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

The Claimant, Christopher Ness, brings claims for libel, false imprisonment and breach of the UK GDPR / Data Protection Act 2018 (“DPA 2018”). The libel claim relates to a YouTube video first published on 3 February 2024 and to five emails sent in the period 10 February – 8 March 2024. Although the five emails were not all sent to the same recipient, as I detail below, they have been referred to compendiously as the England Athletics emails and I will adopt that shorthand. The Defendant accepts that she spoke the words the Claimant relies upon in the YouTube video, but denies that she was involved in the publication of the emails.

By Order dated 7 March 2025, Master Davison directed a trial of the following preliminary issues (in whatever order the judge at trial decided appropriate):

By an Application Notice dated 19 February 2025, the Defendant had earlier applied to strike out the claim. In his 7 March 2025 Order, Master Davison directed that the strike out application be stood over to the Preliminary Issues Trial for further case management or, if appropriate, determination by the judge hearing that trial.

In the week before the hearing, the Defendant secured the services of Mr Hughes and Ms Meadows representing her on a pro bono basis. In their Skeleton Argument for the Preliminary Issues Trial, they addressed a number of substantive issues that went beyond the five issues identified by the Master (para 2 above) (“the Additional Issues”). These were: whether the “serious harm” test in section 1(1) of the Defamation Act 2013 was met; whether the defamation claim was an abuse of process in the Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] QB 946 (“Jameel”) sense; whether the false imprisonment claim as pleaded should be struck out as having no reasonable prospect of success; and whether the UK GDPR / DPA 2018 claim should be struck out on the bases that: (i) the Defendant was not the author of the England Athletics emails; (ii) the Claimant was not identifiable in the video and (iii) in any event, this claim was a Jamel abuse.

I indicated at the outset of the hearing that I did not propose to hear submissions on or rule on the Additional Issues at the Preliminary Issues Trial. Skeleton Arguments were exchanged on 27 June 2025. The Additional Issues went significantly beyond the scope of Master Davison’s 7 March 2025 Order. The Claimant had not been given sufficient advanced notice of these matters and he had not had the opportunity to address them in his Skeleton Argument. Whilst I gave Mr Hughes an opportunity to address me on this aspect, he indicated that having heard my provisional view, he did not seek to persuade me otherwise. I agree with him that it was in any event helpful for counsel to have identified the additional contentions that the Defendant would or may seek to pursue in relation to the outstanding strike out application (depending on the outcome of this Preliminary Issues Trial). I indicated that I would give the parties an opportunity to address consequential matters, including the outstanding strike out application, once this reserved judgment was handed down.

A trial of preliminary issues is now a common stage of defamation proceedings. The Preliminary Issues identified at (i) – (iii) are determined without the Court hearing any evidence. At the time when the Master directed the Preliminary Issues Trial, it did not appear that the Claimant was relying upon anything beyond the contents of the Particulars of Claim to support the proposition that the words complained of in the YouTube video referred to him. I explain how this position subsequently developed when I summarise the chronology of the proceedings below. It was apparent at the time of the 7 March 2025 Order that the determination of issue (v) would likely involve the Court hearing disputed evidence as to whether or not the Defendant played a role in the publication of the England Athletics emails. In the event, the Claimant did not serve any witness evidence; the Defendant served statements dated 3 April, 3 May and 26 June 2025. The Defendant gave oral evidence at the Preliminary Issues Trial and I permitted Mr Ness to cross-examine her, limiting his questioning to the issue of whether she was a publisher of the England Athletics emails.

For the avoidance of doubt, I emphasise (as I did at the hearing) that I am not concerned at this stage with any disputed matters that go beyond the scope of the Preliminary Issues.

As the Claimant was self-representing, I took steps at the outset of the hearing to check that he had access to all the relevant documentation and that he was clear about the issues that the Court would and would not decide at this trial. Mr Ness indicated that he would prefer to make his submissions after Mr Hughes had addressed me and so I adopted this course (after first hearing Ms Miller’s evidence). I indicated to Mr Ness that he was welcome to check with me if any aspect was not clear to him as the trial proceeded. He did this on several occasions.