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

Mr Fox’s case, that by calling him a racist the claimants caused or were likely to cause serious harm to his reputation, was set out in paragraph 80 of his Counterclaim. It had several strands. He relied on (1) the inherent gravity of the imputation; (2) the scale or extent of the readership; (3) an inference that, as his tweets had provided no rational basis for an allegation of racism, readers would suppose that the claimants had some extraneous evidence for that allegation; (4) the claimants’ failure to take down, correct or apologise for the tweets; (5) an inferential case that in those circumstances these allegations, by individuals with large Twitter followings, “will have stuck”; (6) a factual case, supported by illustrations, that the allegations did in fact “stick”, such that “the (false) idea that the Defendant is a racist, and that it is acceptable and justifiable to accuse him of being a racist, has become accepted and mainstream” and Mr Fox had become a hate figure; (7) widespread republication of the claimants’ allegations in media reports of the dispute; (8) a contention that the tweets had caused his agent, Sue Latimer, to drop him, and caused serious damage to his prospects of well-remunerated acting work. He initially claimed damages for financial loss but later dropped that part of his case.

In support of his case that the allegations had “stuck” as a matter of fact (strand (6) above), Mr Fox relied on four specific events in April 2021 which he attributed to the tweets complained of. A sub-editor called Liz Tray had accused him on Twitter of being a racist; on two occasions faeces had been posted through his door; and he had received a letter offering him guns and grenades from someone styling himself “White Wolf” who “appears to regard the Defendant as someone who wants to take part in a violent race war”. Mr Fox also pleaded as follows.

Although there were instances of people on Twitter calling him racist before the Claimants did so, those were isolated tweets with very little engagement. The Claimants were the first to make these allegations to tens of thousands of people. This has emboldened many more individuals to accuse him publicly of being a racist believing that they are entitled to do so with impunity. The Defendant will rely on all the many occasions that he has been accused of racism since the publication of the words complained of and will give disclosure of the same at the appropriate time.

The Defence to Counterclaim denied that the publication of any of the tweets complained of had caused serious reputational harm or was likely to do so. It went on to state that “no admissions are made” as to any of the strands of Mr Fox’s case that I have identified, “except as set out below”. The sub-paragraphs that followed made five main points of relevance. In summary, these were: (1) the expression of an opinion that Mr Fox was a racist was “not of a nature that would cause, or be likely to cause, serious harm” to his reputation; (2) Mr Fox “had been described publicly as a racist before the date of publication” following his Question Time appearance and in response to other things he had said; (3) Mr Fox had “made a number of highly controversial statements about race prior to 4 October 2020 and thereafter” which “tend to attract condemnation and criticism”; (4) it was at best unlikely that any of the four specific events relied on resulted from the claimants’ tweets; there were several other plausible explanations; (5) it was for Mr Fox to prove that the claimants’ tweets were causative of the end of his relationship with his agent, and his acting career, which was disputed; the claimants suggested that any harm to Mr Fox’s acting career had resulted from his own conduct on other occasions and/or his decision to move into politics.

No details of “controversial statements about race” were pleaded (point (3) above). In support of their plea that Mr Fox had been “described publicly as a racist” (point (2) above) the claimants did cite 15 specific occasions between February and September 2020 on which identified Twitter users had used that word or similar language to refer to Mr Fox or his views. Mr Fox’s pleaded response was that these facts and matters

... are legally irrelevant and evidence on such matters is inadmissible as a matter of law. It is not permissible for a defendant in a libel case to rely on publications by other people containing the same or similar defamatory allegations against the claimant in order to mitigate damages, or rebut a case on serious harm: Dingle v Associated Newspapers Limited [1964] AC 371; Wright v McCormack [2021] EWHC 2671 (QB).

The claimants then set out their affirmative defences. Mr Blake and Mr Seymour said that the statutory conditions for the defence of honest opinion were met because, among other things, an honest person could have formed the opinion that Mr Fox was a racist on the basis of the two Sainsbury’s tweets, the Sainsbury’s BLM statement, and Mr Fox’s Sainsbury’s tweet (that is, the matters set out at [12]-[13] above). Ms Thorp relied on those same matters in support of her defence that the allegation that Mr Fox was a racist was substantially true. But she went much further. She relied on Mr Fox’s Question Time appearance in January 2020 and five other things that Mr Fox had said and done between then and 4 October 2020. She also relied on a number of further statements made by Mr Fox on and between 6 December 2020 and 26 September 2023, which were detailed in 26 further sub-paragraphs.

In response to Mr Fox’s claim for damages the claimants relied on the matters they had pleaded on the issue of serious harm and advanced four further contentions: (a) that Mr Fox’s own conduct had provoked the publications complained of; (b) a Pamplin argument, that damages should be reduced on account of any facts alleged in support of the defences of truth and honest opinion that were found proved; (c) further and alternatively, relying on Burstein, thatthe facts relied on to support the truth defence were “directly relevant background context” to the continuing publication of the tweets; (d) in the further alternative, that Mr Fox had a “general reputation as a racist as at the date of publication of their tweets and afterwards”. Mr Fox’s Reply took issue with all of these matters. He complained that the plea of bad reputation was “legally impermissible” because (among other things) “the claimants are not permitted to rely on other publications under the rule in Dingle”.

The parties’ submissions at trial on the issue of reputational harm largely followed the lines set out in their statements of case. The relevant section of the skeleton argument for Mr Fox opened with reference to the gravity of the allegation and the scale of publication. On the latter topic, reliance was placed on a detailed analysis of the evidence conducted by Mr Fox’s legal team. This used “impressions” (instances where a tweet is generated on a screen where Twitter is in use) as a proxy for the scale of publication of a tweet and relied on the available Twitter Analytics to identify or estimate the number of impressions. The estimated numbers of impressions for the three tweets complained of were 766,000 for Ms Thorp’s, 739,000 for Mr Blake’s, and 451,000 for Mr Seymour’s. There does not appear to have been any challenge to this analysis at the trial.

Mr Fox also maintained reliance on the specific events I have mentioned. Indeed, he placed rather more weight on them, contending that they “left little room for dispute” that his reputation had been seriously harmed. He said the biggest impact had been on his professional life, manifested in the loss of his agent and a significant decline in the quantity and quality of roles and professional appearances offered to him. Mr Fox repeated his objection, based on the rule in Dingle, to the claimants’ reliance on the 15 third-party tweets. He objected to their inclusion in the trial bundle. The skeleton argument added that Dingle also meant that none of the claimants could rely in mitigation of damages on the fact that the other claimants had simultaneously tweeted the same message about Mr Fox. It was submitted that each of the claimants’ tweets had made a material causal contribution to a single indivisible injury so that they were all concurrently liable for the entirety of the reputational harm that had occurred.

For their part, the claimants maintained their pleaded responses, with one exception. They did not pursue their plea of general bad reputation. The issue was not included in the agreed list of issues, and the claimants called no witness to give evidence of general bad reputation. The claimants did deploy the 15 tweets. On the fourth day of the trial copies were provided to the judge. The tweets were then relied on in cross-examination of Mr Fox. He was presented with the pleaded list, and it was suggested that he had previously had numerous allegations of racism made against him. The claimants expanded on their case about causation. They maintained that “the rule in Dingle does not prohibit a defendant from adducing evidence of publication of the same or similar allegations elsewhere as part of the scope of examining causation”. They argued that it was legitimate for them to adduce evidence of Mr Fox’s own past conduct and the public reaction to it as evidence going to the issue of serious harm. At “the heart of” their case on serious harm was the proposition that “to the extent that” Mr Fox had been harmed in his reputation, it was “[his] own conduct not [the claimants’] comments on it, that caused that harm.”