William Hay v Nina Cresswell

In a libel claim concerning allegations of sexual assault, the statutory defence of truth is established where the defendant proves the essential sting of the imputation on the balance of probabilities. Minor inconsistencies and peripheral exaggerations do not defeat the defence where the substantial sting is proved.

The defence under section 4 of the Defamation Act 2013 requires three questions: whether the statement concerned a matter of public interest, whether the defendant believed publication was in the public interest, and whether that belief was reasonable. The assessment is fact-sensitive and must take account of the defendant’s particular role and all the circumstances. The claim was dismissed.

The claimant brought a libel claim concerning publications in which the defendant alleged that he had violently sexually assaulted her after they met at a nightclub in May 2010. Meaning and serious harm were largely agreed. The defendant relied principally on truth under section 2 of the Defamation Act 2013 and publication on a matter of public interest under section 4. She relied on qualified privilege in relation to two communications to the claimant’s business partner.

The central issue was whether the defendant had proved that the claimant was the perpetrator of the alleged assault and, if so, whether the statutory defences were established.

1. Meaning. The natural and ordinary meaning of each publication was that the claimant had violently sexually assaulted the defendant. The additional imputation that he was a sexual deviant was not established.
2. Truth. The defendant proved on the balance of probabilities that she had been violently sexually assaulted and that the claimant was the perpetrator. The court assessed the evidence cumulatively. Minor inconsistencies, particularly in accounts given many years apart or in informal settings, did not materially undermine the essential account. Contemporaneous reports and messages strongly supported the occurrence of an assault. The police incident log and the rapid decision not to record a crime did not significantly undermine that conclusion, given the limited and potentially confused investigation.
3. The claimant’s changed account of leaving the nightclub with the defendant, his attempt to kiss her, and weaknesses in the evidence of him and his witnesses further supported the defendant’s case. The statutory defence of truth under section 2(1) of the Defamation Act 2013 was therefore established.
4. Public interest. The publications concerned matters of public interest, including sexual abuse in the tattoo industry, protecting women from sexual abuse, and failures to prosecute sexual abuse cases. The defendant genuinely believed publication was in the public interest. That belief was reasonable in all the circumstances, including her first-hand knowledge, her prior report to the police, the limited nature of the original investigation, the Tattoo MeToo campaign, and her concern for other women.
5. The section 4 defence required a fact-sensitive assessment of all the circumstances. The Reynolds factors were not a checklist, and the defendant was not required to meet journalistic standards. Her failure to include the claimant’s denial or the police conclusion did not defeat the defence in the circumstances.
6. The claim accordingly failed. It was unnecessary to determine qualified privilege or remedy. Consequential matters were left for written submissions.