CA-2024-001499 - [2025] EWCA Civ 1321

Mr Fox advanced two main grounds of appeal. The first was that the judge erred in law in her approach to his case on serious harm. It was said that the judge (a) was wrong to treat the tweets complained of as inherently less likely to cause serious harm to his reputation because they were expressions of opinion, (b) failed to apply the law on proving bad reputation and, (c) in particular, failed to apply the rule in Dingle. The second ground of appeal was that it was not open to the judge to find that the claimants’ tweets were not causative of serious harm to Mr Fox’s reputation, “with particular regard” to the two specific heads of consequential harm that were relied on.

Permission to pursue these and other grounds of appeal was refused by the judge. As to the first ground she said that Mr Fox’s argument on the issue of fact or opinion relied on a confused analysis; the rule in Dingle “was not cited or argued before me in relation to either liability or damages” and was “a frequent source of error in submissions” of which Mr Fox’s proposed grounds were an illustration; and her judgment did not involve a finding of bad reputation but was an “orthodox evidential exercise in the isolation of the reputation harm caused by the publications complained of …”. The second ground of appeal was said to involve a “sweeping assertion of perversity” which disregarded “fatal defects in the substructure of causation apparent in the counterclaims”. I granted Mr Fox’s renewed application in respect of these two grounds.

Patrick Green KC, leading Alexandra Marzec and Greg Callus, submitted in support of ground 1(a) that the judge’s conclusion that the claimants’ tweets were less harmful on account of being expressions of opinion was contrary to authority and unsustainable on the facts. In this connection he referred us to the discussion in Morgan v Associated Newspapers Ltd [2018] EWHC 1725 (QB), [2018] EMLR 25 at [17]-[31] (Nicklin J). In support of ground 1(b), it was submitted that the judge had wrongly relied on specific incidents to conclude that Mr Fox had acquired a bad reputation as a racist, and implicitly that he deserved such a reputation, so that his claim failed on causation. The claimants had abandoned their plea that Mr Fox had a general bad reputation, and in any event specific incidents are not admissible for this purpose. Reliance on such incidents was wrong for other reasons too. The incidents cited were taken from Ms Thorp’s defence of truth. That defence had not been adopted by Mr Blake or Mr Seymour. It had not been adjudicated upon. It included many post-publication incidents which could not logically go to show prior bad reputation. And even if the evidence as to truth had shown that Mr Fox deserved a bad reputation this court’s decision in Wright v McCormack showed that would not logically bear on the threshold factual issue of whether the tweets caused serious harm to his actual reputation. On ground 1(c), the submission was that it was clear from the judgment, and in particular paragraphs [145] and [148], that the judge had treated previous third-party publications, including the 15 contested tweets, as evidence that Mr Fox had a general bad reputation as a racist, in violation of the rule in Dingle.

As to ground 2, it was submitted that the judge’s decisions as to the lack of serious harm were vitiated by a series of errors. She had approached the issues speculatively, by “inventing” alternative reasons for the decision of Mr Fox’s agent to drop him; she had asked herself whether the tweets complained of were more probably causative of that decision than these other alternatives, when she should have applied the principle of material contribution; and her findings were contrary to the evidence before the court.

The claimants’ case was presented by Adrienne Page KC, leading Godwin Busuttil and Beth Grossman. Their overall submission was that the judge had made no error of law or principle let alone one that was critical to the outcome and that the judge’s factual conclusions were ones that were reasonably open to her on the evidence. We were reminded of the caution an appellate court must show when confronted with challenges to factual findings or evaluative decisions reached by a court of first instance, or complaints of insufficient evidence or reasoning. We were referred to well-known authorities such as Henderson v Foxworth [2014] UKSC 41, [2014] 1 WLR 2600; Fage UK Ltdv Chobani Ltd [2014] EWCA Civ 4, [2014] FSR 29 [114]-117]; Re Sprintroom Ltd [2019] EWCA Civ 932,[2019] BCC 1031; and Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 [2].

In relation to ground 1(a), it was submitted on behalf of the claimants that the judge had not applied any rule that an expression of opinion is less reputationally harmful than a statement of fact. She had properly applied her mind to the question of whether these particular expressions, in their context, were seriously harmful. On grounds 1(b) and (c) the claimants identified the judge’s “key findings” as follows: “that insofar as Mr Fox possessed a particular profile and reputation in relation to racism… in the days, weeks and months after ... publication of the [claimants’] tweets” this was amenable to the range of possible alternative causal explanations identified by the judge. There was nothing inherently objectionable about the judge taking account of the possible causative factors she mentioned. She was entitled to find that Mr Fox had failed to establish that the tweets were causative. Mr Fox’s team had not applied to strike out the pleaded reference to the 15 third-party tweets, nor objected to his being cross-examined about them, nor had the written closing submissions on his behalf raised objection. In any event the judge had “made no finding that Mr Fox had … at any time, acquired a reputation as a racist” as a matter of fact. The rule in Dingle was therefore irrelevant.

As to ground 2, Mr Fox’s criticism of the judge’s approach to causation was said to be unfair to the point of being abusive. The argument was that the case which Mr Fox ran at trial was not that the tweets had made a “material contribution” to the career damage and other harm complained of; he focused “conventionally” on the supposed causal relationship between the tweets and the specific harm alleged “to the exclusion of any other possible cause”. The judge could not properly be criticised for evaluating his case against that standard. In any event, the judge had adopted the material contribution test when dealing with general reputational harm. So far as the two specific matters are concerned, if there was a legal error it was immaterial: it was clear that the judge would have reached the same conclusion whatever test she applied.

This is no more than a summary of the main submissions on both sides, which were skilfully and attractively presented.