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

Mr Hughes submitted that the case on reference had to be determined by reference to the Particulars of Claim, which had been professionally drafted. The Particulars of Claim made no reference to the “Chris Substack” comment and he contended the Claimant should not be permitted to rely upon this. The document that the Claimant filed to comply with para 4 of Master Davison’s Order of 7 March 2025 (para 30 above) was intended to be an opportunity for the Claimant to make supporting submissions on his pleaded case, not to alter his case without formal amendment. None of the specifics that were required for a reference innuendo claim had been pleaded and there was no evidence before the Court as to what viewers of the video would or would not have understood.

Mr Hughes argued in the alternative, that even if I did permit the Claimant to rely on the material in his “Claimant’s case for Trial of Preliminary Issues” document, the “Chris Substack” reference in the chat accompanying the video was not nearly specific enough to establish that the words complained of referred to the Claimant. He observed that the uncertainty over what was in fact relied upon underscored the importance of the Claimant properly pleading his case.

Whilst recognising that it was not an exhaustive list, Mr Hughes drew attention to the list of examples at para 8-002 in Gatley as indicative of the kinds of circumstances where there was sufficient for the Courts to find that the hypothetical reasonable reader acquainted with the claimant would believe that he was the person referred to. He suggested that there was nothing equivalent in this instance. Mr Hughes pointed out that “Chris” is a very common name and that Substack is a widely used platform. The pool of potential people referred to was not sufficiently narrow.

As for their natural and ordinary meaning, Mr Hughes submitted that the second part of the words in question was simply a statement of intention, referring to a hypothetical situation. He argued that the first part of the text was comment; it would be understood to be a conclusion drawn by the speaker as to the possible consequences of posting online about children.