, which she puts forward in response to the counterclaim.
The essential dispute between the parties is whether that meaning has been sufficiently addressed in the pleaded case and whether the matters on which the claimants rely in their case on that have been sufficiently addressed. There is a fundamental disagreement between the parties as to whether any further definition of meaning of racist in respect of the counterclaim is required, because there has been a preliminary issue trial in relation to both meaning and honest opinion by Nicklin J, following a hearing on 1 November 2022. Unfortunately we only have the transcript of the hearing and the judgment is not yet available, but the order that Nicklin J made is available, and that records that he determined the natural and ordinary meaning of the publications in the claim, which is not relevant for today's purposes, and in relation to the counterclaim he determined that the natural and ordinary meaning of each tweet, which are the publications relied upon, is that the defendant is a racist. He held that such meaning was defamatory at common law and that each publication was an expression of opinion. The distinction between the position of the parties in relation to all the requests is whether that meaning, having been determined by Nicklin J at the preliminary issue trial, relates to whether any further elaboration is needed in relation to the claimants' defences of honest opinion and truth.
As to the approach to a request for further information, I have been helpfully referred to a number of authorities, one of which is in the commercial court: Al-Saud v Gibbs [2022] EWHC 706 Commercial before Mr Richard Salter QC sitting as a deputy judge of the High Court, where he refers to the approach to Part 18, and also refers to the Practice Direction. At [34] he says:
“The terms of the Practice Direction also make it clear that requests and orders under CPR Part 18 must be strictly confined to matters which are reasonably necessary and proportionate for the stated purpose.”
He also refers to another authority, which I have been referred to, King v Telegraph Group Ltd [2000] EWCA Civ 613 where Brooke LJ laid stress on the strictness required by the terms of the Practice Direction in confining this particular rule to strictly what is “necessary and proportionate and the avoidance of disproportionate expense.”
It is submitted on behalf of the claimants that the application does not meet those requirements and the fact that the alleged absence of further particulars has not prevented the requesting party from providing the pleading or otherwise preparing for the CCMC is also relevant to whether the requests are reasonably proportionate and necessary by reference to the judgment in Kings Security System Limited v Kings and Evans [2019] EWHC 3620 [52 to 53].
I will now turn to the...
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