Samuel Collingwood Smith v Esther Ruth Baker
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] EWHC 246 (QB) |
| Docket Number | Claim No: QB-2020-001013 |
| Court | Queen's Bench Division |
[2022] EWHC 246 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Griffiths
Claim No: QB-2020-001013
The Claimant in person
The Defendant in person
Determination on written submissions
THE HON.
This is the determination of three issues raised by the Counterclaim brought by the defendant (“Ms Baker”) against the claimant (“Mr Smith”) for defamation.
By para 6.1 of CPR Practice Direction 53B, at any time in a defamation claim the court may determine:
i) the meaning of the statement complained of;
ii) whether the statement is defamatory of the claimant at common law;
iii) whether the statement is a statement of fact or opinion.
I am determining these issues, by Order of Nicklin J dated 22 October 2021 (“the Nicklin Order”), and by consent, on the basis of written submissions which have been filed by the parties.
A statement of opinion may have a less defamatory tendency than a statement of fact, and so I will address issue (iii) (whether fact or opinion) before issue (ii) (whether defamatory) in line with the practice explained by Sir Geoffrey Vos MR in Corbyn v Millett [2021] EWCA Civ 567 at para 13.
The determination is in respect of eleven publications pleaded in the Counterclaim and identified in the Nicklin Order as follows:
i) 6 May 2019 publication (“the First Publication”). The 8 passages complained of are set out in para 9 of the Amended Counterclaim. The whole article, by way of context, is exhibited at Annex CC1 to the Amended Counterclaim.
ii) 8 May 2019 publication (“the Second Publication”). The 3 passages complained of are set out in para 38 of the Amended Counterclaim. The whole article is exhibited at Annex CC4 to the Amended Counterclaim.
iii) 30 May 2019 publication (“the Third Publication”). The 10 passages complained of are set out in para 52 of the Amended Counterclaim. The whole article is exhibited at Annex CC5 to the Amended Counterclaim.
iv) 25 June 2019 publication (“the Fourth Publication”). The single passage still complained of is set out in para 77 of the Amended Counterclaim. The whole article is exhibited at CC6 to the Amended Counterclaim.
v) 27 August 2019 publication (“the Fifth Publication”). The 11 passages complained of are set out in para 85 of the Amended Counterclaim. The whole article is exhibited at Annex CC7 to the Amended Counterclaim.
vi) 10 October 2019 publication (“the Sixth Publication”). The 4 passages complained of are set out in para 112 of the Amended Counterclaim. The whole article is exhibited at Annex CC8 to the Amended Counterclaim.
vii) 15 October 2019 publication (“the Seventh Publication”). The 2 passages complained of are set out in para 125 of the Amended Counterclaim. The whole article is exhibited at Annex CC9 to the Amended Counterclaim.
viii) 6 November 2019 publication (“the Eighth Publication”). The 6 passages complained of are set out in para 134 of the Amended Counterclaim. The whole article is exhibited at Annex CC10 to the Amended Counterclaim.
ix) 1 February 2020 publication (“the Ninth Publication”). The 8 passages still complained of are set out in para 153 of the Amended Counterclaim. The whole article is exhibited at Annex CC11 to the Amended Counterclaim.
x) 8 February 2020 publication (“the Tenth Publication”). The 4 passages complained of are set out in para 173 of the Amended Counterclaim. The whole article is exhibited at Annex CC12 to the Amended Counterclaim.
xi) 14 April 2020 publication (“the Eleventh Publication”). The 5 passages complained of are set out in para 186 of the Amended Counterclaim. The whole article is exhibited at Annex CC13 to the Amended Counterclaim.
The claimant (and defendant to the Amended Counterclaim) is the author of a law blog on the internet at matthewhopkinsnew.com under the pen-name ‘Matthew Hopkins – the Witchfinder General’. It describes itself as a blog which aims “to expose corruption and terrorise the guilty without worrying too much about due process” (Amended Counterclaim para 3). Both these points are admitted in para 8 of his Amended Defence to Counterclaim with the qualification that the quoted passage is a joke, to be read with a later passage saying: “We attempt to be responsible in this blog both before and after publication and contentious allegations are usually put to subjects well before articles go live. We will respond promptly and courteously to any complaint of defamation but the Witchfinder can and will defend himself robustly against vexatious defamation claims”.
I have approached the matter, as usual in these cases, by first reading each of the blog articles in question, paying particular attention to the passages complained of as I reached them, and forming my own first impression, before then considering the contentions of the parties, as set out in:
(a) the Amended Counterclaim,
(b) the claimant's response, in a written submission dated 5 November 2021,
(c) the defendant's reply, in a written submission dated 19 November 2021, and
(d) the claimant's subsequent written submission, dated 3 December 2021.
This allowed me to form a first impression on my own (as the hypothetical reasonable reader would), before turning to the arguments of the parties, and reaching my final decisions on what the passages mean, whether they are fact or opinion, and whether they are defamatory at common law.
The law
The legal principles are well established and may be drawn together from recent authority as follows.
Meaning
The court's approach to determining meaning is summarised from the authorities by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) at paras 11–13:
“11. 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 bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D–E, per Lord Diplock.
12. The following key principles can be distilled from the authorities: see e.g. Slim v Daily Telegraph Ltd 175F; Charleston v News Group Newspapers Ltd [1995] 2 AC 65, 70; Gillick v Brook Advisory Centres [2002] EWCA Civ 1263 [7]; Charman v Orion Publishing Co Ltd [2005] EWHC 2187 (QB) [8]–[13]; Jeynes v News Magazines Ltd & Anor [2008] EWCA Civ 130 [14]; Doyle v Smith [2018] EWHC 2935 [54]–[56]; Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) [66]; Simpson v MGN Ltd [2016] EMLR 26 [15]; Bukovsky v Crown Prosecution Service [2017] EWCA 1529 [2018] 1 WLR 18; Brown v Bower [2017] 4 WLR 197 [10]–[16] and Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB) [20]:
i) The governing principle is reasonableness.
ii) The intention of the publisher is irrelevant.
iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning).
13. As to the Chase levels of meaning, see Brown v Bower [17]:
“They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 [45] in...
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Samuel Collingwood Smith v Esther Ruth Baker
...were in issue. 32 I gave judgment on those points on 10 February 2022, having considered the written submissions: Smith v Baker [2022] EWHC 246 (QB) (“Griffiths 33 My judgment resulted in an Order dated 9 March 2022 (“the Griffiths Order”) which, as well as deciding the issues of meaning, ......