KB-2025-000232 - [2025] EWHC 1784 (KB)

Nonetheless, I have also considered the substantive position, that is to say whether the Claimant would succeed in establishing that the words complained of referred to him, if he was permitted to treat the “Claimant’s case for Trial of Preliminary Issues” document as part of his pleaded case (contrary to my primary conclusion set out above).

The first way that reference may be established is where the words used are such that the hypothetical reasonable reader / viewer acquainted with the claimant would believe that he was the person referred to (paras 59 – 62 above). As I have explained, subject to the “acquainted with” aspect, the question is to be approached in the same way as when the Court determines the natural and ordinary meaning of the words complained of (para 60 above). Accordingly, the question is what the hypothetical reasonable reader / viewer would understand; what any particular person knew or would understand is irrelevant, and the intention of the publisher is also irrelevant (para 55 above). Context is relevant and the hypothetical reader / viewer is taken to be representative of those who read / viewed the publication in question (para 55 above).

For the reasons set out in the following five paragraphs, the Claimant has not shown that the words used were such that the reasonable viewer who was acquainted with him would understand that he was the person referred to.

Firstly, this is not an instance where the Claimant relies upon something in the allegedly defamatory words themselves, contending that because of a known attribute of his, those words would be understood to refer to him (in their natural and ordinary meaning). There is nothing in those words themselves – set out at para 8.1 of the Particulars of Claim - that provides a link to the Claimant. The Defendant did not refer to “Chris Substack” when she spoke. Rather, the Claimant relies upon a proximate comment of a third party in the chat (Charlotte) regarding “Chris Substack”, as providing the basis for the reasonable viewer to have understood, in turn, that the words spoken by the Defendant referred to him. Accordingly, if there is to be a case on identification it is not one derived from the natural and ordinary meaning of the words complained of, but via a reference innuendo route – particular facts known to particular people that do not appear in the words themselves.

Secondly, whilst the Court did not have to reach a final view on this matter, the observations of the Court of Appeal in Dyson, indicate that the scope of the attributes of a claimant that are to be regarded as known to the hypothetical reasonable reader / viewer is a relatively narrow one. The question is what an “acquaintance” would know. The example given by Dingemans and Warby LJJ was a claimant’s age and “other outwardly obvious characteristics” (para 63 above; emphasis added). In a similar vein, their Lordships did not anticipate that this inquiry would generally involve the resolution of factual disputes and they agreed with counsel that the hypothetical reader or viewer was not someone who knew “full details about the claimant” (para 63 above). It appears to me that a pastime of the Claimant, namely his authorship of a particular blog does not come within this relatively narrow scope. Whilst recognising, of course, that the particular context is always important, further support for this view, is found in the nature of the non-exhaustive examples given at para 8-002 of Gatley, as Mr Hughes submitted (para 77 above). These included situations where the words complained of described the claimant by a nickname or pseudonym, a photograph, drawing or caricature, a description of his office or status, his residence or his physical likeness.

Although not articulated as such, the Claimant’s central contention appears to be based on a reference innuendo along the following lines, that some viewers of the YouTube video would have read the accompanying chat, that some of this number would have known of the Claimant’s Substack blog and some of these viewers would have known that he had recently posted about visiting St Michael’s on Wyre on 27 January 2024 and so put two and two together to conclude that he was the person being spoken about by the Defendant in the words complained of.

Thirdly, the name “Chris” is a relatively common one; and, whilst I have no evidence as to the numbers involved, it is evident that many people post on Substack. It also appears to be common ground that very many people have commented on social media about the Nicola Bulley case (para 11 above). On the face of it, “Chris Substack” potentially encompasses a significant number of people and is insufficiently specific to be understood by the reasonable viewer as referring to the Claimant. Insofar as the Claimant relies on the particular knowledge of particular people, that would need to be advanced as a reference innuendo case, as I have explained. Mr Ness is wrong in suggesting that it was incumbent on the Defendant to positively identify someone other than him who could be “Chris Substack”; the onus is on him to establish that the words used were such that the reasonable viewer who was acquainted with him would understand that he was the person referred to. (I add, for completeness, that there is nothing in the Claimant’s contention that by pleading a defence of truth, the Defendant accepted that the words referred to him; truth was plainly pleaded in the alternative and the Defendant made clear she disputed that the words used referred to the Claimant (paras 34 – 35 above).

Fourthly, as I have already highlighted at paras 88 - 89 above, the Claimant’s case as to the attributes he relies upon is less than clear. This is compounded by the fact that the Claimant chose not to file a witness statement and give evidence in support of his case. Accordingly, there is, for example, no evidence before the Court as to the number of subscribers that his blog had at the material time or as to the level of engagement with it on social media. Instead, the Claimant chose to rely on wide-sweeping assertions in his oral submissions (para 67 above), which were not set out in his Claimant’s Case document in advance and which were not the subject of any supporting evidence.

Finally, I turn to the second way that reference to the Claimant can be established, namely via a reference innuendo (para 59 above). As I have explained, this involves a distinct cause of action from a case based on the natural and ordinary meaning of the words used (para 66 above). It involves pleading the particular facts that are relied upon, the identity of those who had knowledge of these particular facts and any supporting inferences that are relied upon (para 66 above). Even if Mr Ness were permitted to rely on the “Claimant’s case for Trial of Preliminary Issue” document, it is evident that the contents of this document fall a long way short of meeting these requirements. Secondly, the Claimant has adduced no evidence to support a reference inuendo case. There are, for example, no witness statements from viewers of the YouTube video, indicating that they did understand that the Defendant was speaking of Mr Ness in the words complained of.

Accordingly, even if the Claimant was permitted to rely upon his “Claimant’s case for Trial of Preliminary Issue” document, he has failed to show that the words complained of referred to him.