![CA-2024-001499 - [2025] EWCA Civ 1321](https://backend.juristeca.com/files/emisores/logo_Sjvxvlx.png){kind=logo}
The appeal
The appeal
Mr Fox advanced two main grounds of appeal against the judge’s findings that the publication of his tweets caused serious reputational harm.
The first was that the judge erred in law by “elevating” the single meaning of the tweets as determined by the court into a major factor in the assessment of serious harm. The argument was that a claimant cannot simply invite an inference of serious harm from the gravity of the single meaning on the basis that readers understood the statement in that meaning. The claimant must prove as a fact that reputational harm was caused because readers took that meaning from the statement and believed that meaning to be true. I shall call this “the single meaning point”. Mr Fox maintained that the single meaning point was important on the facts of this case for two main reasons. Unusually, the actual context in which readers encountered Mr Fox’s tweets was wholly different from the context deemed admissible for the purposes of assessing their single meaning. To most if not all readers it will have been obvious immediately or soon after first reading that Mr Fox was using a baseless allegation to make a rhetorical point. Further, there was “no evidence that a single individual, who was not a party to the case, ever believed in any way that [Mr Blake or Mr Seymour] were paedophiles.”
At the hearing, this ground of appeal was presented by Mr Callus. He submitted that in practice the determination of reputational harm commonly rests on two assumptions: (a) that the single meaning of a published statement can be treated as a proxy for the “actual meaning” and (b) that, to some extent, that meaning is believed. But in some cases, of which this is an example, neither assumption can safely be made. This is because, when the court identifies the single meaning of a statement the only contextual material which it takes into account is that which all readers saw (see Riley v Murray [2020] EWHC 977 (QB), [2020] EMLR[15]-[17] (Nicklin J)). By contrast, in practice, those who read a statement on a social media platform such as Twitter will receive it in a fuller and different context which may have a significant impact on the meaning it conveys to that reader and whether they believe that meaning to be true. Mr Callus submitted that the judge had failed to take any or any adequate account of these points.
The second main ground of appeal was that the judge’s conclusion on serious harm was plainly wrong, or the product of serious irregularities. It was submitted that the judge failed properly to account for Mr Fox’s mitigating conduct and apology; to analyse the pleaded cases of Mr Blake and Mr Seymour and the evidence adduced in support of them; or to account for Mr Seymour’s litigation misconduct; and that she engaged in illogical reasoning. The submissions advanced included the following.
Both claimants relied on the scale of publication, but the judge “made no proper assessment” of the scale of Mr Fox’s own readership. The claimants’ republication of screenshots of Mr Fox’s tweets could not count towards reputational harm. Reports in the mainstream press could not count either, as none of them bore the single meaning and anyway their narrative quickly settled very favourably to the claimants. It was wrong in principle to treat homophobic reactions as relevant reputational harm. The judge’s findings in relation to harm caused by third-party internet searches about paedophile namesakes were untenable. The “unpleasant trolling” which both claimants had experienced on the day in question and for a day or two thereafter was not a proper basis for inferring that the allegation had been believed.
Mr Blake had pleaded that the paedophile allegation had several specific professional consequences involving Stonewall and MHFAE and an application for a post with an NHS trust. The evidence showed, to the contrary, that his position had not been jeopardised in any of these ways. His application for the NHS Trust role had succeeded. MHFAE had expressed support for Mr Blake. Stonewall’s statement about him was similarly positive. Yet paradoxically the judge used that statement “to found an inference as to Stonewall’s opinion, in order then to reach a finding that other people would have thought badly of him”.
Mr Seymour had not pleaded any professional consequences. He had brought up the subsequent drag queen controversy in a belated attempt to bolster his case on serious harm. This was case that relied on inadmissible evidence and “came crashing down” in cross-examination. The judge’s treatment of the issue was unfair and inadequate. She should have taken it into account against Mr Seymour, as had been urged on behalf of Mr Fox.
As for the appeal on damages, Mr Fox made no criticism of the judge’s analysis of the relevant legal principles. The single ground of appeal was that her assessment was perverse. A range of specific criticisms was advanced. Unsurprisingly, these overlapped substantially with Mr Fox’s criticisms of the judge’s approach to serious harm. It was submitted that her awards failed to account for the claimants’ provocation of Mr Fox’s tweets; for the claimants’ own contribution to the scale of publication; for the likelihood that many readers will not have taken them seriously; for the steps taken by Mr Fox to mitigate any harm, and the evidence of a lack of malice on his part; or for the claimants’ misconduct after the publication complained of, including during the litigation. It was argued that the awards were in any event so far out of step with awards for personal injury as to be “an outcome not available ... on the evidence”.