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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Banks v Cadwalladr (Rev1) [2023] EWCA Civ 219 (28 February 2023) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2023/219.html Cite as: [2023] 3 WLR 167, [2023] EMLR 14, [2023] EWCA Civ 219, [2023] KB 524, [2023] WLR(D) 105 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mrs Justice Steyn
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SINGH
and
LORD JUSTICE WARBY
____________________
ARRON BANKS |
Claimant/ Appellant |
|
- and - |
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CAROLE CADWALLADR |
Defendant/Respondent |
____________________
Gavin Millar KC and Aidan Wills (instructed by Reynolds Porter Chamberlain) for the Respondent
Hearing date: 7 February 2023
____________________
Crown Copyright ©
LORD JUSTICE WARBY :
Summary
The claim and the issues
The judgment
(1) First, she said section 1 of the 2013 Act was intended to be a significant amendment to the law which raised the bar for bringing a libel claim, and "it would be counter to the purpose of the provision if a claimant could surmount the serious harm threshold by bringing into account evidence of harm caused by a lawful publication." In support of that point the judge referred to a passage in the judgment of Lord Sumption, speaking for a unanimous Supreme Court, in Lachaux
v Independent Print Ltd [2019] UKSC 27, [2020] AC 612 ("
Lachaux
SC") at [16].
(2) Secondly, the judge said that when assessing damages, any harm to the claimant's reputation suffered as a consequence of a publication in respect of which the defendant establishes a defence falls to be disregarded; and there is no good reason to take a different approach when assessing whether the serious harm threshold is met. In support of that point the judge referred to paragraph [24] of Lachaux
SC.
(3) Thirdly, the claimant's argument treated the word "publication" in section 1 as meaning the first publication, whereas at common law, each communication of a statement is a separate publication. There was nothing in the words of section 1 to support the claimant's approach.
The grounds of appeal
The first issue: the application of section 1 where the public interest defence falls away
(1) The judge's approach does not give proper effect to the language of section 1 of the 2013 Act. Section 1 creates a threshold test for determining whether "a statement" is "defamatory" by reference to the effect of "its publication". This threshold needs to be satisfied only once, and it was in this case. As the judge held, the claimant proved that the publication of the TED Talk caused serious harm. The claimant thereby satisfied that threshold test and established the wrong in question. Mr Williams submits that whether a defence is established is an entirely separate question which arises for consideration only at a later step in the analysis, once the basic ingredients of the tort have been established.
(2) The judge's interpretation of section 1 is also wrong in principle. It allows for different answers to what is a single question viz. whether "a statement" is defamatory. It is wrong to answer that question by considering different publications of "the same singular statement" and factoring in whether a defence is available in respect of those publications.
(3) The judge's interpretation of section 1 is also at odds with well-established principles governing the assessment of serious harm. A relevant factor is the scale of the publication. This must be considered as whole, and not by reference to each individual communication on each individual date, to each individual publishee. Here however, the judge considered publication in a "granular way" in separate parts.
(4) The judge's interpretation is incoherent, as it transforms the public interest defence available under section 4 of the 2013 Act into a part of the section 1 statutory threshold. This interpretation also leads to an incoherent result. The judge ultimately held that the statement complained of did not cause serious harm and was therefore not defamatory, when she had already concluded that the same statement did cause such harm and was defamatory.
(5) Such an approach cannot be justified either by the language of section 1 or by the underlying statutory purpose of that section. It would also be contrary to the Human Rights Act 1998 ("HRA") as it would lead to the Article 8 rights of claimants being "routinely and unfairly trumped by the Article 10 rights of publishers in respect of false statements for which there is no defence." This result can easily be avoided by applying section 3 of the HRA, which requires legislation to be read and given effect, so far as possible, in a way which is compatible with Convention rights.
The second issue: the approach to the assessment of serious harm
(a) The scale of publication
(b) The "echo chamber"
(c) People whose opinion was of "no consequence" to the claimant
(d) Comments posted online by publishees
The third issue: the implications of my conclusions for the outcome of the claims
Conclusions
LORD JUSTICE SINGH:
DAME VICTORIA SHARP, P: