Mr William Hay v Ms Nina Cresswell
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 26 April 2023 |
| Neutral Citation | [2023] EWHC 882 (KB) |
| Docket Number | Case No: QB-2020-003856 |
| Court | King's Bench Division |
[2023] EWHC 882 (KB)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: QB-2020-003856
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr B Coulter (instructed by TT Law Ltd) for the Claimant
Mr J Price (instructed by Bindmans LLP) for the Defendant
Hearing dates: 20 – 24 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Wednesday, 26 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Mr Hay brings a claim for libel against Ms Cresswell in relation to her June and July 2020 publication of allegations that he had sexually assaulted her on the night of 27 – 28 May 2010 after the two had met in a nightclub in Sunderland.
Whilst there is some dispute about the precise meaning of the defendant's publications, it is accepted that she alleged a violent sexual assault on the part of the claimant and that these words bore a defamatory meaning. It is also admitted that the claimant sustained serious harm. However, Ms Cresswell relies upon defences of truth and/or that the publications were on a matter of public interest. To a more limited extent she also relies upon a defence of qualified privilege.
The claimant is a tattoo artist. He says that the publications caused him great embarrassment, distress and damage to his reputation. He seeks general damages and also injunctive relief. A claim for aggravated damages is not pursued and no claim is made for financial loss.
The publications that form part of the claim are as follows:
i) On 4 June 2020 the defendant published a blog on the telegra.ph website (“the telegra.ph publication”);
ii) On 29 June 2020 the defendant contacted the claimant's girlfriend and business partner, Emma Sweeney, by way of a Facebook message, attaching the telegra.ph publication (“the FB message publication”);
iii) On 3 July 2020 the defendant emailed Ms Sweeney (“the email publication”)
iv) On 22 July 2020 the defendant published two posts on Facebook (“the FB posts publications”);
v) On 22 July 2020 the defendant published a post on Instagram and shared the post to an Instagram story (“the Instagram publications”).
The Amended Particulars of Claim also relied upon the defendant's Twitter post of 22 July 2020. However, this post did not name the claimant and the pleading did not rely upon extraneous material from which it was said that the claimant would have been identified as its subject. During the course of the trial, Mr Coulter indicated that he did not pursue the claim in relation to this post.
The defendant says that her primary intention in publishing these materials was to alert women who could otherwise become victims of sexual assault at the hands of the claimant, in particular in the context of his work as a tattooist. In summary, she says that in May 2010, when she was a 20 year old student, she met the claimant in ‘Passion’ nightclub, via a mutual friend, Richard Beston, and that he seriously sexually assaulted her as he was walking her home.
Further or alternatively, the defendant relies upon the defence in section 4 of the Defamation Act 2013 (“the 2013 Act”) that the publications complained of were or formed part of statements on a matter of public interest and she reasonably believed that publishing them was in the public interest, given that she reasonably believed the claimant had assaulted her and given the prevalence of sexual abuse within the tattoo industry and the need to protect women from this.
In relation to the FB message publication and the email publication only, the defendant also avers that the publications are protected by qualified privilege as she had a duty to communicate these matters to Ms Sweeney as the claimant's employer or business partner, and Ms Sweeney had a duty to receive them, given the claimant would routinely come into intimate contact with unaccompanied female clients in the course of his tattooing work.
The claimant does not admit that the defendant was sexually assaulted on her way home from the nightclub and he maintains that if such an assault occurred, he was not the perpetrator and the defendant's allegation in this regard is a deliberate fabrication on her part. Accordingly, he says that her truth defence and her public interest defence must fail. Furthermore, that the publications to Ms Sweeney were not on occasions of qualified privilege and, in any event the defence fails as the defendant acted maliciously in publishing knowingly false allegations.
Accordingly, the disputed issues for the court to resolve are:
Defamatory meaning:
i) The natural and ordinary meaning of the words used;
Truth defence:
ii) Whether the defamatory sting of the publications complained of was substantially true;
Publication in the public interest defence:
iii) Whether each of the publications complained of were statements on a matter of public interest or formed part of such statements;
iv) If so, whether the defendant believed that publishing them was in the public interest; and
v) If so, whether that belief was reasonable;
Qualified privilege defence (FB message publication and email publication only):
vi) Whether the defendant had a duty to communicate those statements to Ms Sweeney;
vii) Whether Ms Sweeney had a corresponding interest in receiving them;
viii) If so, whether the publications were made maliciously
If liability is established:
ix) What compensation should be awarded by way of general damages;
x) Whether the court should grant an injunction to prevent the defendant from repeating the defamatory allegations complained of and/or requiring her to remove publications that can still be accessed.
Mr Price accepted that if the truth and the publication in the public interest defences succeeded, then there was no utility in the court determining the qualified privilege defence.
The parties agree that the central question for the court is whether or not the defendant has proved the sting of her allegation that she was violently sexually assaulted by the claimant in 2010. In this regard the court is faced with the parties' starkly opposing accounts, which, on the way they put their respective cases, leaves little room for the possibility of mistake or misunderstanding as the explanation for this divergence.
Unsurprisingly in the circumstances, the claimant and the defendant were the central witnesses that I heard from during the trial. In addition, the claimant called Richard Beston and Joe Jackson, who were friends and fellow tattooists who he was with at Passion nightclub on 27 – 28 May 2010. The claimant also relies upon statements from Ms Sweeney, Marcus Maguire and Daniel Kelly. These statements primarily address the effect that the publications had upon Mr Hay. The defendant called Gillian Cresswell, her mother; Michael Cormack, who was one of her flatmates in May 2010; and Marie Casey, who was at Passion nightclub on the evening in question and exchanged messages with her in the aftermath.
The structure of this judgment is as follows:
• The legal framework: paras 15 – 57;
• The publications: paras 58 – 69;
• The pleadings and the course of the proceedings: paras 70 – 91;
• The trial: paras 92 – 97;
• The natural and ordinary meaning of the words used: paras 98 – 100;
• The undisputed facts and circumstances: paras 101 – 153;
• The truth defence: discussion and conclusions: paras 154 – 198;
• The public interest defence: discussion and conclusions: paras 199 – 214;
• Overall conclusions and outcome: paras 215 – 217.
The legal framework
Apart from the application of the presumption of regularity (paras 47 – 57 below), the parties are agreed on the applicable legal principles.
In relation to each of the publications relied upon, it is necessary for the claimant to establish that the defendant was responsible for their publication, that the statements referred to him and that they were defamatory. The first two of these propositions are not in issue in this case. Whilst there is some dispute as to the meaning of the words used, the defendant accepts that either meaning is defamatory.
Defamatory meaning
A statement will be defamatory at common law if, in its natural and ordinary meaning, it substantially affects in an adverse manner the attitude of other people towards the claimant or has a tendency to do so: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985, para 95.
The judgment of Nicklin J in Koutsogiannis v The Random House Group Ltd [2020] 4 WLR 25, paras 11 – 12, summarises how the court determines the meaning of allegedly defamatory words. I will summarise the key points for present purposes. The court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words to bear. This hypothetical reasonable reader is not naïve but nor is he unduly suspicious. The publication must be read as a whole and the context may give words a more (or less) serious defamatory meaning. No evidence beyond the publication complained of is admissible in determining the natural and ordinary meaning of the words.
Section 1 of the 2013 Act 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”. Serious harm is not in issue in this instance.
Truth
The statutory defence of truth under section 2(1) of the 2013 Act is made out if the defendant can show that the imputation conveyed by the statement complained of is...
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