Esther Ruth Baker v John Alexander Melvin Hemming
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 05 November 2019 |
| Neutral Citation | [2019] EWHC 2950 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ18M03248 |
| Date | 05 November 2019 |
[2019] EWHC 2950 (QB)
THE HONOURABLE Mrs Justice Steyn DBE
Case No: HQ18M03248
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant appeared in person
Richard Owen-Thomas (instructed directly) for the Defendant
Hearing date: 17 October 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.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
This case concerns a claim and a counterclaim for defamation. The parties each apply to strike out the other party's statement of case and for summary judgment in their favour.
The Claimant represented herself at the hearing. The Defendant also litigates this case in person, but he instructed Mr Owen-Thomas of Counsel to represent him at the hearing.
B. The claim
The Claimant, Ms Baker, brings a claim for defamation in respect of three publications.
The first publication, entitled “ Statement Re False Allegations from Esther Baker”, was first published, online, by the Defendant, Mr Hemmings, on 5 September 2017 on his blog (“the first publication”). The passages relied upon by the Claimant read:
“I am pleased that the police have now made it clear that there has been a concerted effort to promote false criminal allegations against me and that the allegations had no substance whatsoever.”
“It is bad enough to have false allegations made about yourself to the police, but to have a concerted campaign involving your political opponents and many others in public creates an environment in which it is reasonable to be concerned about ill-founded vigilante attacks on your family and yourself. Luckily there was a more substantial lobby to the contrary as well, which included many people who were themselves real survivors of abuse.”
“Sky should recognise that not only was their broadcast of the original allegations in May 2015 a complete nonsense, but also had it been based upon truthful allegations that it would have undermined a criminal investigation. The attempts to drum up false complainants through the use of publicity highlights a difficulty with publicising cases whilst a police investigation is going on.”
The Defendant admits that the natural and ordinary meanings of the words are that the Claimant:
i) “ Was a liar who had maliciously made up false allegations of rape about the Defendant” (Amended Particulars of Claimant, “AmPOC”, para 6.1); and
ii) “ There are reasonable grounds to suspect that by making such false allegations, the Claimant is guilty of perverting the course of justice” (AmPOC, para 6.3).
There is a dispute in respect of one further meaning pleaded by the Claimant. She contends the meaning is that she was “ instrumental in a vigilante campaign” against the Defendant whereas he avers that the words mean that “ the Claimant's lies had made him concerned he would be the subject of vigilante attack and encouraged vigilantism”.
The second publication is an article published via the Mail Online website and in print in the Daily Mail newspaper, on 22 June 2018, under the headline: “ Former MP blasts ‘politically correct’ police as woman who made false child rape allegations against him is to face no charge” (“the second publication”). The passage relied on by the Claimant reads:
“John Hemming said their refusal to seek charges against his accuser Esther Baker undermined the criminal justice system and would encourage ‘other fantasists’ to make bogus paedophile claims.”
The Defendant admits that the natural and ordinary meaning of the words complained of is, as pleaded by the Claimant, that:
i) “ The Claimant is a fantasist who had made false allegations about the sexual abuse of children.” (AmPOC, para 20.1)
ii) “ The Claimant is in fact guilty of perverting the course of justice and should have been prosecuted accordingly.” (AmPOC, para 20.2)
The third publication is an article published via the Daily Mail's website on 19 January 2018 with the headline: “ Abuse probe farce: ‘Fantasist’ who claimed she was raped by an MP she had ‘never met’ is named as special witness for the child sex inquiry” (“the third publication”).
The Defendant admits that the natural and ordinary meaning of the words complained of is, as pleaded by the Claimant, that:
i) “ The Claimant is untrustworthy” (AmPOC, para 24.1); and
ii) “ The Claimant is not a suitable person to receive public funding for the Independent Inquiry into Childhood Sexual Abuse (“IICSA”)” (AmPOC, para 24.2).
The Defendant relies on the following defences:
i) Limitation: the Defendant has raised a limitation defence on the basis that the claim was brought more than one year after the date of the first publication and he contends the single publication rule in s.8 of the Defamation Act 2013 applies to the second and third publications.
ii) Truth: the Defendant has pleaded detailed particulars of truth at paragraphs 28–45, 80 and 87 of the Amended Defence and Counterclaim (“AmDef”).
iii) Qualified privilege of responding to attack is pleaded as a defence to each of the three publications (AmDef, paras 46–50, 81–82 and 89).
iv) Honest opinion is relied on in the alternative to truth in respect of the third publication (AmDef, para 88).
v) Set-off: the Defendant relies on his counterclaim as a defence by way of set-off of Ms Baker's claim (AmDef, paras 24, 77 and 85).
I address the terms of the Claimant's reply to these defences below.
C. The counterclaim
In response to the claim, the Defendant has counterclaimed for defamation. The publication on which the Defendant relies in his counterclaim is a tweet published by the Claimant on 11 November 2017 (“the Tweet”) which read:
“I accused an (then) MP of rape and sexual assault nearly 3 years ago. Since then I've been called every name under the sun & stalked relentlessly. With the news coming out of Westminster daily I'm reappealling for other victims of this “man” to come forward.”
The Tweet did not expressly name the Defendant, but the Claimant admits that a proportion of her Twitter followers “ understood based on their extrinsic knowledge that the Tweet referred to the Defendant as the subject of rape allegations by the Claimant”. In her (amended) “Reply to Defence and Defence of Counterclaim” served on 6 June 2019 (“the Claimant's Amended Reply”) the Claimant contends a “ small proportion” would have understood the reference to Mr Hemming (para 50), having previously averred a “ proportion” would have done so, without the qualifier “ small” (original “Reply to Defence & Counterclaim”, para 74). Irrespective of the size of the group, it is clear that reference to the Defendant is not in dispute.
The Defendant has pleaded both the natural and ordinary meaning of the Tweet and an innuendo meaning by reference to extrinsic facts in these terms:
“The meaning of the paragraph in its natural and ordinary sense is that the Defendant raped and sexually assaulted the Claimant, then stalked and defamed her to cover it up. The reference to “other victims” means he committed other rapes and is a serial rapist.” (AmDef, para 107)
“The words … also bear an innuendo meaning that the Defendant abused the Claimant as part of a ritual cult involving Cabinet Ministers, MPs, Lords and Judges” (AmDef, para 109).
In her defence to the counterclaim, the Claimant has pleaded a bare denial that the words complained of bore the natural and ordinary meaning contended for by the Defendant (Claimant's Amended Reply, para 51). In respect of the innuendo meaning, the Claimant admits that she “has made claims of rape by a group”, but denies references to “ritual abuse” or “Dolphin Square”; and she denies that the extrinsic facts pleaded by the Defendant support the innuendo meaning complained of. Although the Claimant has denied the words of her Tweet bear the meanings pleaded by the Defendant, she has not pleaded what meaning(s) she contends the words complained of bear.
The Claimant denies that the Tweet caused or was likely to cause serious harm to the Defendant's reputation (Claimant's Amended Reply, para 57). The Claimant has not pleaded any defences to the counterclaim. Most notably, in amending her defence to the counterclaim, the Claimant has removed her previous averment (albeit in a bare form, unsupported by particulars) of “ defences of truth, honest opinion, set off of the original claim and the privilege of responding to attack” (original “Reply to Defence & Counterclaim”, para 86). No defence of truth is pleaded and the Claimant has expressly chosen not to plead to para 110 of the Defendant's counterclaim in which he “ denies the allegations and avers the Claimant deliberately made them up or in the alternative is mistaken and they are in any event false”, and repeats paragraphs 28–45 of his defence (AmDef, para 110).
D. Factual and procedural background
The Claim Form was issued by Ms Baker on 13 September 2018.
There then followed an exchange of pleadings as follows:
i) The Claimant served Particulars of Claim on 24 September 2018.
ii) The Defendant served his Defence and Counterclaim on 8 October 2018.
iii) Two days later, on 10 October 2018, the Defendant served a request for further information from the Claimant pursuant to CPR Part 18.
iv) The Claimant served a Reply to Defence and Defence to Counterclaim on 22 October 2018.
v) Also on 22 October 2018, the Claimant served a response to the Part 18 request. The vast majority of the Claimant's responses consisted of refusals to provide the information requested.
vi) On 6 November 2018, the Defendant...
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