Richard (Raziel) Davidoff v Nicholas Hargrave
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 21 July 2023 |
| Neutral Citation | [2023] EWHC 1825 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2023-000774 |
[2023] EWHC 1825 (KB)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: KB-2023-000774
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
William Bennett KC (instructed by Patron Law Ltd) for the Claimants
Adam Speker KC and Samuel Rowe (instructed by Payne Hicks Beach LLP) for the Defendant
Hearing date: 4 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Friday 21 July by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The four claimants bring defamation proceedings in relation to: (a) the defendant's quote-tweet of 7 May 2022, in which he commented on a tweet from the Leasehold Knowledge Twitter account; and (b) the defendant's post that was published on 9 June 2022 below an article in The Negotiator from 11 May 2022 headlined “ Two estate agents apologise in court over online reviews about employer”. I will refer to the former as “the 7 May 2022 Tweet” and the latter as “the 11 May 2022 Post” as although the defendant's comment was made on 9 June 2022 this is the shorthand term that has been used by the parties.
The claim was issued on 2 February 2023. Particulars of Claim were served on 16 February 2023, having been amended before service. They were not prepared by Mr Bennett KC, who now appears for the claimants. I refer to the detail of this pleading (the “APC”) from paragraph 10 below. In relation to the 7 May 2022 Tweet, the claimants alleged that the words complained of referred to each of them (paragraph 9, APC). In support of this proposition, they contended that the hyperlink to an article on the Leasehold Knowledge website that was contained in the Leasehold Knowledge tweet formed part of the publication (paragraph 10, APC). In the alternative, the claimants relied upon a reference innuendo (paragraph 11, APC). As regards the 11 May 2022 Post, the APC accepted that only the first claimant was expressly referred to, but a reference innuendo was relied upon in respect of the other claimants, as set out at paragraphs 8.1 and 8.2 of the pleading.
By application notice filed on 17 April 2023, the defendant applied to strike out paragraphs 8.1, 8.2 and 11 of the APC (“the Strike Out Application”). He also applied for a determination of the following preliminary issues: (a) whether the words complained of at paragraphs 4 and 7 of the APC referred to the claimants or each of them; (b) the natural and ordinary meaning(s) borne by the words complained of at paragraphs 4 and 7, APC; (c) whether the words complained of, in the meanings, found, are defamatory of each of the claimants at common law; and (d) whether the statements complained of are statements of fact or expressions of opinion (“the Preliminary Issues Application”).
By order dated 20 April 2023, Nicklin J directed that the Preliminary Issues Application and the Strike Out Application be listed for a half day hearing (“the Nicklin Order”). These applications were duly listed before me on 4 July 2023. The Reasons accompanying the Nicklin Order included the following:
“(B) The issue of reference is not straightforward, and needs careful consideration before directions for the issue to be resolved as a preliminary issue. Logically, the Strike Out Application needs to be dealt with first, because it affects the parameters of the Preliminary Issues Application. Separately and additionally, I understand the appeal from my decision in Dyson v Channel Four Television Corpn [2023] EMLR 5 is being heard by the Court of Appeal on 27 June 2023.
(C) At the moment, I consider that the Preliminary Issues Application should be dealt with once the Strike Out Application has been determined, but they will be listed to be heard together.”
In Dyson v Channel Four Television Corpn [2022] EWHC 2718 (KB), [2023] EMLR 5 (“ Dyson”), the case referred to, Nicklin J had indicated that caution should be exercised before the court directed disputed issues of reference to be determined as a preliminary issue, given that an investigation of the evidence and findings of fact may be required, which may not be suitable for disposal at that stage. He observed that if reference was to be determined as a preliminary issue “the parameters must be spelled out very clearly and the cost/benefit analysis considered carefully” (paragraphs 57 and 58). The Judge had already indicated that it was inappropriate and unwise to embark upon determining the natural and ordinary meaning of the words used and whether they were defamatory at common law and fact or opinion before then, as without establishing reference the second and third claimants had no cause of action and their claim was hypothetical and unclear (paragraph 56).
Consideration of the skeleton arguments in advance of the 4 July 2023 hearing, indicated that the parties had proceeded on the basis that Nicklin J had listed a preliminary issues trial of the four issues identified at (a) – (d) of the defendant's application. This was erroneous. For the reasons he had identified, the Judge had listed the defendant's application for a trial of the preliminary issues to be considered by the court, envisaging that the Strike Out Application would be heard first.
In the circumstances, I raised the scope of the hearing with counsel at the outset. After giving them an opportunity to take instructions and to discuss the matter, it was agreed that the court would hear oral submissions on: (a) the Strike Out Application; and (b) a discrete point of law which I identify in the next paragraph. In the event, submissions on these matters lasted the remainder of the morning. I indicated that I would reserve judgment. I did not consider that there was value in hearing submissions on the Preliminary Issues Application before I had determined those matters, as there were too many hypothetical possibilities in play which counsel would need to address. I indicated that I would give counsel an opportunity to take stock and to make written submissions on consequential directions and the Preliminary Issues Application after seeing my judgment; and that after considering those submissions, I would decide whether a further hearing was required before the Preliminary Issues Application could be resolved.
The discrete point of law which the parties agreed I should resolve at this stage was formulated with counsel, as follows: “Are the parties permitted to adduce evidence regarding the defendant's followers in relation to the question of whether the hypothetical reasonable reader would click on the hyperlink in the 7 May 2022 Tweet” (“the Point of Law”). This has a potential bearing on the Preliminary Issues Application, in as much as if this was a point upon which evidence could be adduced (as the claimants submitted), the question of whether the hypothetical reasonable reader would click on the link to the article on the Leasehold Knowledge website, so that it was a part of the publication, would be a matter for factual evidence at trial and not one likely to be suitable for resolution at a preliminary stage in any event.
After referring to the pleadings, I will address, firstly, the Point of Law and then the Strike Out Application.
The parties' pleaded cases
The Amended Particulars of Claim
Paragraph 1 of the APC states that the claimants are family members who are engaged in the business of commercial and residential property sales, lettings and leasehold management through a group of companies collectively known as ABC Estates, which is “a family run business”. The first and second claimant are husband and wife; and the third and fourth claimants are their adult daughters. The claimants live in Hendon, north west London “and are orthodox Jews active in the Jewish community based in and around the Edgware and Hendon areas of north London. ABC Estates has offices in Mayfair, Hendon and Edgware and conducts business across Greater London”.
Paragraph 2 of the APC describes the defendant as the co-founder of a public affairs and government relations consultancy and a former special adviser to the Conservative Prime Ministers David Cameron and Theresa May. He operates the Twitter account @NIHargrave which the pleading says had around 4,500 followers at the material time. He is also said to be a contributor to the website www.leaseholdknowledge.com, which “writes articles about issues arising in leasehold properties and purports itself to be campaigning for leasehold reform”.
Paragraph 3 of the APC sets out the background relied upon by the claimants. It is said that in 2019 – 2020 the claimants and ABC Estates were the subject of a large number of defamatory reviews posted on Google, which were written under fictitious names by people falsely claiming to be unhappy customers. The claimants established the identity of two of the posters as Messrs Doshi and Govan and issued proceedings for libel against them in March 2021. Messrs Doshi and Govan issued an application for strike out and/or summary judgment which was dismissed by Deputy Master Yoxall on 17 December 2021. The proceedings were later compromised and on 9 May 2021 there was a statement in open court in which each of these defendants accepted the allegations were false and apologised for the same.
Paragraphs 4 and 5 of the APC address the 7 May 2022 Tweet. It is said that at 8.21 am on 7 May 2022, the defendant published on Twitter a quote-tweet from @LKPleasehold, to which he had added his own commentary. The pleading continues (with an erroneous reference to “2021” rather than...
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