Rachel Riley v Mike Sivier
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 16 November 2022 |
| Neutral Citation | [2022] EWHC 2891 (KB) |
| Docket Number | Case No: QB-2019-002452 |
| Court | King's Bench Division |
[2022] EWHC 2891 (KB)
THE HON. Mrs Justice Steyn DBE
Case No: QB-2019-002452
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
John Stables (instructed by Patron Law) for the Claimant
David Mitchell (instructed by George Green LLP) for the Defendant
Hearing dates: 18, 19 and 20 July 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 16 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
This is the judgment following a trial of a libel claim brought by the claimant, Ms Rachel Riley, against the defendant, Mr Mike Sivier. The claimant is a television presenter and the defendant is a blogger who runs a website called voxpoliticalonline.com (‘the Website’).
The claim concerns an article bearing the headline “ Serial abuser Rachel Riley to receive ‘extra protection’ – on grounds that she is receiving abuse” (‘the Article’) first published by the defendant on 26 January 2019, and which he continues to publish on the Website. The words complained of are set out in the Appendix to the judgment of Warby LJ in Sivier v Riley [2021] EWCA Civ 713, [2021] EMLR 22.
On 11 December 2019, Nicklin J determined that the words complained of in the Article mean:
“(1) The Claimant has engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year-old girl, conduct which has also incited her followers to make death threats towards her.
(2) By so doing, the Claimant is a serial abuser and has acted
(a) hypocritically: by complaining about being the victim of online abuse and death threats herself whilst at the same time committing serial abuse of someone who has in consequence herself now been subjected to death threats (but someone who, unlike the Claimant, cannot afford additional security protection);
(b) recklessly and irresponsibly: by provoking her followers to subject the 16-year-old to further abuse and harassment, including death threats; and
(c) obscenely.”
I shall refer to this as the ‘single meaning’.
Nicklin J also held that meaning (1) is a statement of fact, whereas meaning (2) is an expression of opinion, and the meaning as a whole is defamatory at common law.
The defendant sought to rely on three defences: (a) the defence of truth, pursuant to s.2 of the Defamation Act 2013 (‘the 2013 Act’), in respect of meaning (1); (b) the defence of honest opinion, pursuant to s.3 of the 2013 Act, in respect of meaning (2); and (c) the public interest defence, pursuant to s.4 of the 2013 Act, in respect of the whole meaning. Each of those defences was struck out by Collins Rice J on 20 January 2021: Riley v Sivier [2021] EWHC 79 (QB). Refusing permission to appeal in respect of the defences of truth and honest opinion, Arnold LJ observed that on analysis what the judge had done was to grant summary judgment dismissing the defences on the basis that they had no real prospect of success and there was no other compelling reason to permit the defendant to raise them; and there was no real prospect of the Court of Appeal reaching a different conclusion.
However, Arnold LJ granted permission to appeal against the order striking out the public interest defence and, on 14 May 2021, the Court of Appeal allowed the defendant's appeal, setting aside that part of Collins Rice J's order. Warby LJ observed that the appropriate course was for the public interest defence to be assessed at trial: Sivier v Riley, [2].
Consequently, the primary issues for determination in this trial have been whether the Article has caused or is likely to cause serious harm to Ms Riley's reputation, within the meaning of s.1 of the 2013 Act; and, if so, whether Mr Sivier has established a public interest defence to the claim pursuant to s.4 of the 2013 Act. If Ms Riley succeeds on liability, a further issue arises as to what sum should be awarded in damages. The defendant accepts that if the claim succeeds it would be appropriate to grant an injunction.
B. History of the proceedings
The claim form, attaching Particulars of Claim, was issued on 8 July 2019. On 25 October 2019, Saini J ordered a trial of preliminary issues concerning the meaning of the words complained of, whether they constitute statements of fact or opinion, and whether they defame the claimant at common law. That trial took place before Nicklin J on 11 December 2019 and resulted in the determinations to which I have referred in paragraphs 3.-above.
In compliance with the order of Nicklin J, the claimant served Amended Particulars of Claim on 16 December 2019. The defendant served a Defence on 29 January 2020. The appendix to the Defence set out 67 tweets on which the defendant relied.
On 4 June 2020, the claimant applied for an order:
“1. That the Defence be struck out in its entirety, alternatively that the following paragraphs of the Defence be struck out, on the grounds set out at paragraph 2 below:
1.1 the final sentence of §1;
1.2 §§8 to 35 inclusive;
1.3 §§48 to 50 inclusive.
2. The grounds for striking out the Defence in its entirety or alternatively striking out the paragraphs listed in paragraph 1 above are:
2.1 The defence of truth and its particulars are impermissibly and/or irrelevantly pleaded and disclose no proper defence.
2.2 The particulars of truth specified in the application notice do not allege primary facts in relation to the Claimant's conduct that are properly arguable, or are impermissible as not alleging primary facts at all, or are irrelevant, or seek to reverse the burden of proof, and ought not to have been pleaded.
2.3 The impermissible inclusion in the Defence at §1 and §50 of matters pleaded being neither related to the claim nor admissible as Burstein particulars. These ought not to have been pleaded.”
On 8 June 2020, Nicol J made directions for the hearing of the claimant's application, including a direction enabling the defendant to file and serve any evidence on which he wished to rely in opposition to the claimant's application by 22 June 2020. The defendant applied for permission to make some limited amendments to his defence, including the addition of four tweets relied on at paragraph 21.
Following a hearing on 11 December 2020, Collins Rice J gave the judgment to which I have referred in paragraph above on 20 January 2021. The order of 20 January 2021 struck out the defences of truth, honest opinion and publication on a matter of public interest. No order was made in respect of the claimant's alternative application for particular paragraphs or parts of paragraphs to be struck out. Collins Rice J considered the application to strike out each of the amended defences by reference to the defendant's draft amended defence. Having concluded that those defences fell to be struck out, the defendant's application for permission to amend (which did not affect the remaining aspects of his case) was dismissed.
The defendant appealed. On 22 February 2021, Arnold LJ granted permission on ground 1 by which the defendant challenged the striking out of his public interest defence and refused permission on grounds 2, 3 and 4 which challenged the striking out of the defences of honest opinion and truth, respectively, and the costs order. Accordingly, the defences of truth and honest opinion provided by sections 2 and 3 of the Defamation Act 2013 have been dismissed.
As I have said, on 14 May 2021, the Court of Appeal allowed the defendant's appeal, setting aside the order striking out the public interest defence. On the same date, the Court of Appeal made directions, including an order that:
“By 4pm on 23 June 2021 the Defendant do file and serve an Amended Defence. Such Amended Defence must not rely on sections 2 or 3 of the Defamation Act 2013. No permission is given to make any amendments other than the deletion of reliance on those defences. If permission to amend is to be sought an application must be made to the court of first instance.”
The defendant filed and served an Amended Defence (‘AmDef’) on 7 July 2021. In the Amended Defence, the defendant has retained the particulars that had been pleaded in support of the defences of truth and honest opinion on the basis that “ they are relevant to his defence of publication on a matter of public interest” (AmDef, §§4 and 37). In addition, about nine pages of material were added to the particulars in support of the public interest defence, and the original appendix of 67 tweets was expanded to incorporate an additional 176 tweets, bringing the total to 243 (including a few duplicates). No application for permission to amend was made but the claimant consented to the amendments, albeit maintaining that parts of the pleading were impermissible.
The claimant filed and served a Reply to the Amended Defence (‘Reply’) on 29 July 2021 (erroneously dated 29 January). In the Reply, the claimant asserted (among other matters) that the following parts of the Amended Defence are irrelevant and stand to be struck out: the final sentence of §1, §§27–35, the first two sentences of §45, the first sentence of §46, §§56–60 and §§70–72.
On 4 July 2022, the claimant's solicitor wrote to the defendant's solicitor inviting the defendant to agree to strike out the final sentence of §1 and §§70–72, as well as the corresponding paragraphs of the defendant's trial witness statement at §§20–21. The claimant's solicitor stated:
“The basis of our objection to these parts of the AmDef and the corresponding parts of your client's statement is that they are impermissible pleading of – and witness evidence as to – allegations not complained...
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