Arron Banks v Carole Cadwalladr

The claimant sued for libel in respect of a TED Talk and a tweet which alleged he had secretly taken foreign funding and lied about it. The defendant abandoned a truth defence and relied on the statutory public interest defence in section 4(1) of the Defamation Act 2013; the serious harm requirement in section 1(1) of the 2013 Act was in issue.

The Court of Appeal held that the section 1(1) threshold must be applied to the relevant publications (in the common law sense) and, where a public interest defence covers an initial phase of publication but falls away later, the claimant must prove serious harm as to the later publications. The court found that the trial judge was correct in principle on that point but erred in her factual findings about whether later publication of the TED Talk caused serious harm.

Applying the law to the facts, the court allowed the appeal in part: it set aside the dismissal of the claim as to the TED Talk published in this jurisdiction after 29 April 2020 and ordered judgment for the claimant for damages to be assessed for that period; it dismissed the appeal as to the tweet.

Background and parties: The claimant, a businessman prominent in the UKBrexit campaign, sued a journalist for defamation arising from a TED Talk (April 2019) and a tweet (June 2019) alleging he had a covert relationship with the Russian government and had accepted foreign funding in breach of electoral law. The TED Talk and the tweet were published online and accessible in this jurisdiction. Official investigations later produced statements (the NCA statement and a Joint Statement with the Electoral Commission) finding no evidence of criminal offences or foreign funding. The defendant withdrew her truth defence and apologised but continued to rely on the statutory public interest defence under section 4(1) of the Defamation Act 2013.

Procedural history: The natural and ordinary meaning of both publications was found at a preliminary hearing to be that the claimant had repeatedly lied about a secret relationship with the Russian government and acceptance of foreign funding in breach of law. At trial before Steyn J the central issues were (i) whether the serious harm requirement in section 1(1) was satisfied for each publication and phase of continuing publication, and (ii) whether the defendant had established the public interest defence for the relevant periods.

Issues framed:

• whether, in a case of continuing publication where a public interest defence applied for an initial period but ceased to apply later, the claimant may rely on harm caused by the earlier lawful publication to satisfy the section 1(1) threshold for later publications;
• whether the trial judge erred in assessing whether serious harm was caused by the tweet and by the TED Talk in the period after the public interest defence had ceased to apply;
• the application of established authorities on the scope of the serious harm requirement, the single-publication rule (for limitation only), and admissibility of evidence of pre-existing reputation.

Courtreasoning and conclusions: The court held that "publication" in section 1(1) retains its common law meaning (each communication is a separate publication) and that section 1(1) must be read to mean a statement is defamatory only to the extent that its publication has caused or is likely to cause serious harm. Accordingly, where a public interest defence covers an initial lawful phase, the claimant must prove serious harm in respect of publications after the defence falls away; harm caused by lawful earlier publication cannot be counted to make otherwise non-actionable later publications actionable. The court accepted that this approach is consistent with sections 8 and 15 of the 2013 Act and with the common law framework.

The court found error in the trial judge's factual reasoning about the TED Talk's later publications. The judge had relied on an "echo chamber" and the view that many publishees' opinions were "of no consequence"; those findings were unsupportable on the evidence and (as applied) legally improper because prior publications of the same allegation are inadmissible to prove a prior bad reputation. Removing those flaws, the court concluded that publication of the TED Talk in this jurisdiction after 29 April 2020 was inherently capable of causing serious harm given its gravity and the judge's own findings as to scale of later publication. By contrast, the court concluded there was no evidential basis to infer any serious harm from publication of the tweet in the period after 29 April 2020 because tweets normally peak on initial publication and the tweet was unlikely to have been accessed in the later period.

Remedy and next steps: The Court of Appeal allowed the appeal in part: it substituted an order that the claim as to the TED Talk be dismissed for publications up to 29 April 2020 but that there be judgment for the claimant for damages to be assessed in respect of publications in this jurisdiction of the TED Talk between 29 April 2020 and the date of judgment. The court dismissed the claim in respect of the tweet. The court noted consequential issues to be resolved, including the procedure for assessment of damages and possible injunctive relief limited to the complained sentence.

Appeal allowed in part. The court held that section 1(1) of the Defamation Act 2013 must be applied to the relevant publication(s) in the common law sense: where a public interest defence covers an initial lawful phase but falls away later, the claimant must prove serious harm in respect of the later publications; harm from earlier lawful publication cannot be relied upon to make later non-actionable publication actionable. Applying these principles, the court found the trial judge erred in her factual findings about the TED Talkand allowed the appeal as to publication of the TED Talk after 29 April 2020 (damages to be assessed), but affirmed dismissal of the claim as to the tweet.

Appeal from the High Court of Justice, Kings Bench Division, Media and Communications List (Steyn J) [2022] EWHC 1417 (QB) to the Court of Appeal (this judgment [2023] EWCA Civ 219).