Christopher Ness v Jennifer Miller

Key legal principles and outcome: The court held that the claimant failed to prove two essential elements of his libel claim: (1) that the words complained of in the YouTube video referred to him, and (2) that the defendant authored or procured the England Athletics emails. The judge applied established principles on meaning, reference and publication, including the approach in Koutsogiannis and Millett to determine natural and ordinary meaning, the "acquainted with" test from Dyson for identification, and the principles on liability for publication as set out in Gatley.

The court refused to allow the claimant to expand his pleaded case at trial by relying on an unpleaded contemporaneous chat message (“Chris Substack”), explaining that a properly pleaded reference-innuendo case and evidential support were required. On the evidence, the defendant was found not to have procured or authored the emails and the claimant therefore could not establish publication by her. The libel claim was dismissed. The judge declined to determine the meaning of the unadjudicated emails because the publisher of those emails was not before the court.

Background and procedural posture:

• The claimant sued for libel, false imprisonment and breaches of UK GDPR / Data Protection Act 2018 arising from a YouTube livestream (3 February 2024) and five emails sent to athletics bodies (10 February – 8 March 2024).
• Master Davison directed a Preliminary Issues Trial limited to: (i) the natural and ordinary meaning of the words complained of; (ii) whether any meaning was defamatory; (iii) whether the words were statements of fact or opinion; (iv) whether the YouTube video referred to the claimant; and (v) whether the defendant authored/published the England Athletics emails.
• The defendant applied to strike out parts of the claim. The claimant was self-represented; the defendant was represented pro bono at the hearing.

Nature of the claim / relief sought: The claimant sought damages for libel in respect of the YouTube video and the emails, and ancillary remedies under data protection and false imprisonment causes of action.

Issues framed by the court:

1. Whether the words in the YouTube video were reasonably understood to refer to the claimant.
2. Whether the words in the video and emails bore a defamatory meaning and whether they were statements of fact or opinion.
3. Whether the defendant authored or procured publication of the England Athletics emails.

Court’s reasoning (concise):

• The claimant attempted at trial to rely on an unpleaded contemporaneous live-chat message referring to "Chris Substack" to show identification. The judge refused to permit that expansion because it amounted to a new or amplified cause of action (a reference-innuendo case) that was not properly pleaded or supported by evidence. Litigants in person remain expected to comply with procedural rules.
• Even assuming arguendo the court considered the extra material, the claimant failed on the merits to show that the reasonable viewer acquainted with him would conclude the video referred to him. The judge emphasised the narrow scope of attributes properly imputed to the hypothetical "acquainted" viewer (Dyson) and found the evidence that the claimant was uniquely identifiable as "Chris Substack" at the material time was insufficient and unsupported by witness evidence.
• Regarding the England Athletics emails, unredacted emails disclosed the true sender(s). The claimant alleged collusion between the defendant and a third party (Lindsay/Lindsey Gauntlett). The defendant denied authorship or procurement; the disclosed material contained no convincing evidence of procurement or direct coordination. The judge accepted the defendant’s evidence and found no basis to conclude she procured or caused the publication.
• Because the defendant was not shown to be the publisher of the emails, the court declined to determine their natural and ordinary meaning at this stage.

Consequential directions: The judge dismissed the libel claim, granted the parties leave to make written submissions on costs, permission to appeal, and consequences for the data-protection causes of action and the outstanding strike-out application on false imprisonment.

First instance: The libel claim is dismissed. The court found that the claimant had not proved that the YouTube video referred to him and had not proved that the defendant authored or procured publication of the England Athletics emails. The claimant was not permitted to expand his pleaded case at trial to rely on an unpleaded reference-innuendo based on the live-chat message; on the evidence the defendant did not publish the emails and the libel cause of action therefore failed.