Hemming v Poulton (No. 1)

The Deputy Master refused the Claimant's application for summary judgment and largely refused strike-out of the Defence and Counterclaim. Key legal principles applied were the summary judgment/strike-out tests under CPR r.24.2 and r.3.4, the defamation statutory defences in the Defamation Act 2013 (truth, honest opinion and public interest under ss.2–4) and the statutory threshold of serious harm in s.1. The court held that the defendant had a real prospect of defeating the Claimant's pleaded meanings by showing that her words were journalistic reporting rather than adoption of the third party's allegations, and that questions of responsibility for publication, public interest and data-protection defences (including the DPA 2018/GDPR exemptions for journalism) were fact-sensitive and not suitable for summary disposal. The defendant was given permission to amend parts of her Defence, but discrete parts of the proposed pleadings (certain truth particulars and the honest-opinion plea) were struck out as inapt or unnecessary.

The Claimant (former Member of Parliament) sued the Defendant (a journalist and filmmaker) for libel and breaches of the Data Protection Act 2018 / GDPR arising from parts of a recorded interview published on a third party's YouTube channel. The Defendant counterclaimed, and separately third and fourth parties were joined, for harassment under the Protection from Harassment Act 1997. The Claimant applied for summary judgment and/or strike-out of the Defence and Counterclaim; the Defendant applied to amend her pleadings.

The court identified the discrete issues: (a) meaning; (b) responsibility for extent of publication; (c) serious harm (s.1 Defamation Act 2013); (d) truth (s.2); (e) honest opinion (s.3); (f) public interest protection (s.4); (g) DPA/GDPR issues including whether the defendant was controller/processor and whether journalistic exemptions applied; and (h) the harassment counterclaim under the Protection from Harassment Act 1997.

The Deputy Master summarised the factual background (the Claimant's prior public dispute with a complainant, the Defendant's documentary work including Paedophiles in Parliament, correspondence between the parties, and an interview video in which the Defendant discussed the complainant and the Claimant). On meaning the court found a real prospect for the Defendant to show the words were being reported and not adopted as true allegations (the repetition rule is contextual). On responsibility for publication the court held the Defendant showed a real prospect of defeating the pleaded allegation that she had editorial control of the host's publication. On serious harm the court concluded the factual circumstances (limited context of publication, existing publicity) were properly matters for trial and that the Defendant had real prospects on the s.1 threshold. The proposed substantial-truth plea was allowed only in relation to the narrower point that the Claimant had threatened legal action; pleadings asserting broader truth of the sexual allegation were rejected as irrelevant. The honest-opinion plea was struck out for failure to specify the imputation relied upon. On public interest, data protection and the DPA/GDPR issues, the court held these are fact-sensitive: the defendant had arguable grounds to rely on journalistic exemptions in the DPA/Schedule provisions and on the public-interest defence in s.4, and summary disposal was inappropriate. Finally, on the harassment counterclaim the court held the pleaded course of conduct against the Claimant could properly be considered harassment and was not suitable for summary determination.

Outcome on the applications: the Claimant's summary judgment/strike-out applications were refused (with limited strike-out of some pleaded particulars), and the Defendant's amendments were permitted in large part. The judgment explains that many contested issues raise factual questions for trial, including meaning, publication responsibility, public-interest reasonableness and DPA/GDPR exemption application.

First instance: The Claimant's application for summary judgment and for strike-out was refused. The court concluded the Defendant had a real prospect of defeating the libel claim on meaning, publication responsibility, serious harm and public-interest grounds; the data-protection defence raised fact-sensitive issues (controller/processor and journalistic exemptions) unsuitable for summary determination; and the harassment counterclaim raised factual questions for trial. The Defendant was allowed to amend most of her Defence, but certain particulars of truth (irrelevant allegations) and the honest-opinion plea (defective for failure to particularise the imputation) were struck out or disallowed.