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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Bridgen v Hancock [2024] EWHC 623 (KB) (20 March 2024) URL: https://www.bailii.org/ew/cases/EWHC/KB/2024/623.html Cite as: [2024] EWHC 623 (KB) |
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KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ANDREW BRIDGEN MP |
Claimant |
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- and - |
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MATTHEW HANCOCK MP |
Defendant |
____________________
Aidan Eardley KC (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 1 March 2024
____________________
Crown Copyright ©
Mrs Justice Steyn :
The factual background
"As a nation we should be very proud of what has been achieved through the vaccine programme. The vaccine is the best defence against Covid that we have. Misinformation about the vaccine causes harm and costs lives. I am therefore removing the whip from Andrew Bridgen with immediate effect, pending a formal investigation."
Mr Hancock: "Does the Prime Minister agree that the disgusting antisemitic, anti-vax conspiracy theories promulgated online this morning are not only deeply offensive but anti-scientific and have no place in this House or in our wider society?"
Prime Minister: "I join my right hon. Friend in completely condemning, in the strongest possible terms, the types of comments we saw this morning. Obviously, it is utterly unacceptable to make such linkages and to use such language, and I am determined that the scourge of antisemitism be eradicated. It has absolutely no place in our society. I know the previous few years have been challenging for the Jewish community, and I never want them to experience anything like that again."
(POC §§6 and 20; Response to Part 18 Request, request 1.)
"The disgusting and dangerous anti-semitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society".
In addition, below the words "My question to @RishiSunak in PMQs" the Tweet linked to a video of the defendant asking a question in Parliament and receiving a response from the Prime Minister, in the terms quoted in paragraph 7 above (POC §6, Response to Part 18 Request, request 2).
The procedural history
"Your letter does not explain how readers of our client's tweet would have come to understand it to refer to Mr Bridgen. It says nothing about the essential element in any cause of action for defamation: reference. As you will know from the [Pre-action Protocol], a letter of claim should include 'any facts or matters which make the Claimant identifiable from the statement complained of'. This is a critical omission.
Mr Bridgen is not named or otherwise identified in the tweet itself or in the Parliamentary exchange during PMQs which is included in the tweet. While it is for Mr Bridgen to explain his case on reference, not for our client to speculate how he might seek to do so, it appears that no-one could have understood the tweet to be about Mr Bridgen unless they were also aware of Mr Bridgen's tweet and the reaction to it, including the announcement of the removal of the whip from Mr Bridgen, the public criticism of what Mr Bridgen had said, and the exchange in Parliament during PMQs and reporting of it."
"7. Once the Strike Out Application has been heard and determined, the Court will consider the PIT Application.
8. The time for service of the Defence is extended until at least 21 days after the Strike Out Application has been heard and determined. The Court will give further directions for the time for filing of a Defence at that Stage."
"It is not sensible to direct the trial of preliminary issues at the same time as the Strike Out Application. If the Defendant is successful with that Application, subject to any appeal, that will be the end of the claim. Also, there are issues as to reference which mean that any decision as to what, if any preliminary issues should be tried, needs careful thought. So, the Court will proceed in stages."
i) That a large but unquantifiable number of people who read the defendant's Tweet were also the claimant's followers on Twitter and would therefore have seen the claimant's Tweet;
ii) That the Tweets listed in paragraph 14 of the Particulars of Claim ('the Criticisms of the claimant's Tweet') each named the claimant as the author of the claimant's Tweet and that a large but unquantifiable number of people who read the defendant's Tweet will also have read one or more of the Criticisms of the claimant's Tweet; and
iii) That a large but unquantifiable number of people who read the defendant's Tweet will also have read Simon Hart's Press Statement (which named the claimant).
The legal principles regarding striking out
"where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right".
The legal principles regarding identification or reference
i) Ordinary reference: "The first way is if the claimant is named or identified in the statement or where the words used are such as would reasonably lead persons acquainted with the claimant to believe that he was the person referred to " (Dyson, [35], emphasis added). In this case, the claimant is not named or identified in the defendant's Tweet: he relies on the words I have underlined. I shall refer to this as the 'acquainted with' test.
ii) Reference innuendo: "The second way is where a claimant is identified or referred to by particular facts known to individuals. This has been called in the textbooks 'reference innuendo' "
"Understanding the law relating to reference must start with the appreciation of the fundamental principle that the test is objective. The question is whether the hypothetical ordinary reasonable reader (if necessary, attributing knowledge of particular extrinsic facts) would understand the words to refer to the claimant: Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1243B, 1245B, per Lord Reid; 1261E-F per Lord Guest; and 1264A per Lord Donovan. In assessing this, the Court adopts the same approach as to the determination of meaning: 1245G per Lord Reid."
"It is not necessary to reach any general conclusion about the amount of detail which the hypothetical acquaintance would know about the claimant. No doubt the answer will depend on the context. The authorities suggest that, in the case of a company, the person acquainted with the claimant would know when it was incorporated and the general nature of its business activities It seems likely that in the case of an individual, their age and other outwardly obvious characteristics would be known. We would be inclined to agree with Mr Tomlinson KC that the hypothetical reader or viewer is not to be considered omniscient, or to know full details about the claimant." (Emphasis added.)
"Where there is room for doubt or dispute about whether the claimant has been identified or referred to without reliance on the reader or viewer acquainted with the claimant, it becomes necessary to consider what attributes of the claimant the hypothetical viewer [or reader], acquainted with the claimant, would be deemed to know. The onus must of course lie on the claimant to identify those attributes. The starting point must be to plead the case. This is normally done by way of the introductory averments in the particulars of claim, as it was here." (Emphasis added.)
"It is an essential part of the claimant's case to show that he is the person referred to by the defamatory words. Accordingly, where it is not absolutely clear on the face of the words that they refer to the claimant, e.g. where he is described by his initial letters, or by a fictitious name, or by the name of somebody else, or where he is not mentioned at all, the claimant should make clear in his particulars of claim the basis on which he claims to have been identified as the subject of the words complained of. He should set out the connecting facts which establish the link between himself and the words used, and he should make plain his case as to the existence of any persons who in fact linked him with the words by reason of their knowledge of those connecting facts, although such a case may be based on inference. These matters are material facts which must be pleaded. If the claimant does not plead such facts sufficiently, his claim will be struck out." (Emphasis added.)
"Where identification depends on extrinsic facts these extrinsic facts must be pleaded because they form part of the cause of action. In Bruce v Odhams Press Ltd [[1936] 1 KB 697] the claimant complained of an article about the smuggling activities of 'an Englishwoman', but did not state in the statement of claim the facts from which it was to be inferred that she was the Englishwoman referred to. The Court of Appeal held that these facts were a material part of her cause of action and should be pleaded. A claimant whose case on identification is based on extrinsic facts must, as a general rule, identify readers who knew those facts." (Emphasis added.)
Admissibility of evidence
"A striking out application requires analysis of the statement of case, without reference to evidence. Unless demonstrably and patently hopeless, the Court proceeds on the assumption that the relevant factual averments will be established by evidence at trial."
The Particulars of Claim
"1. The Claimant is and was at all material times the Minister [sic] of Parliament for North West Leicestershire. He was a Conservative Party MP from 6 May 2010 to the 11 January 2023. On 11 January 2023 the Claimant had the whip withdrawn.
3. On 11 January 2023, at 13:03hrs, the Defendant published a Tweet from his personal Twitter account (@MattHancock), which referred to the Claimant and was defamatory of him ('the Tweet complained of')." (Emphasis added.)
"7. The said words referred to and were understood to refer to the Claimant.
Particulars of Reference
8. On 7 December 2022, during Prime Minister's Questions, the Claimant queried the safety and efficacy of the Covid-19 vaccines, relying on data for reported deaths and adverse reactions to the vaccines collected by the US Centres for Disease Control (CDC) and the Vaccine Adverse Event Reporting System (VAERS).
9. On 13 December 2022, the Claimant was granted an Adjournment debate and made a speech in the House of Commons on potential harms caused by the Covid-19 vaccines. The Claimant published a list of supporting scientific references for his speech on his Parliamentary website a few days later, on 16 December 2022. Cardiologist, Dr Aseem Malhotra, who has over half a million followers on Twitter, tweeted on 14 December 2022 that the Claimant's speech was 'The most important parliamentary speech you will see & it may save your life. MP calls for suspension of mRNA vaccine because of unprecedented harms & little benefit'.
10. The Claimant's question on 7 December 2022 and his speech in the House of Commons on 13 December 2022 were significant events in the Claimant's political career, leading to an increase in his social media following and establishing the Claimant as an MP with a public commitment to raising questions in Parliament about purported Covid-19 vaccine harms. On 14 December, a day after his speech in the House of Commons, the Claimant tweeted: 'Thank you all so much for your supportive comments about my debate on vaccine harms last night, they have been truly moving. I will, of course, continue raising awareness of vaccine harms and the emerging and often alarming evidence linked to them.'
11. On Monday 9 January 2023, one Dr Joshua Guetzkow, a Senior Lecturer in Criminology at the Hebrew University of Jerusalem, published an article entitled, 'CDC Finally Releases VAERS Safety Monitoring Analyses For COVID Vaccines'. The article analyses the CDC's VAERS safety signal analysis based on reports from 14 December 2020-29 July 2022, stating that the DCD data shows: 'Clear safety signals for death and a range of highly concerning thrombo-embolic, cardiac, neurological, hemorrhagic, hematological, immune-system and menstrual adverse events (AEs) among US adults'.
12. On Wednesday 11 January 2023, at 08:42hrs, the Claimant tweeted a link to Dr Guetzkow's article from his personal account, @ABridgen, with the words: 'As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust' ('the Claimant's tweet').
13. The Claimant's tweet prompted criticism from some of the Claimant's Parliamentary colleagues and others, who found it distasteful ('criticisms of the Claimant's tweet').
14. At 10:35hrs on 11 January 2023, Simon Clarke MP (Conservative) tweeted 'This is disgraceful'; at 10:26, Christian Wakeford MP (Labour) tweeted 'Fake news and scaremongering on vaccines is bad enough but to invoke the Holocaust during the month of Holocaust Memorial Day is despicable. When is it enough for the Tories to withdraw the whip?'; at 11:11hrs and 11:21hrs, Michael Fabricant MP (Conservative) tweeted 'A lot of Jewish people and other likeminded decent folk would find this incredibly offensive' and 'If this deters people from being vaccinated and causes deaths as a direct consequence, he'll have blood on his hands. His tweets are wholly irresponsible'; at 11:30hrs, Andrew Percy MP (Conservative and Vice-Chairman of the All-Party Parliamentary Group Against Anti-Semitism) issued a statement reported at 11:3) as follows: 'The Holocaust saw the systematic state-sponsored murder of six million Jews and others. To use the Holocaust to promote some conspiracy theory fuelled anti-vaccine nonsense is not only anti-science, it is sick'. At 11:45hrs, Lord Mann, the Government's independent adviser on antisemitism, tweeted: 'There is no possibility that Bridgen can be allowed to stand at the next election. He cannot claim that he didn't realise the level of offence that his remarks cause'. At 12:16hrs, Holocaust Educational Trust CEO Karen Pollock tweeted 'For these horrors to be co-opted by anti-vaxxers once again is appalling. Andrew Bridgen's words were highly irresponsible, wholly inappropriate and an elected politician should know better'.
15. The criticisms of the Claimant's tweet made much of what was described alternatively as its 'offensive', 'sick', 'irresponsible', 'inappropriate', character, but none of the criticisms contain accusations that the Claimant is an anti-Semite.
16. On Wednesday 11 January 2023, at 11:16, the Conservative Party Chief Whip, Simon Hart MP, sent the Claimant a text message about the Claimant's tweet, following a telephone conversation between the Claimant and Mr Hart immediately prior. The text message reads in full:
'Andrew. To confirm our conversation of just now. The reference in your tweet to the vax programme being in some ways comparable to the holocaust has caused great offence across the nation as well as amongst colleagues. We have therefore decided to withdraw the whip and will meet to discuss next steps in due course. Simon Hart'.
17. Mr Hart's text message characterises the Claimant's tweet as causing 'great offence' for its (disputed) comparison of the Government's Covid-19 vaccine programme with the holocaust, but makes no allegation that the Claimant is an anti-Semite.
18. Following his text message to the Claimant, Simon Hart released a press statement in which he stated that the Claimant's tweet had 'crossed a line', 'causing great offence in the process'.
'As a nation we should be very proud of what has been achieved through the vaccine programme. The vaccine is the best defence against Covid that we have. Misinformation about the vaccine causes harm and costs lives. I am therefore removing the whip from Andrew Bridgen with immediate effect, pending a formal investigation.'
19. Mr Hart's press statement makes no allegation that the Claimant is an anti-Semite.
20. At 12:32, after the commencement of Prime Minister's Questions in the House of Commons, the Speaker of the House called on the Defendant, who proceeded to ask the Prime Minister Rishi Sunak the following question: [Mr Hancock's question (set out in paragraph 7 above) is then quoted].
21. It is not disputed that the Defendant's question was about the Claimant and referred to the Claimant's tweet from earlier the same morning. Any person following the unfolding events of the morning of 11 January 2023, watching the Defendant ask his question at Prime Minister's Questions, would have to have known that the Defendant's question was a reference to the Claimant and the Claimant's tweet, in order to have understood the meaning of the Defendant's question.
22. At 13:03, the Defendant published the Tweet complained of under the caption: 'My question to @RishiSunak in PMQs', with a link to a video of the Defendant addressing the British Prime Minister in the House of Commons. The Defendant essentially reproduced the wording of his earlier question, but with a slight amendment such that the substance of the Tweet complained of additionally contained a clear and direct reference to the Claimant (underlined below):
'The disgusting and dangerous anti-semitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society.'"
"In the natural and ordinary meaning of the Tweet set out in paragraph 22 above, the words complained of were understood to mean that the Claimant is an anti-Semite."
"A sitting MP who is said to have 'spouted' disgusting and dangerous anti-Semitic conspiracy theories is, by way of innuendo, in agreement with anti-Semitic conspiracy theories and therefore an anti-Semite."
The parties' submissions
Decision
Conclusion