James Wilson v James Mendelsohn
| Jurisdiction | England & Wales |
| Judge | Master Davison |
| Judgment Date | 09 February 2023 |
| Neutral Citation | [2023] EWHC 231 (KB) |
| Docket Number | Case No: QB-2021-002673 |
| Court | King's Bench Division |
[2023] EWHC 231 (KB)
Master Davison
Case No: QB-2021-002673
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gervase de Wilde (instructed by Direct Access) for the Claimant
Ms Beth Grossman (instructed respectively by 3D Solicitors and Patron Law) for the First and Third Defendants
Hearing dates: 17th January 2023
Approved Judgment
I begin with a narrative which is substantially taken, with gratitude, from the judgment of Mr Richard Spearman KC dated 30 March 2022 in which he tried a preliminary issue as to meaning. (The neutral citation of the judgment is [2022] EWHC 715 (QB).)
The claimant is a part-time law lecturer at Sheffield Hallam university and a non-practising solicitor. He operates the Twitter account @per_incuriam. The first defendant is a law lecturer at the University of the West of England. Until his untimely death, the second defendant was a lecturer in the Humanities Department of Northumbria university. The third defendant is a former restaurateur. Each of the defendants operates (or operated) a Twitter account: @jmendelsohn77; @petenewbon; @eddycantor. The defendants followed each other on Twitter. The first defendant and the claimant previously knew each other personally through working together at the University of Huddersfield.
This is a claim for libel, misuse of private information, harassment, and breach of data rights in large part concerning a Facebook post which was originally published on or about 3 December 2018 (“the Facebook Post”). The author and original publisher of the Facebook Post was the mother of a child at a primary school. The claimant was the father of a child at the same school. It came into being following interaction between her and the claimant outside the school. The identity of the mother and the name of the primary school are irrelevant to the issues which arise in these proceedings. I have therefore anonymised the mother as “Ms K” and I have omitted the name of the school.
The Facebook Post comprised a photograph of the claimant, apparently taken by Ms K, together with the following text, which appeared underneath that photograph:
“Does anyone have any idea who this weirdo is, think he is from the Birkby area in Huddersfield, I was dropping my daughter off at … Junior school this morning, he has approached me by banging very hard on my car window asking me to turn my car engine off, I replied i am in the drop off zone its raining heavily the windscreen is getting steamed up, i was literally park up for a few minutes, this weirdo then had the nerve to take pictures of my car, of me, and my Daughter, he was very rude and i took a picture of him so that i could inform other parents and the school that this freak takes kids pictures. This is harassment he has my Daughters picture in his phone, I am fuming, I want to find out who he is, please share and help me find out who he is. Thanks.”
The photograph which accompanied these words was taken in daylight and shows a man (the claimant) facing directly at the camera. He is wearing a short double-breasted navy blue coat which is fully buttoned up, pointing his right arm and hand at roughly shoulder height towards his right hand side, and holding the handles of a shopping bag or small item of luggage in his left hand. The expression on his face seems in keeping with the gesture and suggests that he is making a point or possibly rebuking someone. Around his neck he has what appears at first glance to be a scarf, or the collar of some inner garment, which is predominantly light grey or white in colour, but which can be seen on closer inspection to be a supporting neck brace or collar. Behind him are a wall, a lamppost or similar post bearing what looks like a camera sign, and several trees.
Some 20 months later, on or about 12 August 2020 and 13 August 2020, the Facebook Post was republished as part of a Twitter thread to which the claimant had become a party. The thread concerned antisemitism, the state of Israel and criticism of Israel by the left and it began with the second defendant “quote-tweeting” a tweet on this topic. The claimant entered the conversation with the observation: “You are of course free to engage in a robust defence of the conduct of the Israeli state. But you have to accept that others can engage in robust criticism of the Israeli state?”. He linked an article about Israel in the London Review of Books by Sir Stephen Sedley. The claimant's participation in the conversation was not welcomed and there followed a Twitter “spat” in which the other participants (including the second defendant) castigated his stance and his reference to and reliance on the LRB article (which he repeatedly re-posted). There came a time, about an hour into the conversation, when the claimant pointed out that Sir Stephen Sedley was Jewish and had experienced antisemitism and was therefore entitled to define it. He twice suggested that this was a heavy blow to the position adopted by the second defendant. It was at this point, or shortly afterwards, that the second defendant posted the screenshot of Ms K's Facebook Post (“the screenshot”) with the caption or message: “I see yer Da is doing ‘community watch’ again”. He went on to post it a further three times with the messages: “‘this freak takes pictures of kids’ apparently”; “Indeed. Quite so. As when this mother described the man who allegedly photographed her children as a ‘freak’ – for instance. One much (sic) uphold her right to free expression in what sounds like a situation of harassment”; and “Ranting at people is so unattractive, don't you think, eh?”
In addition, as part of a separate thread which began on 13 August 2020 with the observation: “You do appear to follow Jews around the internet with the sole purpose of poking them”, the third defendant, on 15 August, published a Tweet comprising a screenshot of the Facebook Post together with the following message: “Define weird”. This Tweet remained live until around 19 April 2021.
The second defendant came to have the screenshot of the Facebook Post because it had been sent to him by the first defendant as part of a conversation conducted between them by direct message on Twitter. The conversation was in July 2020. It was about the claimant and was couched in derogatory language. It included the first defendant telling the second defendant about a workplace complaint that had been made against the claimant when they (the claimant and the first defendant) were working in the same department. The Facebook Post itself had been taken down by Ms K on about 4 December 2018 after she was asked to delete it by an officer from West Yorkshire Police. But in the meantime it had come to the first defendant's attention and he had made a screenshot of it. He provided the screenshot to the second defendant with the intention (as the claimant alleges) of the second defendant using it as ammunition against the claimant.
The Claim Form was issued on 6 July 2021. Particulars of Claim were served with the Claim Form. On 22 November 2021, and by consent, I directed the trial of the following preliminary issues: (a) the natural and ordinary meaning(s) of the Facebook Post and each of the Tweets complained of in the claimant's claim for libel; and (b) in respect of each publication complained of (i) whether each meaning found is defamatory of the claimant at common law; (ii) whether it made a statement of fact or was or included an expression of opinion; and (iii) insofar as it contained an expression of opinion, whether, in general or specific terms, the basis of the opinion was indicated. I further directed that, by 4.30pm on 20 December 2021, each defendant should file and serve a written notice of his case on each of the Preliminary Issues. The defendants duly complied with that direction.
On 15 January 2022, the second defendant sadly died. On his death, the claimant's cause of action in defamation against him abated, although the claimant's other causes of action against him survived against his estate. However, the claimant's pleaded case includes the contentions that the first defendant (a) is liable “as the ‘author’ of the Facebook Post for the purposes of section 10 of the Defamation Act 2013” in respect of each of the second defendant's Tweets identified above and also in respect of the third defendant's Tweet identified above and (b) is liable “in damages or compensation for the … reasonably foreseeable … republications” of each of those Tweets (see paragraphs 44.3 and 44.4 of the Particulars of Claim) and/or as an accessory who assisted the tortious conduct (see paragraph 44.5).
In these circumstances, by order dated 14 February 2022, Nicklin J directed (a) that the hearing of the trial of the Preliminary Issues should go ahead to determine the Preliminary Issues in relation to the claim against the first and third defendants, (b) that the remaining parts of the claimant's claim (being the non-defamation claims) against the second defendant should be stayed pending either an application to substitute personal representatives of the second defendant's estate or the filing of a notice of discontinuance, and (c) that the status of the claims against the second defendant's estate should be reviewed at the aforementioned hearing.
Thereafter, on 15 March 2022, the claimant and the second defendant's widow, acting in her capacity as executrix of the estate of the second defendant, entered into a Settlement Agreement. The main terms of that Agreement are (a) the Estate agrees to make a payment “in reflection of the claimant's legal costs of dealing with the consequences of [the second defendant's] death and the complexity of...
To continue reading
Request your trial