RACHEL RILEY v MICHAEL SIVIER

On an application for permission to appeal in a libel claim, the Court of Appeal reaffirmed that appellate review is not a re-run of the trial. Findings of fact, evaluations and inferences attract generous deference. Under Defamation Act 2013, section 4 requires proof that publication concerned a matter of public interest, that the defendant believed publication was in the public interest, and that the belief was reasonable. Reasonableness requires attention to all the circumstances, including appropriate inquiries and checks. Editorial judgment cannot cure a belief lacking reasonable grounds for the core allegations. A trial judge may examine the factual basis of those allegations when it bears closely on reasonable belief, even where truth is not itself in issue. Permission was refused because the proposed grounds disclosed no real prospect of success.

Rachel Riley sued Michael Sivier over an online article describing her as a serial abuser. The High Court determined the meaning as a preliminary issue, struck out the truth and honest-opinion defences, and allowed the public-interest defence under section 4 of the Defamation Act 2013 to proceed to trial.

Steyn J found serious harm, rejected the public-interest defence, awarded £50,000 in damages and made a costs order: [2022] EWHC 2891 (QB). Mr Sivier did not challenge serious harm or damages. He sought permission to appeal the rejection of the public-interest defence, alleging errors concerning the circumstances, editorial judgment and procedural fairness. The central issue was whether any proposed ground had a real prospect of success.

Permission to appeal was refused. The proposed appeal had no real prospect of success.

1. Appellate review. An appeal is a review, not a re-run of the trial. Findings of primary fact, evaluations and inferences attract generous deference. An appeal court should interfere only where a critical finding is unsupported by the evidence or is one that no reasonable judge could have reached. It should ordinarily assume that the trial judge considered the evidence and arguments, even where particular matters were not mentioned. Warby LJ applied the principles drawn from Henderson v Foxworth Investments Ltd [2014] UKSC 41, Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, Haringey LBC v Ahmed [2017] EWCA Civ 1861 and Volpi v Volpi [2022] EWCA Civ 464.
2. Public-interest defence. Section 4 required proof that the publication concerned a matter of public interest, that the defendant believed publication was in the public interest, and that the belief was reasonable. The first two requirements could be satisfied while the third failed.
3. Reasonableness of belief. The court had to consider all the circumstances, including whether the defendant had made such inquiries and checks as could reasonably be expected. The failure to seek Ms Riley’s comment was a legitimate and important consideration. Urgency could bear on reasonableness, but was not an all-purpose excuse. The Judge was also entitled to find that the belief was substantively unreasonable because the allegations lacked reasonable grounds.
4. Editorial judgment. The allowance required by section 4(4) could be relevant where editorial judgment concerned whether to include particular defamatory detail. It could not rescue a belief lacking reasonable grounds for the truth of the core allegations. Flood v Times Newspapers Ltd [2012] UKSC 11 was distinguishable in that respect.
5. Stalking and procedural irregularity. The statutory conditions for stalking under section 2A of the Protection from Harassment Act 1997 were cumulative. Once the harassment allegation lacked a reasonable basis, the stalking allegation necessarily failed. It was not procedurally irregular for the trial judge to consider the factual basis of the allegations. Although truth was not itself an issue for trial, it was closely related to whether the defendant had reasonable grounds for his belief, and the observation complained of followed an independently sufficient reason for rejecting the defence.

• Court of Appeal (Civil Division): In [2023] EWCA Civ 71, Warby LJ refused permission to appeal because the proposed grounds had no real prospect of success.
• High Court of Justice, King's Bench Division, Media and Communications List: In [2022] EWHC 2891 (QB), Steyn J found serious harm, rejected the section 4 public-interest defence, awarded £50,000 damages and ordered payment on account of costs.