Julie Bindel v PinkNews Media Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 07 July 2021 |
| Neutral Citation | [2021] EWHC 1868 (QB) |
| Docket Number | Case No: QB-2020-002650 |
| Court | Queen's Bench Division |
[2021] EWHC 1868 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2020-002650
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Heather Rogers QC and Chloe Strong (instructed by Schillings International LLP) for the Claimant
Catrin Evans QC and Ben Silverstone (instructed by Wiggin LLP) for the Defendants
Hearing date: 26 May 2021
Approved Judgment
I direct 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 Mr Justice Nicklin
The issue before the Court is the circumstances in which the Court should order a trial of preliminary issues in a defamation claim.
The Claim
The Claimant describes herself in her claim form as a high-profile lesbian radical feminist, journalist, author, and broadcaster. The First Defendant is the publisher of the website PinkNews. The Second Defendant is the Chief Executive of the First Defendant.
On 17 May 2020, an article was published on PinkNews under the headline: “ The ‘gender critical’ feminist movement is a cult that grooms, controls and abuses, according to a lesbian who managed to escape” (“the Article”). It is not necessary, for the purposes of this judgment, to set out the text of the Article.
The Claim Form was issued on 29 July 2020 with Particulars of Claim following on 13 August 2020. By consent, the Particulars of Claim were amended on 10 December 2020. The Claimant was not named in the Article. Nevertheless, the Claimant contends that she would have been identified by at least some of the readers of the Article. She complains that the Article defames her both in its natural and ordinary meaning and by way of innuendo. It is not necessary to set out passages from the Amended Particulars of Claim in this judgment. It suffices to summarise that the Claimant's case on reference is set out in Paragraph 7. Paragraph 8 sets out five meanings that the Claimant contends the words complained of bore by way of natural and ordinary and/or innuendo meaning. Paragraph 9 sets out facts relied upon by the Claimant “ in support of the meanings the Claimant contends the words complained of bear”. Paragraph 10 advances a further innuendo claim.
The Defendants have not yet filed a Defence. Instead, by a series of agreed extensions of time, the parties have postponed the time for service of the Defence. They did so whilst they explored the possibility of seeking the determination of meaning (and associated matters) as preliminary issues. With the benefit of hindsight, it is at this point that the parties should have sought to engage with the Court. Although parties are encouraged to cooperate in the early identification of issues and the best way of resolving them, case management is ultimately a matter for the Court. If the parties delay the service of the Defence, this also postpones the point at which the Court gets the opportunity to manage the case, and importantly to budget the costs, at the Case Management Conference. As will become clear, it has taken the best part of 9 months for the Court to get its first opportunity to manage this case. By which time, the parties had already spent over £ 1/2m on costs. This should not have happened.
In their letter of 16 September 2020, the Defendants' solicitors proposed that the Court be invited to direct the trial of preliminary issues of meaning (both natural and ordinary and innuendo), whether the words complained of referred to the Claimant, whether the words complained of made an allegation of fact or made (or contained) an expression of opinion and whether the meaning(s) found by the Court were defamatory at common law. Recognising that the preliminary issues would potentially require resolution of disputed facts, the Defendants' solicitors proposed that the Court be invited to resolve the issues based on various “ deemed facts”. Although contending that resolution of the preliminary issues in the Defendants' favour would be likely to lead to the dismissal of the Claimant's claim, the Defendants held out the prospect that, were the preliminary issues resolved against the Defendants, they “ would be likely to consider making an offer of amends”.
The Claimant's solicitors were not attracted by this proposal, not least because they complained that the Defendants were seeking, by their proposed “ deemed facts”, to “ pick and choose” from the Claimant's case. They also noted that the Defendants had not proposed that serious harm should be tried as a preliminary issue. This was recognised to be sensible – considering various observations by the Court about the unsuitability of serious harm to be tried as a preliminary issue – but leaving serious harm out of the preliminary issues risked there being an overlap of evidence and witness testimony at the trial of the preliminary issues on the issue of innuendo and reference and any subsequent trial of serious harm to reputation and damages. From the stance adopted by the Defendants to the claim, the Claimant's solicitors anticipated that serious harm was an issue likely to be disputed by the Defendants.
Correspondence between the parties continued and led, ultimately on 1 December 2020, to the Defendants providing to the Claimant a document headed “ Defendants' Statement of Case on the Issues of Reference and Meaning” (“the Defendants' SoC”). The reason that the Defendants provided this document – instead of filing a conventional Defence – was an attempt to preserve the Defendants' ability to make an offer of amends under ss.2–4 Defamation Act 1996. Under s.2(5), an offer of amends cannot be made after serving a Defence.
The Defendants' SoC is a substantial document. It consists of 18 pages accompanied by a further 300 pages of documents in 3 Annexes. In it, the Defendants denied that the words complained of in the Article referred (or would be understood to refer) to the Claimant. One of the principal bases on which the Defendants dispute the Claimant's contention that identified third parties had understood the words to refer to her was that these individuals had not read the Article, but had instead been influenced by commentary on it by other third parties. The Defendants denied that the words complained of bore the meanings advanced by the Claimant, whether in their natural and ordinary meaning or by innuendo, and they denied that the words complained of bore any meaning defamatory of the Claimant. Further, as anticipated by the Claimant's solicitors, the Defendants' SoC denied that the publication caused or was likely to cause serious harm to the Claimant's reputation or that it had caused any upset or distress to the Claimant. Finally, the Defendants relied on the fact that, on 18 May 2020 (the day after publication of the Article), the Claimant had herself published a Tweet indicating that she was the subject of the Article. On any view, the Defendants' SoC, whilst not, at that stage, advancing any substantive defence to the Claimant's claim or the Defendants' case on the issue of damages (should it arise), comprehensively attacked every basis upon which it was brought.
The Claimant's solicitors remained unconvinced that a trial of the proposed preliminary issues was a sensible way of proceeding. They considered that the issues that would require resolution were too ambitious, having regard to the factual disputes that would require determination. In their letter of 18 December 2020, the Claimant's solicitors stated, in summary:
“This matter is not appropriate for a trial of preliminary issues (TPI). We recognise that a TPI can represent a practical, fair and efficient way of progressing many, perhaps most, defamation claims and that meaning is an issue which can generally be determined without the need for any evidence beyond the publication itself. The advantages of early determination of meaning have been stated by the courts and the position is well-known. The pitfalls, however, of ordering a TPI in unsuitable cases are also familiar and obvious, such that it can be a ‘treacherous shortcut’. Each case must be considered on its facts and circumstances and, for the reasons briefly outlined, a TPI is not appropriate in this case.”
The matters that the Claimant's solicitors considered rendered the case unsuitable for a trial of preliminary issues were the substantial disputes of fact that would have to be resolved and the need, therefore, for disclosure, witness statements and a trial at which it could be anticipated there would be a need for the witnesses to be cross-examined. They also questioned whether the expense and inconvenience of a trial of preliminary issues could be justified on the speculative basis that, if the issues were determined against the Defendants, they would consider making an offer of amends.
Matters were not resolved by agreement so, on 13 January 2021, the Defendants issued an Application Notice seeking the trial of the preliminary issues that they had previously canvassed. The Application was supported by a witness statement by the Defendants' solicitor, Caroline Kean. There was, however, a potentially important change in the Defendants' position. In her witness statement, Ms Kean confirmed that, if the Claimant succeeded on the preliminary issues, the Defendants “ will not substantively defend the claim”. Although not stated in terms, this suggested that, if the preliminary issues were resolved against the Defendants, they would make an offer of amends.
The Application Notice came before me on the papers on 19 January 2021 for directions. I directed that the Application be fixed for a hearing, and set a timetable...
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