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

The judge began with an Introduction identifying the parties and the issues. She then set out the Factual Background in three sub-chapters: (i) “the year 2020 in the UK” (ii) “Mr Fox’s national profile” and (iii) “the events of October 2020”. The second of these sub-chapters contained extensive detail of Mr Fox’s appearances on BBC Question Time, the “Delingpod” podcast, ITV’s Good Morning Britain on 22 January 2020, some tweets he posted on 23 January 2020, criticism of him by the actor’s union Equity, and Mr Fox’s response to the Black Lives Matter movement, including an article in TheSpectator published on 20 June 2020. She said that after this Mr Fox “continued to speak out”, that “his public comments continued to attract media attention”, and “he continued to divide opinion”. She referred to a tweet of 13 August 2020 which used the words “Lewis Hamilton’s white half”, stating that Mr Fox had explained this as a satirical prod at orthodox thinking on intersectionality but that “it was not universally received in that way.”

Next, the judge identified the Legal Framework. In this section of her judgment, having referred to s. 1(1) and Lachaux, the judge said this:

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… As I, and other judges, have said elsewhere, an inferential case is not an alternative to an evidential process; it has to be an evidential process.

51.. …since Lachaux, the serious harm test has been given close attention in a series of High Court and Court of Appeal decisions. This jurisprudence was recently summarised fully and clearly by Nicklin J in Amersi v Leslie [2023] EWHC 1368 (KB)at [143]-[163], a passage to which I have addressed myself carefully. I do not need to replicate that passage in full here, since there is no real dispute about the applicable law in this case; it turns largely on its facts. I do, however, note two headline points in particular, for present purposes.

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First, the jurisprudence has consistently highlighted that section 1(1) is a threshold test, and, in applying it, it is necessary not to lose sight of the basic tort rules of causation (Amersi at [157]). The language of causation is prominent in section 1(1). Evidence contrary to the imputation of causal responsibility is no less important than evidence tending to favour it (Miller & Power v Turner [2023] EWHC 2799 (KB) at [74]). A balanced and fully contextualised approach is needed to the assessment of what Lachaux called the inherent probabilities arising out of any factual matrix placed before a court.

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Second, that factual matrix must itself be clearly established by evidence. Section 1 requires a clear articulation, and an evidential basis, for what difference the publications and imputations complained of made (or were likely in future to make) in real life. Drawing inferences is not a process of speculative guesswork. It is a process whereby a court concludes that the evidence adduced enables a further inference of fact to be drawn (Amersi [158]; Miller & Power [73]).

The judge made no reference to Dingle nor to any of the other rules I have mentioned at [28] above.

In the next section of the judgment, entitled Analysis, the judge considered the parties’ cases on serious harm. She dealt first with the cases of Mr Blake and Mr Seymour, addressing what she described as “the Lachaux factors”: (a) the inherent gravity of the allegations (b) the extent of publication (c) the situation of the claimants and (d) the inherent probabilities and the balance of the evidence. Having done so, she concluded that it was “more likely than not that the ‘paedophile’ tweets have caused, or were likely to cause, serious harm to the respective reputations of Mr Blake and Mr Seymour…”. Having examined and rejected Mr Fox’s defence of qualified privilege she held that “in these circumstances … Mr Blake’s and Mr Seymour’s claims must succeed as to liability.”

The judge turned to Mr Fox’s case on serious harm. She began with an assessment of Mr Fox. She described him as “impressively articulate and indeed eloquent” witness, someone who “spoke from the heart, on occasion with disarming candour and self-deprecation” and who “often ‘says the wrong things’ and makes mistakes”. The judge drew from Mr Fox’s answers in cross-examination the conclusion that “he does not say what he thinks others want to hear; he gives voice to what he authentically thinks and feels… He appeared to me to have thoroughly and sincerely taken on the role of a conviction politician.” She observed that this was relevant to the present case for reasons she would go on to explain.

The judge summarised Mr Fox’s case, describing it as an “uncompromising” claim that “the three sets of accusations that he was a racist ruined his acting career, in particular.” She noted, however that “it is not essential for him to prove any of these particulars, in order to establish that the serious harm test is passed”. The judge then examined Mr Fox’s case, addressing the same four factors she had considered when dealing with the case against him.

Dealing with factor (a), the “gravity of the allegations”, the judge agreed (at [114]) that “these were grave allegations to make, in all the circumstances”. But she went on to say (at [115]) that “each was, however, an expression of opinion”. And she took that into account in considering “the inherent potential of the statements complained of to cause serious reputational harm to Mr Fox” ([118]). The judge explained that “we are here in a market-place of ideas, where different perspectives vie for attention, and where a high degree of contestability, not to say subjectivity, is apparent”. Mr Fox had himself made free use of the term “racist”, including his denunciation of Sainsbury’s, in circumstances where “ a substantial body of opinion at the time thought” that Sainsbury’s safe spaces policy “was positively anti-racist”. So these particular allegations of being a racist were “opinions offered in the context of a lively contest of ideas which Mr Fox had himself stimulated, some might think provocatively so, about what constitutes being racist.” The accusations of racism “might well be considered by publishees to say as much about the makers and their world view as they did about Mr Fox and his…”.

Addressing factor (b), the “extent of publication”, the judge said (at [119]) that this “must be regarded as a mass-publication case”; it was probable that the claimants’ accusations “reached as wide an audience as Mr Fox’s about them”. But she noted (at [120]) that others had called Mr Fox a racist because of his call to boycott Sainsbury’s. Further, Mr Fox’s paedophile tweets had republished the claimants’ allegations. That was “apparently what brought their particular accusations to national attention” and “to that extent Mr Fox cannot complain of serious harm caused thereby”. She said she would consider this further below.

Turning to factor (c), the “situation of the counterclaimant”, the judge said (at [121]) that this brought up “some important issues of causation”. She observed, again, that Mr Fox did not have to prove specific consequences of a publication to establish serious harm: “the serious harm of defamation lies in the changed minds of publishees and not anything they may do as a result”. But she said that he had put the impact on his career and his agent forward “as powerful evidence of that change of reputation”. At [122]-[140] the judge examined the evidence and arguments as to the causation of Ms Latimer’s decision, concluding that Mr Fox had not established on the balance of probabilities that it was caused by the tweets of which he complained.

The judge then addressed factor (d), the “inherent probabilities and the balance of the evidence”. She began at [141] by observing that, “standing back from Ms Latimer’s motivations …. and considering Mr Fox’s reputation and career more generally, the issues of causation only intensify”. She proceeded over the following sixteen paragraphs to consider a series of points before concluding at [158] that Mr Fox had “not discharged his burden of establishing that the three tweets of which he complains more probably than not caused, or were likely to cause, serious harm to his reputation.”

The points which led the judge to that conclusion included the following. Question Time had “a major impact on Mr Fox’s career” before the tweets complained of; Mr Fox had spoken at that time of being “cancelled” as an actor; he had turned down acting opportunities; the pandemic had a devastating impact on the performing arts; at the time Mr Fox had been giving some attention to his music career; and the “Sainsbury’s affair” coincided with the launch of Reclaim and “Mr Fox’s stepping on to the national political stage”. Further, said the judge, Mr Fox had accepted that at the time of “the post Question Time furore … many took the view that he had exhibited racism.” At [145] she said that “a substantial body of people” had responded to Mr Fox’s Question Time interventions “by calling him a racist”. In the same paragraph she said that between then and the tweets complained of he had been “challenged as a racist on Twitter in response to at least fifteen intervening episodes”. This was clearly a reference to the 15 tweets pleaded by the claimants. The judge went on to say that on 5 October 2020 Mr Fox had written of being “repeatedly, continuously” smeared as a racist. On 13 October 2020, he had told Nick Ferrari he had had “several months” of being called a racist.

At [146] the judge directed herself that in considering the probable causative impact of the tweets complained of she had to take into account that

…there are very many alternative explanations or sources of causative negative impact on Mr Fox’s reputation in general in the matter of racism, and on his career in particular – his own stimulation of controversy, the hostile views of the profession, the pandemic, his diversion into a political career, and the sheer number of other people who had joined in the debate he had publicly stimulated and taken public exception to his pronouncements.

At [147] the judge added that she also had to take into account “the potentially causative role of Mr Fox’s own contributions to the Sainsbury’s exchanges”. In a case of this kind a distinction had to be made between “the causative role of the calling out” (that is, the tweets complained of) and “the causative role of that which is called out” (that is, Mr Fox’s Sainsbury’s tweet). Whilst the calling out might “add to the damage” it was incumbent on the libel claimant in such a case to “provide a sound basis for understanding how, and that any additional harm merits the description of being serious.” The judge concluded (at [148]-[150]) that the odds of the claimants’ published opinions being “themselves causative of the current state of Mr Fox’s acting career, or any other serious reputational harm” were “extremely long”. The other factors she had mentioned were “agents of substantial causative power on his acting career which were operative at the time of the tweets sued on” and were likely to have had “a far greater impact”.

At [151]-[158] the judge considered the “longer view”. Accepting that Mr Fox had received some “very unpleasant treatment” between the date of publication and trial, and effectively stopped work as an actor, she found that there were other potentially causative factors at play. There was insufficient evidence that it was “to any material degree” the tweets sued on rather than these other factors, including Mr Fox’s own “chosen and sustained presentation as someone who sets out consciously to challenge public opinion on racism in the UK” that “materially account for his current profile and reputation in relation to racism among supporters and critics alike”. At [156]-[157], in passages of some importance to the issues on this appeal, the judge said this:

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There are indeed choices to be made about the exercise of free speech, and there are consequences …

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Choices about the exercise of your free public speech have reputational consequences in real life, because they cause other people to form or change an opinion about you. … Mr Fox speaks from the heart …. He knows that will have an effect on what people think of him…. Any passionate and campaigning theorist, commentator and activist challenging contemporary assumptions about racism will inevitably garner equally passionate critics. If he invokes defamation law to challenge their entitlement to express their own opinions on what he says or how he says it, he has to be ready in the first place to show, by reference to evidence and inherent probability, how his reputation - what people think of him - is seriously harmfully impacted in real life by their publications, as distinct from his, or indeed anyone else, or anything else.