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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Wright v McCormack  EWHC 2671 (QB) (08 October 2021)
Cite as:  EWHC 2671 (QB),  EMLR 10
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Neutral Citation Number:  EWHC 2671 (QB)
CLAIM NO.: QB-2019-001430
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE JULIAN KNOWLES
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DR CRAIG WRIGHT
- and -
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Adam Wolanski QC, Greg Callus and Lily Walker-Parr (instructed by ONTIER LLP)
for the Claimant
Catrin Evans QC and Ben Silverstone (instructed by RPC)
for the Defendant
Hearing dates: 16 and 18 February 2021
- - - - - - - - - - - - - - - - - - - - -
Mr Justice Julian Knowles:
a. The Claimant’s First Amendment Application, dated 14 July 2020:
(i) The first part of this is an application by the Claimant to add Publications 12 to 16 to the Claim Form. In their original form, the Particulars of Claim (POC) referred to Publications 1 - 10. These were served in May 2019. After that, the Defendant published Publications 12 - 16. In late 2019 the Claimant circulated draft Amended POC (APOC) containing Publications 11 - 16. The Defendant consented to these amendments in December 2019. For reasons I will explain, no application was made by the Claimant at that time to amend the Claim Form to match the APOC. The part of the First Amendment Application therefore seeks to achieve consistency between the APOC and the Claim Form so that the same publications are set out in each.
(ii) The second part is an application dated 8 February 2021 to amend the First Amendment Application (if necessary) to add an argument based on s 32A of the Limitation Act 1980 (LA 1980).
b. The Claimant’s Third Amendment Application, dated 23 November 2020:
(i) This seeks to remedy discrepancies in the time stamps of Publications 1 - 10, as between the times pleaded in the APOC when the tweets were said to have been sent, and the times given for these tweets on the Claim Form.
c. An application by the Claimant to strike-out:
(i) parts of the draft Re-Amended Defence. The version of this pleading I have worked from was supplied to me in an electronic file called ‘UPDATED 170221 Appendix C Claimant’s colour coded revised draft ReAmDef with key v3.’ I will call this ‘Appendix C’. The passages in dispute, with each party’s summary position on them, is contained in an Agreed Table contained in a bundle which was supplied by the Claimant after the hearing. (Confusingly, the version of this pleading in the bundle as Item 9 on the Index is entitled ‘second version’, however it appears to be the same as the ‘v3’ Appendix C version I have already referred to).
(ii) parts of the Defendant’s Third Witness Statement of 12 February 2021. In line with the relevant file name, I will call this ‘Appendix B’. Subject to these objections, the Claimant does not object to the Defendant’s late application to serve this statement and for relief from sanctions (Supplementary Skeleton Argument, ).
d. An application by the Defendant to re-amend his Amended Defence. There is no formal application to re-amend, but the Claimant is not insisting (Claimant’s Closing Submissions, [14(a)(iii)]). There is an overlap between this application and the Claimant’s strike-out application in relation to this pleading.
Factual and procedural background
The Claimant’s case in outline
“Craig [Wright, ie, the Claimant] has started filing lawsuit against those falsely denying he is Satoshi .... they can all have a day in court to try to prove their fake case but the judge will rule that Craig invented Bitcoin because he did and he can prove it.”
“Calvin Ayre @CalvinAyre
yup ... Dr Craig Wright is Satoshi Nakamoto ... and #BSV is the only real #Bitcoin. All others are attacking Craig to sell their dysfunctional snake oil crypto products. Craig has proven this to me directly in a number of ways."
“Replying to @Calvin Ayre
Can I go first?
Craig Wright is not Satoshi
Craig Wright is not Satoshi …”
“5.1 The individual, or group of individuals behind the pseudonym Satoshi Nakamoto (‘Satoshi’) is/are generally accepted within the Bitcoin and cryptocurrency community as the original creator, or one of the originals creators, of the cryptocurrency Bitcoin.
5.2. This would have been known to a substantial but unquantifiable number of unidentifiable readers of the First Publication, and these readers would have understood the words complained of herein to bear the meaning set out above.”
“[retweet of a tweet by @CalvinAyre]:
Calvin Ayre @CalvinAyre Apr 10
[photograph of the Claimant in a group]
Craig and I polishing our muskets at today's Troll Hunting meeting in London. #Craigis-Satoshi.
[tweet by the Defendant]:
Replying to @CalvinAyre
‘Craig Wright is not Satohis! [sic] When do I get sued ?’”
“7.2. On and prior to 10 April Calvin Ayre had made it publicly known that the Claimant was intending to bring proceedings for libel against individuals who had alleged on Twitter that the Claimant had fraudulently claimed to be Satoshi.
7.3. The photograph which featured in the Second Publication was of the Claimant, Calvin Ayre and a group of lawyers. The reference to ‘Troll Hunting’ in the Second Publication was a reference to the pursuit by means of libel proceedings of those who had ‘trolled’ the Claimant on Twitter by accusing him of falsely claiming to be Satoshi Nakamoto.”
“24C. On 22 August 2019 at 4:54 am the Defendant first published a tweet (‘The Twelfth Publication’). The Twelfth Publication remains online and is accessible via the following url … In the Twelfth Publication the Defendant published or caused to be published the following words which referred to and were defamatory of the Claimant:
‘CSW is getting better at fraud, he's learned about metadata now, just not mastered it.
With the white paper he amended it in 2008 while the creation date is 2009. Nice try Craig, keep working on these fakes, you'll master it eventually.
Dear all. Could I please encourage you all to *download* Craig Wrights version of the Bitcoin White paper to your thumb or hard drive. I will explain later. I have archived it so you can choose to download from either source.’
24D. In their natural and ordinary meaning the said words meant and were understood to mean that the Claimant had fraudulently claimed to have written the Bitcoin White Paper.”
“24E. On 28 August 2019 at 5:13 pm the Defendant first published a tweet (‘The Thirteenth Publication’). The Thirteenth Publication remains online and is accessible via the following url … In the Thirteenth Publication the Defendant published or caused to be published the following words which referred to and were defamatory of the Claimant:
‘Faketoshi' s vision
The art of fraud
Foreword bv bum beard Calvin.’
24F. By way of innuendo, the said words meant and were understood to mean that the Claimant had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed Bitcoin.”
“24F.l. Paragraph 5.1 above is repeated.
24F.2. The phrase ‘Faketoshi’ is a synthesis of the words 'Fake' and 'Satoshi'.
24F.3. These facts and matters would have been known to a substantial but unquantifiable number of unidentifiable readers of the Thirteenth Publication and these readers would have understood the words complained of herein to bear the meaning set out above.”
“The reality is, is Bitcoin is king. Like, you can do what the fuck you want with BSV; it's dead, it's already dead. The market's voted, it's dead. If you're going to put your time at it, it's dead. The price is going to die; it's -- the only thing keeping it afloat, is Calvin's money; that's literally it. Add to that, you are supporting a bunch of people who are liars, frauds and morons. Craig Wright is a fucking liar, and he's a fraud; and he's a moron; he is not Satoshi. He can come at me in the fucking UK, he can take me to Court; he can come with his -- his fucking billions of dollars; I don't give a shit, come at me. Sue me, I don't give a fuck; you're still a liar, you're still a fraud, and you're still a moron.”
“25.1 The imputations complained of are inherently serious in terms of their propensity to cause harm to the reputation of the Claimant, and the probability is that publication of such imputations in relation to the Claimant would have this result. They go to the heart of his personal reputation for honesty and ethical conduct and, given his involvement within the cryptocurrency industry, to the heart of his professional reputation. No retraction or apology has been published, and so readers of the tweets complained of continue to believe that the Claimant is guilty of the conduct alleged.”
a. the imputations complained of are inherently serious in terms of their propensity to cause harm to his reputation, because they go to the heart of his personal reputation for honesty and ethical conduct and, given his involvement within the cryptocurrency industry, to the heart of his professional reputation.
b. the publications complained of were widely published to any internet user, without subscription or registration. The Claimant therefore invites the inference that a very substantial number of readers viewed the publications.
The Defendant’s case in outline
“19. The contention in paragraph 25.1 (which is denied), that the imputations complained of are inherently serious as a matter of obvious inference, ignores the critical overarching context in this case, as well as the requirement that the Claimant show serious harm as a matter of actual provable fact. All or at least a very large majority of the readers and viewers of the publications complained of, being people with a particular and/or specialist interest in the Bitcoin and cryptocurrency sector, would have known the historic context for the Defendant’s allegation that the Claimant was variously ‘not Satoshi’ or ‘a fraud’ or ‘repeatedly and fraudulently claimed to be Satoshi’, namely that summarised in paragraphs 7.1 to 7.4 above. In other words, the allegation - and its basis in the Claimant’s failed promises to prove he was Satoshi Nakamoto - was notorious and had been the subject since May 2016 of continuous widespread global publication within the Bitcoin and cryptocurrency sector and in mainstream media, and had thereby become an inherent part of the Claimant’s global public reputation. If necessary, the Defendant will refer to the mass of statements published worldwide, including in this jurisdiction, between 2016 and today which demonstrate this …”
“… that the Claimant’s claim to be Satoshi Nakamoto (the pseudonymous person or one of the group of people who created Bitcoin) was fraudulent, in that it was a lie, as demonstrated by his own failed promises to provide cryptographic proof of that claim.”
a. No serious harm, and therefore the publications were not defamatory (-);
b. Abuse of process ();
c. Truth (-);
d. Public interest (-);
e. Absence of any distress or embarrassment ().
(i) Third Amendment Application (the timestamp issue)
a. Publication 1 is pleaded in the APOC as having been sent at 8.17pm on 29 March 2019; on the Claim Form (and on the tweet itself), the time is given as 1.17pm, ie, seven hours earlier.
b. Publication 2 is pleaded in the APOC as having been sent at 1.47pm on 10 April 2019; on the Claim Form (and on the tweet), the time is given as 5.47am, ie, eight hours earlier.
a. Twitter is headquartered in California in the United States.
b. California operates Pacific Standard Time (PST) and Pacific Daylight Time (PDT). PDT is daylight savings time and is one hour ahead of PST. The change from PST to PDT takes place in the spring. They are respectively analogous to Greenwich Mean Time (GMT) and British Summer Time (BST) in the UK.
c. PST is eight hours behind GMT. PDT (ie, PST+1) is seven hours behind GMT. PDT is eight hours behind BST (ie, GMT+1).
d. In 2019, California moved from PST to PDT at 2:00 PST on 10 March 2019.
e. The UK moved from GMT to BST at 1:00 GMT on 31 March 2019, some three weeks later than California’s move to PDT.
f. Thus, between 10:00 GMT on 10 March 2019 and 1:00 GMT on 31 March 2019, California time (which by then was on PDT) was seven hours behind the UK (which was still on GMT).
a. The dates and times of publication were produced online to the drafter of the Claim Form in PDT in respect of the first ten publications. Mr Cohen was not able to ascertain with any certainty the reason for this timestamp. Because Twitter is based in California, Mr Cohen believes that the time given on the tweets as the drafter originally saw them may have defaulted to the relevant California time zone.
b. When the drafter inserted the timestamps while pleading the POC (which were dated 2 May 2019, a couple of weeks after the Claim Form was issued) they appeared to have had to hand, or been shown, timestamps which appeared in GMT (in respect of the first publication, dated 29 March 2019) and BST (in respect of the second to tenth publications, which post-dated 31 March 2019). This may have been because the person who generated those timestamped publications, or perhaps the drafter themselves, had a Twitter account which, Mr Cohen understands when logged in and based in the UK, would have displayed timestamps generated using GMT or BST rather than PDT.
(ii) The First Amendment Application
a. Firstly, his application to amend the Claim Form to add Publications 12 to 16.
b. Second, his application of 8 February 2021 to amend the application notice of 14 July 2020 (if necessary) for an order that the one-year limitation period in s 4A of the LA 1980 be disapplied pursuant to s 32A in relation to Publications 12 to 16.
“35 New claims in pending actions: rules of court.
(1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced -
(a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and
(b) in the case of any other new claim, on the same date as the original action.”
“(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either -
(a) the addition or substitution of a new cause of action; …”
“Section 35 and CPR 17.4 refer to ‘a new claim’ and to a ‘claim already made’, and s 35 refers also to ‘a claim involving a new cause of action’. For present purposes, a claim is a new claim only if it involves ‘the addition or substitution of a new cause of action: s 35(2)(a). The authorities establish that ‘cause of action’ carries the meaning given by Diplock LJ in Letang v Cooper  1 QB 232, 242-3:
“… simply a factual situation the existence of which entitles one party to obtain from the court a remedy against another person … [as distinct from] a form of action ... used as a convenient and succinct description of a particular category of factual situation”.
So, an amendment to include a claim for damages in negligence for personal injuries on facts already pleaded where the claim in respect of the injuries had been pleaded as a claim for damages in trespass to the person would not involve a new cause of action. In Lloyds Bank plc v Rogers [(No.2)  3 EGLR 83] Auld LJ noted that what makes a new claim as defined in s 35(2) is ‘not the newness of the claim according to the type or quantum of remedy sought, but the newness of the cause of action which it involves.’ After referring to Diplock LJ's dictum in Letang v Cooper, Auld LJ continued:
‘… It makes plain that a claim and a cause of action are not the same thing. It follows, as Mr Croally argued, that an originally pleaded 'factual situation' may disclose more than one cause of action, although one of them may not be individually categorised as such or the subject of a claim for a separate remedy. However, as Mr Browne-Wilkinson submitted, it does not follow that a claim so categorising it and/or seeking a remedy for it made for the first time by amendment is the addition of a new cause of action so as to render it a new claim.
That the draftsmen of section 35 and Ord 20 r 5 had the distinction in mind is underlined by their respective provision for new claims by reference to substituted new causes of action, as well as additional new causes of action. The remedy claimed - 'any claim' - may or may not be the same; what makes the claim 'a new claim' is the newness of the substituted cause of action. Thus, a claim for damages is a new claim, even if the same amount as originally claimed, if the claimant seeks, by amendment, to justify it on a different factual basis from that originally pleaded. But it is not, even if made for the first time, if it does not involve the addition or substitution of an allegation of new facts constituting such a new cause of action.’
Lloyds Bank v Rogers was a decision of a two-judge constitution of the Court of Appeal (Auld and Evans LJJ) and, while they differed on the issue as to whether the amendment introduced a claim involving a new cause of action, there was I think no disagreement on Auld LJ's statement of the underlying principles. In any event, the statement was cited with approval by the Court of Appeal in Aldi Stores Ltd v Holmes Buildings plc  EWCA Civ 1882.
30. Thus, ‘claim’ in the phrase ‘any claim involving … a new cause of action’ refers to the remedy sought, while ‘cause of action’ refers to the factual basis for the claim. Whilst the distinction is clear, it might be thought to lead to some tautology when applying the test in s 35(5)(a) as to whether ‘the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action’. The answer lies in treating ‘cause of action’ as those facts relied on in the statement of case as giving rise to a particular legal result and remedy. A change in the remedy may change the claim, but not the cause of action. A change in the essential features of the factual basis (rather than, say, giving further particulars of existing allegations) will introduce a new cause of action, but it may be permitted under s 35(5)(a) and CPR 17.4(2) if the facts are the same or substantially the same as those already in issue. I will return later to those provisions.
31. As well as referring to Letang v Cooper, Millett LJ in Paragon Finance plc v DB Thackerar & Co  1 All ER 400 at 405 cited ‘the classic definition’ of a cause of action given by Brett J in Cooke v Gill (1873) LR 8 CP 107 at 116:
‘’Cause of action’ has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, - every fact which the defendant would have a right to traverse.’
Millett LJ continued:
‘... I do not think that Diplock LJ was intending a different definition from that of Brett J. However it is formulated, only those facts which are material to be proved are to be taken into account. The pleading of unnecessary allegations or the addition of further instances or better particulars does not amount to a distinct cause of action. The selection of the material facts to define the cause of action must be made at the highest level of abstraction. …’
‘As I see it, the exercise which is required is the comparison of the pleading in its state before the proposed amendment and the pleading in its amended state. I do not think that it assists to look at the endorsement on the writ (see Steamship Mutual at p 97 per May LJ). What must be examined is the pleading of the essential facts which need to be proved. To define the cause of action the non-essential facts must be left out of account as mere instances or particulars of essential facts. That is what I understand Millett LJ to have meant by stating that the selection of material facts must be made at the highest level of abstraction. Thus, to take the example provided by the facts in Letang v Cooper  1 QB 232,  2 All ER 929 discussed by Millett LJ at p405 of the former report, the facts material to be proved to constitute the cause of action for trespass to the person did not include whether the trespass was intentional or unintentional.”
The exercise to be undertaken in deciding whether there is ‘a new claim’ as defined in s 35(2) is therefore to compare the essential factual elements in a cause of action already pleaded with the essential factual elements in the case of action as proposed. If they are the same, there is no new cause of action and therefore no new claim.”
“(3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the county court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim.
(4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose.
(5) The conditions referred to in subsection (4) above are the following -
(a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; …”
“Amendments to statements of case after the end of a relevant limitation period
(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”
“… only if the new claim arises out of the same facts or substantially the same facts as are already in issue on a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” (Emphasis added)
“33 Thus, it can be seen that in Goode v Martin  1 WLR 1828, the Court of Appeal reached its decision on the basis of an expanded version of CPR r 17.4(2). I shall refer to the expanded version of the rule as set out in para 46 of Brooke LJ's judgment as ‘the expanded rule’.
34. In the course of the hearing yesterday I discussed with counsel whether the expanded rule should always be adopted, or whether that expanded rule only applied in cases with a Human Rights Act 1998 dimension. Both Mr David Friedman, for Charles Church, and Mr David Sears, for Stent, inclined to the view that the expanded rule must generally be used in substitution for the original version of CPR r 17.4(2) as promulgated by the Rule Committee. In particular, for the purposes of the present case both counsel agreed that this court should proceed upon the basis of the expanded rule, rather than the original version of rule 17.4(2). Accordingly, I shall adopt that course.”
“Section 35(5)(a) of the 1980 Act provides an exception to the limitation principle. The rationale of this exception is that once particular facts have been put in issue in litigation, and therefore fall to be investigated, the claimant should be entitled to claim any appropriate remedy upon the basis of those facts. This policy justification is equally valid irrespective of whether those facts have been put in issue by D1 or by D2 or by both defendants.”
a. Firstly, he said that the application is merely a ‘clerical step’ to reconcile the Claim Form with the APOC, which at the moment are inconsistent, and that I therefore need not be concerned with the LA 1980 or CPR r 17.4. The amendment does not involve the making of a new claim. That is because the claims were brought and pleaded to by both parties in the APOC, the Amended Defence, and the Amended Reply, and the application is covered by the principle that applications to amend that are made purely to produce consistency between manifestly inconsistent statements of case, in circumstances where the inconsistency has been produced by inadvertent oversight, do not involve the making of a new claim. In support, he relies on Evans v CIG Mon Cymru Ltd  1 WLR 2675, -, where the amendment of the Claim Form to correct an ‘obvious mismatch’ with the Particulars of Claim caused by an inadvertent solicitor’s error was permitted.
b. Second, if the proposed amendment does involve new claims, and CPR r 17.4 applies, then they do arise out of the same facts (or substantially the same facts) which are already in issue, because Publications 12 to 16 have been pleaded to by both the Claimant and the Defendant in their other statements of case, namely the APOC, Amended Defence and Amended Reply.
c. Third, if necessary, the Claimant asks the Court to exercise its equitable discretion under s 32A of the LA 1980 to disapply the limitation period in s 4A in respect of Publications 12 to 16. That way, even if they constitute new claims, no period of limitation applies and thus no period of limitation has expired, so CPR r 17.4 is not engaged. This submission is reflected in the second part of the First Amendment Application that I referred to earlier.
a. Evans, supra, is distinguishable. That was a case about construction of the words used to describe an existing claim pleaded on the claim form: see Arden LJ’s judgment at . In the present case, the Claim Form does not refer to Publications 12 to 16 at all and there is no proper basis for construing it as if it did.
b. It is for the Claimant to show that any limitation defence in response to a proposed ‘new claim’ is not reasonably arguable or that the amendment falls within CPR 17.4(2): White Book 2021, [17.4.2]. A proposed amendment to rely on a new publication in a defamation case is likely to amount to the addition of a new claim which does not arise out of the same or substantially the same facts, for the purposes of s 35 LA 1980 and CPR 17.4(2): Komarek v Ramco Energy Plc, Unreported,  EWHC B2 (QB), 21 November 2002, (Eady J), -; Economou v de Freitas  EWHC 1218 (QB), ; Lokhova v Longmuir  EMLR 7, -. Publications 12 - 16 involve new causes of action which do not fall within s 35(5)(a) or CPR r 17.4(2). They are different publications made on different days (over a two-month period) and in different words to Publications 1-10.
c. In relation to the s 32A argument, the Defendant relies on the approach adopted by Eady J in Komarek, supra,  and Otuo v Brierley  EMLR 6, , as well as s 35(3) of the LA 1980, in support of his argument that s 32A does not provide a gateway by which a statute-barred new claim can be added under s 35 and CPR r 17.4(2). Even if such a power existed, the Defendant submits that it would be wrong for the court to exercise the discretion under CPR r 17.4(2) and/or s 32A on the present facts. The Defendant relies on what he calls the ‘extensive delay’ shown by the Claimant in bringing this application.
“(2) The court may strike out a statement of case if it appears to the court -
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.”
“3 … In giving leave, Jacob LJ asked rhetorically, at para 8: ‘Where a claim form read alone wrongly identifies the claim, but when read together with the other documents with which it is served, is clear, why should one say the claim is out of time ?’
4. He went on to observe, at para 9:
‘So the legal position may be this: that when what is served in time as a whole makes clear what the claim is for, it is possible to correct the earlier issued unserved claim form, provided there is no abuse of process involved … It seems to me that this is quite an important question of principle and is therefore worthy of consideration by this court.”
5. To similar effect, Mummery LJ said, at para 11, that he considered that:
‘there may be a power to amend the claim form which when it is served at the same time as the particulars of claim and the medical report, exhibits an obvious mismatch between what is in the claim form and the particularised case pleaded in the particulars of claim and evidenced by the medical report.’
6. He went on to observe that, in this case, all the documents were served at the same time and it would be obvious to the person receiving them that there was a clear mismatch.”
21. The case has been succinctly and attractively argued on both sides. Mr Grace, for the defendant, has faced the harder battle because he has been subjected to more questioning from the court and he presented his case with conspicuous clarity. It is convenient to start by considering the defendant’s application to strike out the particulars of claim, not least because that was the first application before court. Although the application did not formally identify the grounds on which it was made, Mr Grace relies upon paragraphs (a) and (c) of the grounds provided in rule 3.4 for such an application. He puts his argument in this way: in any proceedings the claim is essentially defined by the claim form. The particulars of claim disclosed no reasonable grounds for bringing the claim, as identified in the claim form (namely, a claim for abuse at work), and were therefore to be struck out under paragraph (a). Furthermore, the particulars of claim failed, contrary to the requirements of rule 16, to provide a concise statement of facts on which the claimant relied to support a claim for abuse at work. They said nothing at all about abuse at work. It is, effectively, the same argument in another form. The foundation of it is that the case is to be identified by reference, and only by reference, to the general description of the claim in the claim form, viewed objectively, albeit that the description may, to the knowledge of all parties to the application, have been a pure error.
22. The power of the court to strike out under rule 3.4 is discretionary. Mr Grace accepts that if the claimant’s solicitors had themselves spotted the error at any moment prior to service, the claim form could have been amended under rule 17.1 without application to the court. He does not quarrel with the proposition that the fact that it was spotted only by the defendant has caused it no prejudice at all. On its face, I can see no reason why, in such circumstances, the court should exercise its discretion to strike out the claim form, and every reason in justice for it not to do so. It was, by common understanding, an error which caused no detriment to anybody.
23. However, Mr Grace had a further argument why the court does not have such a discretion. The argument runs in this way. For the court to disregard the error in the claim form as an irregularity, causing no prejudice, in respect of which the court could therefore grant relief under its general powers under rule 3.10, would be tantamount to treating the claim form as though it referred to an accident at work, rather than to abuse at work. Were an application to be made by the claimant to make such an amendment (as the claimant in response to this application went on to do) such an application would, in his submission, be bound to fail by reason of the provisions of rule 17.4. Therefore, if the court could not cure the mismatch by granting an amendment under rule 17.4, it would be wrong to deal with the matter by simply refusing the application to strike out under rule 3.4.
24. That argument brings me directly to the question of whether an application to amend the claim form would necessarily fail under rule 17.4. It would be most unfortunate if that were the case in circumstances where, as mentioned, it is common ground that the alteration could have been made immediately before the service and nobody has been misled by it. But if the rules on their proper construction preclude such an amendment being allowed, then the rules must be applied. In applying rule 17.4 in these circumstances, Mr Grace submits that the court should concentrate, purely and simply, on the claim form, which is the foundation document on which the proceedings depend. So viewed, it is self-evident, he submits, that to change the claim form, so as to alter the word “abuse” to “an accident”, is to substitute a new cause of action. The matter has to be viewed objectively, and the judges below were right to conclude that the rules allowed no escape for the claimant.
25. That brings me to the point raised by Jacob and Mummery LJJ in granting leave to appeal, whether that is not an over-narrow way of viewing the matter, when the claim form and particulars of claim and supporting documents were all served together. I have already made reference to the definition of the term ‘statement of case’ in the rules.”
“26. In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant’s pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error. I reject the argument that an amendment to correct that clerical error was prohibited by rule 17.4 and, in my judgment, there was nothing to prevent the court from exercising its general discretion to do justice in response to the application to strike out the particulars of claim. If the circuit judge had considered that he had such a discretion, it is plain how he would have exercised it and, in my judgment, rightly so. I would therefore allow this appeal and restore the action.”
“30. As Toulson LJ has explained, there is no suggestion that the claimant deliberately referred to abuse at work in the claim form, intending to raise a claim for that. Nor is there any suggestion that the defendant understood the claimant to be doing so. So there is an obvious conflict between the claim form and the particulars of claim. They cannot both be right. In my judgment, on the ordinary rules of interpretation, the court would say that the words ‘abuse at work’ in a claim form are an obvious clerical error which can be corrected, as a matter of interpretation, to accord with their objective meaning in the context or in the light of the factual matrix -namely, accident at work. The interpretative exercise which is needed is as simple as substituting for the word “abuse” the word “accident”.
“Amending a claim form to specify a cause of action not previously mentioned therein does not raise a new cause of action if the amendment is made simply to resolve an obvious inconsistency between the claim form and the particulars of claim served with it. In deciding whether the amendment raises a new cause of action the court should consider the proposed amendment in the context of the statements of case as a whole, not just the claim form by itself.”
“In my view the just approach is to look at the totality of the documents served. These documents together set out the claimant’s pleaded case. There was an obvious mismatch, but in asking whether the proposed amendment was, in truth, an amendment to raise a new cause of action or merely to clarify an internal inconsistency in the pleaded case is, it is proper to look at the pleaded case as a whole. When one does so, it is clear, in my judgment, that what was sought to be done by the subsequent application to amend was not, in substance, to raise any new claim at all, but merely to correct an obvious formal error.”
“It must be borne in mind that the material part of the cause of action in libel is not the writing, but the publication of the libel … “
Davey LJ said at p64
“It is not the writing of a libel which is actionable, but the publication of it.”
See also Alsaifi v Npower Limited  EWHC 840 (QB), ; Gatley, supra, (12th ed.), [19.13]; Duncan and Neill, supra, [24.01].
“It is clear that, in these respects, the clients are seeking to add new causes of action very close to the trial date …”
“In one sense, the facts sought to be relied upon in the proposed amendments are similar to those already pleaded; that is to say, the allegations about the claimants are similar. The essence of a claim in libel, however, is not the nature of the allegations but their publication. Each publication gives rise to a different cause of action. The publication to Sir Jeremy cannot, therefore, be characterised as (even ‘substantially’) the same fact as the publication to the Ambassador. … the litigation of the factual issues relating to the 20 May publication does not mean that the issues relating to the alleged later publications to and by Sir Jeremy are bound to be litigated in any event.”
“ … a different publishee involves a new cause of action even if the allegedly defamatory remarks are substantially the same on each occasion.”
“49. The meanings attributed to the draft Statement are very similar to those which are attributed to publications of which the claimant already complains, but that is not enough to satisfy s 35(5)(b) or CPR 17.4(2). The new claim ‘arises out of’ the communication of the draft Statement to Ms Laville. There is no extant claim that arises out of that communication. The claimant’s present case in respect of the first Guardian article is that it resulted from an ‘interview’.
50. … It remains the case that the proposed ‘new claim’ in paragraphs 9A to 9D arises from facts which are not the same, or substantially the same, as ‘a claim in respect of which the party applying for permission has already claimed a remedy’ within CPR 17.4(2).”
“51. The communication of the draft Statement to Ms Laville is, as the Defence stands before amendment, something positively averred by the defendant. So the question of whether the facts relied on for the new claim are the same or substantially the same as ‘are already in issue on any claim previously made’ within the meaning of s 35(5)(a) might have been a subtler one. But the discretion available to me is defined and confined by the wording of the CPR. It follows that I have none.”
“If, in assessing whether the new claim arises out of the same or substantially the same facts as an existing claim, the court is limited to consideration of the matters pleaded in the original Particulars of Claim then I would be satisfied that … this application would have to be dismissed … The cases demonstrate, however, that the court must take a wider view of the facts arising on the claim that also encompasses consideration of the Defence.”
“… the court will inevitably need to assess what factual issues would, or would be likely to, arise if the amendment were allowed, and whether and to what extent those same matters are already in issue on an existing claim. In a defamation claim it is not enough that the new claims involve defamatory allegations the same as or similar to those already complained of; a broader assessment is required of what is and will be in issue.”
“… the factors bearing on the exercise of the discretion … are substantially encompassed in the terms of s 32A. The judge had to decide whether it was equitable in all the circumstances… to permit this late amendment outside what would otherwise be the statutory limitation period.”
“If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
(a) the operation of section 4A of this Act prejudices the plaintiff …, and
(b) any decision of the court under this subsection would prejudice the Defendant …”
“(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A -
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
(c) the extent to which, having regard to the delay, relevant evidence is likely –
(i) to be unavailable, or
(ii) to be less cogent than if the action had been brought within the period mentioned in s 4A.”
“5. The discretion to disapply is a wide one, and is largely unfettered: see Steedman v British Broadcasting Corpn  EMLR 318, para 15. However it is clear that special considerations apply to libel actions which are relevant to the exercise of this discretion. In particular, the purpose of a libel action is vindication of a claimant's reputation. A claimant who wishes to achieve this end by swift remedial action will want his action to be heard as soon as possible. Such claims ought therefore to be pursued with vigour, especially in view of the ephemeral nature of most media publications. These considerations have led to the uniquely short limitation period of one year which applies to such claims and explain why the disapplication of the limitation period in libel actions is often described as exceptional.
6. Steedman v British Broadcasting Corpn was the first case in which the Court of Appeal had to consider the manner in which a judge exercised his discretion pursuant to section 32A of the Limitation Act 1980. Brooke LJ said, at para 41:
‘it would be quite wrong to read into section 32A words that are not there. However, the very strong policy considerations underlying modern defamation practice, which are now powerfully underlined by the terms of the new Pre-action Protocol for Defamation, tend to influence an interpretation of section 32A which entitles the court to take into account all the considerations set out in this judgment when it has regard to all the circumstances of the case …’
7. The Pre-action Protocol for Defamation says now, as it said then, at para 1.4, that:
‘There are important features which distinguish defamation claims from other areas of civil litigation … In particular, time is always 'of the essence' in defamation claims; the limitation period is (uniquely) only one year and almost invariably, a claimant will be seeking an immediate correction and/or apology as part of the process of restoring his/her reputation: see Civil Procedure 2014, vol 1, para C6–001.’
8. The onus is on the claimant to make out a case for disapplication: per Hale LJ in Steedman v British Broadcasting Corpn  EMLR 318, para 33. Unexplained or inadequately explained delay deprives the Court of the material it needs to determine the reasons for the delay and to arrive at a conclusion that is fair to both sides in the litigation. A claimant who does not ‘get on with it’ and provides vague and unsatisfactory evidence to explain his or her delay, or ‘place[s] as little information before the court when inviting a section 32A discretion to be exercised in their favour … should not be surprised if the court is unwilling to find that it is equitable to grant them their request’, per Brooke LJ in Steedman v British Broadcasting Corpn, para 45.”
The Claimant’s strike-out applications and the Defendant’s application to re-amend the Amended Defence
a. The Claimant’s application to strike-out:
(i) Parts of the Defendant’s draft Re-Amended Defence, Appendix C. As I said earlier, there is an Agreed Table setting out the passages in dispute and the parties’ submissions in relation to them. The application is brought under CPR r 3.4(2)(a) and/or r 3.4(2)(b) (Closing Submissions, ).
(ii) Parts of the Defendant’s Third Witness Statement of 12 February 2021, Appendix B
b. The Defendant’s application to re-amend his draft Re-Amended Defence.
a. Maintains that the publications did not cause the Claimant serious harm;
b. Deletes the defence of abuse of process;
c. Deletes the defence of truth;
d. Deletes the public interest defence;
e. Maintains the denial that the Claimant has suffered distress or embarrassment because of the Defendant’s publications and denies he is entitled to any remedy.
“7. For the avoidance of doubt, my belief in the strength of my defence (in the form set out in my Amended Defence served on 18 March 2020) has not changed throughout the litigation. I would, if I could afford it, continue to maintain my defences to the claim, but for the reasons detailed below, I cannot.
9. … I have … decided to defend the claim to the limited extent of requiring the Claimant to establish liability and his entitlement to the remedies he seeks but I have confirmed that I will not rely on my substantive defences, which I have agreed can be struck out from my Defence.”
“Power to strike out a statement of case
(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike-out a statement of case if it appears to the court -
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.
(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit -
(a) the court’s order must record that fact; and
(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.”
“Power of court to control evidence
32.1 (1) The court may control the evidence by giving directions as to -
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination.”
“Extensive time at the trial, both in my judgment and applying normal sensible case management measures, should not be spent arguing about what evidence should be admitted at that very trial…. Given the breadth of the application, and the length of time (even prior to the challenged evidence being served) that the parties had been arguing about it, it seemed to me that the application should be dealt with in advance of the trial. These were not isolated passages that were being attacked. The parties also needed to know in advance of the trial, particularly given the root and branch attack by the defendant upon such substantial amounts of the claimants’ evidence.”
(ii) The rule in Dingle
“In the class of case - of which the present is an example - where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation.”
“74. The decision in Dingle has not commanded universal agreement. To some it seems no more than common sense that previous publications to the same or similar effect are relevant when assessing what damage to reputation has been caused by a given publication. The ratio of the decision is, however, not that it is irrelevant to consider the state of a person’s reputation at the time the words complained of are published. The common law has always recognised that a person should only be compensated for injury to the reputation they actually possess. A defendant may prove in mitigation that a person has a bad reputation in the relevant sector of his life. The common law has however developed rules as to the means by which such a matter may be proved or, put another way, the evidence which is admissible to establish it. Previous publications to the same effect are inadmissible. The court will admit evidence from individuals who can speak of how a person is or is not esteemed, in the relevant sector of his reputation, or evidence of a conviction or possibly some other single notorious event. Dingle is in my judgment properly understood as a reaffirmation of those long-established rules of common law, and the policy considerations that underlie them.”
“75. The speech of Lord Denning perhaps reflects this most clearly. Giving his reasons for concluding that Pearson J had erred he identified the issue in this way  AC 371, 410:
‘Now comes the difficult point which I may state in this way. The Daily Mail are only responsible for the damage done to the plaintiff’s reputation by the circulation of the libel in their own newspaper. They are not responsible for the damage done to the plaintiff’s reputation by the report of the select committee or by the publication of extracts from it in other newspapers. If the judge isolated the damage for which the Daily Mail were responsible from the damage for which they were not responsible, he would have been quite right, see Harrison v Pearce (1858) 1 F & F 567. But it is said that he did not isolate the damage. He reduced the damages because the plaintiff’s reputation had already been tarnished by reason of the publication of the report of the select committee and of the privileged extracts from it in the Daily Mail and other newspapers. I think he did do this and I think he was wrong in so doing.’
76. Lord Denning gave these reasons for that conclusion at pp410–411:
‘At one time in our law it was permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel. That has long since ceased to be allowed, and for a good reason … It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulation without reference to the damage done by others. They may not even refer to other newspapers in mitigation of damages. Such has been the law ever since 1829 (Saunders v Mills (1829) 6 Bing 213; 3 Moo & P, 520), and it cannot be called in question now. It is but a particular instance of the general rule which excludes rumours or reports to the same effect as the libel, see Scott v Sampson (1882) 8 QBD 491, 503, 504; Plato Films Ltd v Speidel  AC 1090, 1136: and it has been implicitly recognised by the legislature in the statutes of 1888 and 1952 which have created some limited exceptions to it, not in question here.’
77. Lord Denning addressed the contention that the claimant’s reputation had been ‘tarnished’ by other publications. In the process he identified the kinds of evidence that the common law accepts as admissible on the issue of bad reputation, at p412:
‘In order to get round this law about reports and rumours, Mr Faulks said that they had got to the stage here where Mr Dingle’s current reputation was tarnished: and that evidence of tarnished reputation was admissible in evidence. But how are you to distinguish between reports and rumours which are inadmissible and tarnished reputation which is admitted ? Only in this way: In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him. They are in a position to judge his worth. If they consider he has a bad reputation, they are very likely right, and he has nothing much to lose. If it is a settled reputation which has been accumulated over a period by a sequence of misdeeds, they will know of it. If it is a reputation which has been destroyed at one blow by a single conviction, they will know of it too. Either way, if you call those who know him well, you are likely to get at the truth.”
78. The other principal speech on this issue was that of Lord Radcliffe, with whom Lord Morton of Henryton and Lord Cohen agreed. He said, at p396:
‘Whatever may be the qualifications or requirements as to evidence led on the issue of reputation by way of mitigation of damages for libel, I do not believe that it has ever yet been regarded as permissible to base such evidence on statements made by other persons about the same incident or subject as is embraced by the libel itself. In my opinion it would be directly contrary to principle to allow such an introduction.’
79. Lord Radcliffe identified the principles:
‘A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. If they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication.’
80. Dealing with the ‘tarnished reputation’ point, Lord Radcliffe said:
‘It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law. I believe that in saying this I am doing no more than recognising the rule derived from Saunders v Mills. This case was decided in 1829 and it has enjoyed a long and respected reign in the textbooks on libel.’
81. Lord Radcliffe left open the possibility of proving bad reputation by means other than what he called ‘the reception of such hazy generalities as a ‘well-known pickpocket’ or a ‘notorious prostitute’’. He was not persuaded that the House’s recent decision in Plato Films Ltd v Speidel  AC 1090 resolved the issue. But he said  AC 371, 399:
‘I do not think it necessary to say anything on that point because, whatever this recent decision must be taken as laying down, I am confident that none of the members of the House contemplated that the evidence of reputation that they were speaking of could possibly embrace evidence of the use of repetition of the same defamatory words by other persons dealing contemporaneously with the same incident or subject. When one speaks of a plaintiff’s ‘actual’ reputation or ‘current’ reputation (to quote my own adjective) one means his reputation as accumulated from one source or another over the period of time that precedes the occasion of the libel that is in suit.’”
“Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff. If it refers to the same matter as the libel, it tends to prove a justification and is therefore not admissible in mitigation of damages but only in support of a plea of justification. If it refers to something different from the libel, it cannot be admitted because it is specific misconduct which it is not considered fair that you should bring up against him, see Speidel v. Plato Films Limited.”
“83. The ratio of Dingle is binding on me, and it was not suggested otherwise. I have identified its ratio above. It would in my view be quite wrong for me to distinguish the decision by taking the narrow view of its ratio that Mr Price suggests [viz, that the decision simply relates to what material is admissible in mitigation of damages, and is not authoritative in the new legal environment in which a claimant must establish serious harm to reputation: see at ]. There is no principled distinction to be drawn between the admission of other articles in mitigation of damages, as was attempted unsuccessfully in Dingle in a legal environment where damage was presumed, and the attempt to introduce such articles to reduce or limit damages in the present case, in the changed environment following the 2013 Act.
84. I would add that I am far from persuaded that there is anything fundamentally wrong with the rule in Dingle. The reasoning of Lord Radcliffe and Lord Denning is persuasive, not only at the level of authority but also in terms of both principle and pragmatism. The argument at this trial has underlined some of the practical problems which would be liable to flow from the approach that is urged on me by the defendants. Somewhat perversely, publishers, ordinarily straining to scoop one another with a news story, would have the opposite incentive when it came to responsibility for damage to reputation. There would be a contest not to be found to be first. And it is of course not just a question of timing. One would have to consider the extent of any overlap between readerships. Mr Price’s core submission would require some assessment of the overlap between the readership of A and B. There is no evidence on that issue in this case, and I see no reason to assume that there is any substantial overlap between the readership of the various publications at issue.
85. It seems to me that the principled justifications for adhering to the rule in Dingle are at least as strong as they were at the time it was decided. I have cited the principles identified by the House of Lords. Another, pointed out by Devlin LJ in the Court of Appeal  2 QB 162, 189–190, is that the rule corresponds with basic principles of causation:
‘If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes.’
86. Secondly, at common law, a publication which bears a meaning defamatory of the claimant is irrebuttably presumed to have caused the claimant damage, if the claimant chooses to sue on it. It could be argued that the same approach should in logic and fairness be adopted by the common law when considering the impact, if any, of other published statements to the same or similar effect: the court should presume or at least infer that a statement having a defamatory tendency has in fact caused the harm which it is inherently liable to cause. Otherwise, the scales are set unevenly as between the parties. If I am right in my construction of section 1(1) of the 2013 Act, there is now no irrebuttable presumption of serious harm to reputation; it must be proved. Although it may sometimes be proved by inference, evidence of actual harm in the form of adverse social media responses, name-calling, or similar events is admissible, and may be necessary. In this new legal context, adherence to the limits set by Dingle on evidence of collateral harm to reputation may be more likely to hold the scales evenly between the parties than it did in the past. There is less room for complaint by defendants. There would be some room for complaint by claimants if defendants were now permitted to put in evidence other defamatory publications and, without more, invite an inference that these had caused serious harm to reputation. The position of a defendant would approximate to that of a claimant under the previous law.”
“21. On the footing that (as I would hold) Mr Lachaux must demonstrate as a fact that the harm caused by the publications complained of was serious, Warby J held that it was. He heard evidence from Mr Lachaux himself and three other witnesses of fact, and received written evidence from his solicitor. He also received agreed figures, some of them estimates, of the print runs and estimated readership of the publications complained of and the user numbers for online publications. He based his finding of serious harm on (i) the scale of the publications; (ii) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (iii) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (iv) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady. Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge’s finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux’s reputation should not be drawn from considerations of this kind. Warby J’s task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible. A concurrent assessment of the facts was made by the Court of Appeal. Findings of this kind would only rarely be disturbed by this court, in the absence of some error of principle potentially critical to the outcome.
22. It was submitted on behalf of the defendant newspapers that there were errors of principle in the judge’s treatment of the facts. It was said that the injury to Mr Lachaux’s reputation was at least in part the result of artificial legal rules, notably the ‘repetition rule’ which treats as defamatory the reporting, even without endorsement, of another person’s statement; and the Dingle rule (see Associated Newspapers Ltd v Dingle  AC 371) that a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by other persons. The argument was that while these rules of law are well established, they do not affect the factual inquiry required by section 1, namely whether the harm caused by a particular publication was serious. It was also said that the judge should not have taken account of the damage that Mr Lachaux’s reputation might suffer in the eyes of people who might get to know him in future. Warby J must have rejected all of these submissions, and the Court of Appeal agreed with him. So do I.
“24. The effect of the Dingle rule is to treat evidence of damage to the claimant’s reputation done by earlier publications of the same matter as legally irrelevant to the question what damage was done by the particular publication complained of. It has been criticised, but it is well established. It has the pragmatic advantage of making it unnecessary to determine which of multiple publications of substantially the same statement occurred first, something which in the case of a newspaper would often be impossible to ascertain and might differ from one reader to the next. The judge was therefore entitled to apply it.”
“(5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott v Sampson (1882) QBD 491, on which I will expand a little …
24. Another exclusionary rule established by Scott v Sampson was a bar on reliance on rumours or reports to the same effect as the words complained of. A consequence is that, as a rule, other publications to the same effect as the libel are inadmissible in mitigation of damages: Dingle v Associated Newspapers Ltd  AC 371 (see Lord Denning at 410-411). But the court may need to ‘isolate’ the harm caused by the publication complained of from that caused by others: see Lord Denning in Dingle at 397-8 explaining Harrison v Pearce (1858) 1 F & F 567. This is relevant in this case, not least because the claimants rely on a variety of written and oral taunts and it will be necessary to consider whether these are shown to have resulted from the Vines libel, or the Collins speech.”
“51. The fourth issue of law is the extent to which the principle in Dingle v Associated Newspapers Ltd  AC 371 obviates any enquiry into the causation of the Claimants' various losses. This is a point which arose in oral argument and was not addressed in any detail in the skeleton arguments. It attracted a wave of further authority and helpful submissions from all Counsel, Mr Eardley in particular.
52. This issue arises because the Defendants say that the claims for special damage in particular all arise out of events which pre-date the first publication in this case, which was in October 2019. So, as a matter of causation it is contended that the Claimants cannot have suffered ‘serious harm’, or (in the case of the corporate Claimants) ‘serious financial loss’ which equates to ‘serious harm’. For the purposes of this argument on causation, it in fact matters not whether the harm complained of was or may have been caused by a separate defamatory article, namely that published by the Second Defendant on 25th May 2019 or, possibly, different articles altogether. What matters is that it cannot have been caused by anything done by the Defendants.
53. The cases I was referred to include Lachaux (at first instance ( QB 402) and in the Supreme Court), Economou v de Freitas (at first instance ( EMLR 4) and in the Court of Appeal ( EMLR 7)) and Harrison v Pearce (1858) 1 F & F 567.
55. Dingle expresses the principle that a defendant cannot rely in mitigation of damages on the fact that similar defamatory statements have been published about the same claimant by others. The case was concerned with what may be described (but I hope the term is not misunderstood) as ‘general damage to reputation’ in connection with a number of publications of substantially the same libel at more or less the same time. The legal policy behind the principle is that if a claimant had to identify which particular publication was causative or apportion the harm as between various publications each with an apparently similar causative impact he could not possibly do so.
56. However, that does not mean, as Sharp LJ explained (see para 41) in Economou, citing with approval paras 46-50 of the judgment of Dingemans J in Sobrinho v Impress Publishing SA  EMLR 12, that difficult points of causation cannot arise under s 1 of the Defamation Act 2013. Dingle was understood to be a decision about mitigation of loss rather than causation, and I have already identified the factual structure of the case that was under consideration by the House of Lords, viz. various similar publications at more or less the same time.
57. These causation problems may arise where there are limitation or jurisdictional issues. In my judgment, in line with principle and authority, they may also arise where a claimant seeks to ascribe a specific consequence to a particular publication, or where an examination of the claim for special damage demonstrates that the harm in question could not have been caused by the publication at issue. Thus, if a claimant says that X happened because of publication Y, or if it is clear to the court that the reason X happened was because of publication Y, it is no use the claimant suing publisher Z in respect of that consequence.”
“(1) As Mr Tomlinson [counsel for the claimant] points out, the general principle in tort law is that a defendant is liable for damage of which its wrongful conduct was a material cause. As Devlin J put it in Heskell v Continental Express  1 All ER 1033, 1047:
‘Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to evaluate competing causes and ascertain which of them is dominant.’
(2) So, if the evidence establishes some identifiable item or category of damage which is indivisible, and that the defendant's wrongful conduct was ‘a cause’, the defendant will be liable in respect of the whole of that damage. Any risk of injustice to the defendant falls to be dealt with by means of a claim for contribution against the joint tortfeasor(s) who were also responsible for the whole: Rahman v Arearose Ltd  QB 351  (Laws LJ).
(3) But this principle does not apply in a case where the evidence shows that (a) each tortfeasor caused some part of the damage, but (b) neither caused the whole, and (c) the claimant would have sustained some part (but not all) of the damage if only one of the torts had been committed, but (d) on the evidence, it is impossible to identify with any precision what part or element of the damage has been caused by which defendant. In such a case: ‘The fact-finding court's duty is to arrive at a just conclusion on the evidence as to the respective damage caused by each defendant, even if it can only do it on a broad-brush basis which then has to be translated into percentages.’ Rahman v Arearose [21-23] (the citation is from ).
(4) This is also the approach that must be adopted, in my view, to a claim for general damages for libel or misuse of private information where the evidence shows that several publishers simultaneously published the same, or similar, content and the Court is seeking to identify an appropriate figure for the overall, or general impact, of the wrong committed by one of those publishers. This is not a case of a single indivisible item or head of loss or damage caused by concurrent tortfeasors, for reasons explained by Laws J in Rahman v Arearose. The harm is non-material and cannot, in itself, be observed. Usually, the right inference will be that some publishers caused some damage by defaming the claimant, or wrongfully conveying his private information, to one group of readers; and other publishers caused other damage by traducing the claimant, or exposing his private information, to different or additional readers. The evidence is likely to suggest such a conclusion, but without enabling the court to be precise.
(5) But the position is different when it comes to specific items of loss, or particular events that are relied on as evidence of damage. These are subject to the general rule above: the claimant is entitled to succeed if he establishes that the defendant's wrongdoing was a cause of the item or event, but if the evidence shows that it was not, or he fails to persuade the court that it was, that aspect of the claim will fail.
(6) The rule in Dingle has no bearing on the above. It is a rule of evidence or case management, grounded in pragmatic considerations. Its ratio is that, whilst the defendant to a claim in defamation may prove, in mitigation, that the claimant had a pre-existing general bad reputation, this may not be done by relying on other publications to the same or similar effect: see my decision in Lachaux at first instance  QB 402 ff, and the passage cited above from the judgment of Lord Sumption when the case reached the Supreme Court. I note that Jay J has recently reached essentially the same conclusion in the libel case of Napag Trading Ltd v Gedi Gruppo Editoriale SpA  EWHC 3034 (QB): see ff esp. [55-57] and .
(7) Consistently with the above, the rule in Dingle does not relieve the Court of the duty of ‘isolating’ the damage caused by the defendant tortfeasor from any harm that others may have caused to the same interest of the claimant.
(8) Points (5) and (7) above often arise in conjunction in cases where the claimant has been the subject of defamation or other injurious publication by two or more persons, and proves that he was taunted or abused, or shunned or avoided, by people who formerly enjoyed his company. In such a case, the Court must review causation to determine whether to compensate the claimant on the basis that such taunts and so forth were a consequence of the defendant's tortious behaviour: A case in point is Barron v Vines  EWHC 1226 (QB) , [44-50].”
(iii) The matters in dispute
a. As to the colour of the text itself (in line with CPR Practice Direction 17):
i. Black text connotes text in the Original Defence;
ii. Red text connotes text added in the Amended Defence;
iii. Green text connotes text added as draft re-amendment. There is no application to re-amend, but the Claimant is not insisting.
As to the colours of the highlighting (agreed between the parties):
i. GREEN HIGHLIGHTING is for proposed re-amendments (which are entirely deletions to existing text) to which the Claimant agrees [I interpolate here, these include the defences which the Defendant is no longer relying upon];
ii. PINK HIGHLIGHTING is for existing text in the Amended Defence which the Claimant continues to pursue his strike-out application;
iii. BLUE HIGHLIGHTING is for proposed re-amendments (which are either entirely new text, or newly inserted language taken from other parts of the pleading which is being abandoned by re-amendment).
15. Absent the Claimant’s consent, the Court’s permission is required to make the BLUE HIGHLIGHTED re-amendments.
16. The Claimant actively opposes these BLUE HIGHLIGHTED re-amendments insofar as they appear in paragraphs 1-36, for the same reasons as he persists in the strike-out of the PINK HIGHLIGHTED text.
17. The Claimant does not oppose the BLUE HIGHLIGHTED amendments to paragraphs 37 to 39 insofar as they relate only to mitigation of damages, not to ‘serious harm.’
18. However, if (but only if) the PINK HIGHLIGHTED text is struck-out, the Claimant has said he will voluntarily drop his Aggravated Damages plea, as the additional damages which might accrue would not be worth the additional days of trial which would be needed to try the BLUE HIGHLIGHTED passages at paragraphs 37-39 as a response to Aggravated Damages.”
a. admit that ‘Satoshi Nakamoto’ is generally believed within the worldwide Bitcoin and cryptocurrency community to be the individual or group of persons who originally created Bitcoin; but
b. plead that whether or not it is generally believed or accepted that Satoshi is or may be one individual or a group of individuals is immaterial for the purposes of this claim.
“7.3 This is for two reasons. First, the Claimant and others on his behalf have made repeated public statements, since at least 2015, that it is the Claimant himself who is Satoshi Nakamoto, the creator of Bitcoin. To this end, in April and May 2016 the Claimant claimed publicly and in private that he would prove that he was Satoshi Nakamoto by carrying out exercises using Satoshi’s private cryptographic keys. Those exercises (“the April / May 2016 exercises”)
very publicly failed, leading led to the widely held and expressed view in the Bitcoin and cryptocurrency community that the Claimant’s continuing claim to be Satoshi Nakamoto was a sham (as set out in paragraphs 22.20 to 22.29 below). Second, if Satoshi Nakamoto is a group of individuals, the Claimant’s claim to be Satoshi is a claim that he is an individual within the group who has control of the private cryptographic keys associated with the critical earliest blocks in the blockchain.
7.4 The facts in paragraph 7.3 above were, at the time of the publications complained of, generally known in the worldwide Bitcoin and cryptocurrency community, including by all or at least a very large majority of those who read the [ten] Tweets[, and/or viewed the video,] complained of or any of them, readers of the Defendant’s Tweets[, and viewers of the video,] being persons with a special interest in and knowledge of Bitcoin and cryptocurrency.
7.4A The Defendant will contend that, to the readers referred to in paragraph 7.4 above, by way of that innuendo plea, the words complained of meant and were understood to mean that the Claimant’s claim to be Satoshi Nakamoto (the pseudonymous person or one of the group of people who created Bitcoin) was fraudulent, in that it was a lie, as demonstrated by his own failed promises to provide cryptographic proof of that claim.”
“… the Defendant intends to make submissions at trial upon such of that material as is appropriate in support of the following pleaded issues (which do not “offend” Dingle):
(a) innuendo meaning (specifically the particulars in ¶5 AmPoC, ¶¶7.3-7.4 ReAmDef, which are in rebuttal of the Claimant’s innuendo particulars, and ¶¶6-7 AmR);
(b) causation of serious harm (¶¶25 AmPoC and ¶¶18-19 ReAmDef);
(c) rebuttal of aggravated damages, which relies in part on the Defendant’s rebuttal of particulars of serious harm, in response to the Claimant’s adoption of his case on serious harm in support of his aggravated damages plea (¶¶26 AmPoC and ¶¶37 ReAmDef); and
(d) mitigation of damages (general bad reputation or notoriety and Burstein relevant background context) (¶39 ReAmDef).
“New Clues Suggest Craig Wright, Suspected bitcoin Creator, May Be a Hoaxer
Doubts about Wright’s academic credentials and supercomputer achievements hint that he could have faked the clues identifying him as bitcoin’s creator”
“Text Analysis confirms Craig Wright is not Satoshi Sakamoto”
This article went on:
“Both Gizmodo and Wired reported in December that Wright, a 44 year old Australian cryptocurrency expert, might be the pseudonymous Nakamoto. The reports set off a flurry of speculation, with many claiming Wright wasn’t Nakamoto but had masterminded a hoax. Both Wired and Gizmodo acknowledged this possibility in their initial reports.”
“Craig Wright is not Satoshi.
Anymore of this sh!t, we delist !”
“Craig Wright is a scammer and a fraud, @CALVINAYRE and @RealCoinGeek are using their platform to illegally threaten and risk the well-being of an individual.”
“37. …. I refer to what defamation lawyers call a reverse innuendo: a meaning less injurious than the ordinary meaning of the words, that will be conveyed to readers because of some facts they know, which go beyond matters that are common knowledge. It is clear law that a defendant who wishes to advance a case that words complained of bore such a meaning must serve a statement of case that identifies the facts that are said to have been known, and the basis for saying that readers knew them …”
“Where it is the defendant who relies on extrinsic facts to show that words defamatory in their natural and ordinary meaning did not convey to those to whom they were published a defamatory meaning, he must show that all the persons to whom the words were published knew the facts, since otherwise the claimant will have been defamed to those persons who did not know the facts.”
“… a defendant who can only show that some readers knew the extrinsic facts he prays in aid will, by the same token, only be able make out a partial defence of justification. It cannot avail him in respect of any readers who were unaware of the relevant facts.”
a. to support some positive defence (eg, a Lucas-Box meaning for the purposes of the defence of truth (Lucas-Box v News Group Newspapers Ltd  1 WLR 147), or a Bonnick v Morris meaning (the defendant’s intended meaning in support of a public interest defence) (Bonnick v Morris  1 AC 300)). However, the Claimant says there is no longer any positive defence in these proceedings.
b. to lessen the harm, and thus reduce the damages payable to the claimant, because the defamatory sting is not as serious as that pleaded by the claimant.
a. that the Claimant ‘failed to prove that he was Satoshi’ in 2016; and
b. that there was a ‘widely held and expressed view in the Bitcoin and cryptocurrency community that the Claimant’s continuing claim to be Satoshi was a sham’.
“It is not disputed by the Claimant that there has been a significant public controversy over the years about the Claimant’s claim to be Satoshi, and that others have accused him of making false claims to that effect. However, what the Defendant is seeking to do in this case, namely rely at trial upon a vast amount of (unpleaded) material comprising publications by third parties allegedly to the same or similar effect as the words complained of, is legally impermissible.”
“It will be particularly important that a defendant can do this now that the claimant must establish serious harm, for the defendant’s innuendo meaning may be less likely to cause serious harm than the claimant’s, because of what, by way of the defendant’s innuendo facts, the reasonable publishee will be taken to know, and to bring to his/her interpretation of the words complained of.”
“The Defendant’s counter-case on innuendo meaning is to rely on (limited) further facts which, he will contend, were or would have been, also known to his readers, namely that (a) the Claimant had been publicly claiming since 2015 that he was Satoshi Nakamoto, and (b) that as a result of events involving the Claimant in 2016 there had been, ever since, a widely held and expressed view in the Bitcoin and cryptocurrency community that the Claimant’s continuing claim to be Satoshi Nakamoto was a sham.”
“At one time in our law it was permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel. That has long since ceased to be allowed, and for a good reason. Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation.”
“Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff. If it refers to the same matter as the libel, it tends to prove a justification and is therefore not admissible in mitigation of damages but only in support of a plea of justification. If it refers to something different from the libel, it cannot be admitted because it is specific misconduct which it is not considered fair that you should bring up against him, see Speidel v. Plato Films Ltd”
“Most of the readers of the first to fifteenth publications, and viewers of the sixteenth publication, were likely to be persons with a special interest in and knowledge of bitcoin and cryptocurrency because of the nature of my journalism and audience. The likelihood is that all, or the vast majority, of the readers or viewers of those publications would as a result of that interest have already seen at least some of the widespread publications alleging that the Claimant was fraudulently claiming to be Satoshi Nakamoto before any of the publications complained of were published.”
“The inference will be invited that the readership of publications one to eleven were. in a similar manner to the readership of publications twelve to fifteen, influential Twitter users who were often active in the field directly related to the Claimant's field of employment and area of interest. namely the cryptocurrency sphere. The Defendant will also rely, in support of this contention, on the responses to publications twelve to fifteen by other Twitter users. In particular …”
“As to paragraph 25.8 it is admitted and averred that the readers of the [First to Fifteenth ]Publications[, and viewers of the Sixteenth Publication,] were persons with a special interest in and knowledge of bitcoin and cryptocurrency. All, or the vast majority, of the readers or viewers of those publications would have learnt of the notorious allegation that the Claimant had fraudulently claimed to be Satoshi Nakomoto, which arose out of
his failed promises to prove he was Satoshithe April / May 2016 exercises and which formed an intrinsic part of his reputation, from sources other than the publications complained of, as summarised in paragraphs 7.1 to 7.4 above. For example, the hashtags “#faketoshi” and “#CraigWrightIsAFraud” were extensively and routinely linked to the Claimant on Twitter by numerous users far more prominent than the Defendant. Paragraph 19 below is repeated. The meaning of the allegation that such readers were “influential Twitter users who were often active in the field directly related to the Claimant’s field of employment and area of interest, namely the cryptocurrency sphere” is excessively vague and not admitted. [As to the sub-paragraphs to paragraph 25.8:”
a. plead and prove a case on general bad reputation by calling witnesses who know the Claimant who could give such evidence;
b. identify specific harm caused by other publications under the Rule of Isolation;
c. plead other awards of damages or settlements under s 12 of the Defamation Act 1952, but only in mitigation of damages;
d. if found liable for publications to publishees who also read third-party publications, to bring a claim for a contribution under the Civil Liability (Contribution) Act 1978 Act.
“All, or the vast majority, of those operating within those spheres (and particularly those who came into contact with the Claimant) would have learnt of the notorious allegation that the Claimant had fraudulently claimed to be Satoshi Nakomoto, which arose out of
his failed promises to prove he was Satoshi the April/May 2016 exercises and which formed an intrinsic part of his reputation, from sources other than the publications complained of.”
“These claims brought by the Claimant further demonstrate the general notoriety of the allegation that he had fraudulently claimed to be Satoshi Nakamoto. Further, insofar as the Claimant invites the court to infer that serious harm to his reputation was caused by the publications complained of in this claim, such a case on causation is negated by the fact and nature of the other proceedings brought by the Claimant in respect of other publications with the same meaning during the same period."
“The problem is particularly acute when it comes to identifying alternative candidate causes for specific pleaded instances of serious harm. The Defendant has not even tried to do this in his pleading; but if he were to do so, he would need to identify particular publications which he contends caused the specific harm alleged; these would need to be in the correct date range (e.g. during the short pleaded period when the booked conferences were cancelled); would need at least arguably to have been viewed by the same audience as the publications complained of; and would need to bear a meaning at least as seriously defamatory as the Defendant’s publications. Otherwise, they could not be viable alternative candidate causes.”
“In relation to the Conferences, the invitations cancelled are pleaded at §25.9.2 APoC. The invitations were made in the months before they were cancelled, and then the Claimant was disinvited after the Defendant’s publications. While he might be able to identify specific alternative causes (including publications) if they fell in the same time period (March-April 2019), he could have no arguable case in respect of the many pre-2019 publications he relies upon as a confounding factor.”
“18.10.1 the allegation that the Claimant had fraudulently claimed to be Satoshi Nakamoto (arising out of
his failed promises to prove himself as suchthe April / May 2016 exercises) was notorious and an intrinsic part of his reputation, as would have been readily apparent at any material time from a Google search on the Claimant’s name; a search which it is reasonably assumed those involved in the recruitment process at the Ministry of Justice would have carried out;
“All or at least a very large majority of the readers [and viewers] of the publications complained of, being people with a particular and/or specialist interest in the bitcoin and cryptocurrency sector, would have known the historic context for the Defendant’s allegation that the Claimant was variously "not Satoshi" or "a fraud" or "repeatedly and fraudulently claimed to be Satoshi", namely that summarised in paragraphs 7.1 to 7.4 above. In other words, the allegation - and its basis in the
Claimant’s failed promises to prove he was Satoshi Nakamoto April / May 2016 exercises – was notorious and had been the subject since May 2016 of continuous widespread global publication within the bitcoin and cryptocurrency sector and in mainstream media, and had thereby become an inherent part of the Claimant’s global public reputation. If necessary, the Defendant will refer to the mass of statements published worldwide, including in this jurisdiction, between 2016 and today which demonstrate this.”
the allegation that the Claimant was not Satoshi or fraudulently claimed to be so, was the direct result of the Claimant’s own conduct in publicly promising and then failing to prove he was Satoshi in and since April and May 2016. It could not therefore be damage to reputation about which the Claimant could complain in any event. Moreover, the Claimant’s stated objective in bringing these proceedings (according to Mr Ayre on his behalf in a tweet on 16 April 2019, four days after the letter of claim was sent to the Defendant and one day before these proceedings were issued: see paragraph 20.1 below), namely to induce "a moron" to "bankrupt themselves trying to prove a negative and then letting Craig show the proof" (that he was Satoshi Nakamoto), by itself demonstrates that the Defendant’s publications did not and were not likely to cause serious harm to his reputation. For, were it otherwise, the Claimant would have "shown the proof" before now rather than allowing the allegation to be continuously recycled in the bitcoin and cryptocurrency sector since May 2016. Further, the Defendant will rely on paragraph 20.3 below to contend that the proceedings are not a genuine attempt by the Claimant to vindicate the alleged harm to his reputation, but are a commercial endeavour controlled by third parties for their own and the Claimant’s commercial gain.”
“In all these circumstances, for the claim to be actionable the Claimant would have to prove: (a) that he suffered or is likely to suffer serious harm to his reputation in this jurisdiction as a matter of actual provable fact, (b) that it was the actual impact of the
Defendant’s ten Tweets publications complained of on those to whom the words were published in this jurisdiction specifically which caused that effect, and (c) that it was not caused by the Claimant’s notorious failure to prove allegation that the Claimant was had fraudulently claimed to be Satoshi in May 2016, notwithstanding his own promises to do so, and/or published accounts of and/or commentary on that failure allegation, and/or any or a combination of the mass of other publications as aforesaid, including those outside this jurisdiction.”
“In order to assist in the proportionate disposal of this case (and not because the Claimant does not believe his case as to the Defendant’s state of mind to be well founded), if the Court agreed that the Defendant should not be allowed to amend to include the ‘failed’ experiment allegation, or as to the publications by third parties, and thus extend the trial, the Claimant would be prepared to drop his case for aggravated damages, as pleaded in paragraphs 26.3 to 26.8, and 26A of the draft Re-Amended Particulars of Claim, as it is acknowledged that the Defendant would be within his rights to rely on such facts to rebut allegations based on his state of mind. However, this abandonment of the aggravated damages plea would necessarily be contingent on the court striking out those parts of the Amended Defence in which the Defendant continues to advance a case that the Claimant had failed in 2016 to prove he was Satoshi, and as to the third-party publications.”
“The principle is to make sure a claimant doesn't get vindication that he doesn't deserve because his reputation actually doesn't stand for it. That's why, in some situations the court would be prepared to take into account evidence which is described variously as directly relevant background context; in other words evidence which sheds some light on what it is that the claimant is alleged to have done short of truth, or in another related aspect of his sector of his reputations. The point being that the court shouldn't be in blinkers when it makes a decision about whether to award somebody damages. And we suggest that this case is actually, at the very least, arguably in the Burstein arena and could even be a relatively good example of it when you look at again, as I say, the background to the claimant's claim, which is the notoriety arisen as a result of his claims to be Satoshi and the perception that he's scamming everyone because he's never actually proven it.”
“The Court of Appeal in Burstein's case was concerned to avoid jurors having to assess damages while wearing blinkers. If evidence is to qualify under the principle spelt out in Burstein's case, it has to be evidence which is so clearly relevant to the subject matter of the libel or to the claimant's reputation or sensitivity in that part of his life that there would be a real risk of the jury assessing damages on a false basis if they were kept in ignorance of the facts to which the evidence relates.”
The Defendant’s Third Witness Statement