Stephanie Rebecca Hayden v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 11 March 2020 |
| Neutral Citation | [2020] EWHC 540 (QB) |
| Date | 11 March 2020 |
| Docket Number | Case No: QB-2019-000557 |
| Court | Queen's Bench Division |
[2020] EWHC 540 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: QB-2019-000557
The Claimant appeared in person
Alexandra Marzec (instructed by ACK Media Law) for the Defendant
Hearing date: 3 March 2020
APPROVED JUDGMENT
Introduction
The Claimant has sued the Defendant for libel and harassment. I am only concerned with the libel claim. The claim is based on an article published by the Defendant in the Mail on Sunday on 10 February 2019 and on the website Mailonline on the same day. The articles are the same except for (a) a longer heading in the online article; (b) bullet points under the heading in the online article, which do not appear in the hard copy; (c) the captions in the photographs. Neither side contends these slight differences are relevant to the issues before me. They are agreed that in all material respects the two articles are the same and so I will refer to them as ‘the Article’.
In summary, the Article reported on the arrest by the police of a Hertfordshire woman called Kate Scottow for harassment and malicious communications arising out of things which she had posted online about the Claimant, who is a transgender woman. Mrs Scottow was arrested following a complaint to the police by the Claimant.
This is a trial of meaning. Pursuant to an order dated 12 November 2019 the issues to be tried are:
(1) Whether the Article bears the meanings pleaded in [25] of the Amended Particulars of Claim (APOC) in respect of the Mail on Sunday version and [29] in respect of the Mailonline article, and if not, what meanings each of the articles had.
(2) Whether such meanings are defamatory at common law.
(3) Whether any such defamatory meanings is/are a statement of opinion.
(4) If so, whether the Article indicates in general of specific terms the basis of the statement of opinion.
At the hearing Ms Marzec for the Defendant did not pursue issues (3) and (4) and so I am only concerned with (1) and (2).
Application to recuse
At the outset of the hearing the Claimant made an application that I should recuse myself because of some of the things I said in R (Miller) v College of Policing and another [2020] EWHC 225 (Admin), which I handed down on 14 February 2020. She said that a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias: Porter v Magill [2002] 2 AC 357, [103] (apparent bias). The Claimant explicitly did not submit that I was actually biased.
Miller concerned a judicial review challenge by a man called Harry Miller in relation to tweets he had posted on Twitter about transgender issues. Following a complaint by a transgender woman called Mrs B that what he had written was ‘transphobic’, Humberside Police recorded his tweets as a non-crime hate incident under the College of Policing's Hate Crime Operational Guidance (HCOG). An officer visited Mr Miller's workplace and then warned him about the risks of prosecution if he continued to tweet or ‘escalated’, a warning which the police subsequently repeated. Mr Miller challenged HCOG as being unlawful at common law and under Article 10 of the European Convention on Human Rights. He also challenged the police's treatment of him as being a disproportionate interference with his right of freedom of expression under Article 10.
In my judgment I rejected Mr Miller's challenge to the lawfulness of HCOG. However, I went on to hold that the police's actions had had a chilling effect of his right of freedom of expression and had been a disproportionate and unlawful interference with his Article 10 rights.
The specific paragraphs of my judgment which the Claimant said gave rise to apparent bias are [17], [250], [271], [280], [281]. I will not set them out, but the reader is referred to them. Put shortly, the Claimant said that these paragraphs show that I hold gender critical views such that a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that I cannot judge this trial of meaning fairly, given the context is a complaint by the Claimant to the police relating to her transgender status. She said that Graham Linehan, a well-known comedy writer and comedian, had made a witness statement in Miller that was critical of her.
Whilst the Claimant was entitled to raise the matter, I was clearly of the view, as I indicated at the hearing, that there was no proper basis to recuse myself, and I refused the application. None of the paragraphs relied upon by the Claimant show that I hold any views one way or the other on transgender rights and in [17] I was at pains to say so. In the later paragraphs I merely referred to the strength of the debate on the topic; that the term ‘transphobic’ is used by some to describe those on a different side of the debate who are not, in fact, transphobic; and that some of Mrs B's evidence in Miller had been overstated. None of these issues has any bearing on what I have to decide on this trial of meaning. Mr Linehan's statement was not relied upon by any party in Miller and it played no part in my decision.
On behalf of the Defendant, Ms Marzec referred me to Locabail (UK) Limited v Bayfield Properties Limited [2000] QB 451, [25], which made clear that save in special circumstances previous judicial pronouncements will not provide a proper basis for recusal (emphasis added):
“25. It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history, nor that of any member of the judge's family; or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers (see KFTCIC v Icori Estero SpA (Court of Appeal of Paris, 28 June 1991, International Arbitration Report, vol. 6, 8/91)). By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.”
Ms Marzec also referred me to the recent judgment of Fraser J in Bates v Post Office Limited [2019] EWHC 871 (QB), [29]–[30], [35]–[36], [41], where the relevant cases are summarised. At [30] the judge referred to the judgment of the Court of Appeal in Otkritie v International Investment Management Limited v Urumov [2014] EWCA Civ 1315, [13], where Longmore LJ said (emphasis added):
“The general rule is that he should not recuse himself, unless he either considers that he genuinely cannot give one or other party a fair hearing or that a fair minded and informed observer would conclude that there was a real possibility that he would not do so … there must be substantial evidence of actual or imputed bias before the general rule can be overcome. All of the cases, moreover, emphasise that the issue of recusal is extremely fact-sensitive.”
There is no such evidence in this case. I accepted Ms Marzec's submission on behalf of the Defendant that I should not recuse myself and that the application had no merit. She pointed out that the Claimant was not a party in Miller; that she was not involved in the factual...
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Stephanie Rebecca Hayden v Associated Newspapers Ltd
...claim for defamation was dismissed, on 11 March 2020, after a ruling that the article bore no meaning defamatory of the Claimant (see [2020] EWHC 540 (QB)). The Claimant was ordered to pay the Defendant's costs. On 26 May 2020, the Claimant's claim was stayed by a Tomlin Order following a ......