QB-2022-001397 - [2025] EWHC 2193 (KB)

The Guardian called six witnesses to give evidence in support of its public interest defence, all of whom gave evidence in person over the course of five days (days 19-23). Paul Lewis gave evidence for about 8½ hours over the course of days 19 and 20. Lucy Osborne, one of the two main reporters, gave evidence for over 8 hours across three days (days 20, 21 and 22). Sirin Kale, the other main reporter, gave evidence for about 4½ hours over the course of days 22 and 23. Nicole Jackson, the Executive Producer of the Podcast, Owen Gibson, the Deputy Editor of the Guardian, and Katharine Viner, the Editor-in-Chief, each gave evidence on the morning of day 23.

I address their evidence in the context of my consideration of the public interest defence.

Audio Recordings and Documentary Evidence

In addition to the witness evidence, I have listened to, and in some cases watched, 50 media files, the majority of which are audio recordings made by the journalists of conversations with identified sources. The parties have also adduced a substantial quantity of documentary evidence going to both the truth and public interest defences, which I have read.

Serious Harm

At common law, a meaning or imputation is defamatory only if it would tend to have a substantially adverse effect on the way that right-thinking members of society generally would treat the Claimant. This formulation encapsulates the common law threshold of seriousness and the consensus requirement. These are objective tests that turn on the inherent tendency of the words. It is not disputed that the common law test is met.

However, the common law rules have been modified by statute. Section 1(1) of the 2013 Act provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.

There is no presumption of serious harm. A claimant must demonstrate as a fact that the publication of the statement he complains of has caused or is likely to cause harm to his reputation that is ‘serious’: Lachaux v Independent Print Ltd [2020] AC 612, Lord Sumption, [12]-[16], [21]; Turley v Unite the Union [2019] EWHC 3547 (QB), Nicklin J, [107(iv)]. A claimant who has the burden of proving that a statement caused, or is likely to cause, serious harm to his reputation may do so by evidence directly going to prove such harm, or by inference from other facts.

Sometimes inference may be enough, but it cannot always be so. The evidence may or may not justify an inference of serious harm. Inferences of fact as to the seriousness of harm done to a claimant’s reputation may be drawn from the evidence as a whole, including the meaning of the words, the scale and circumstances of publication, the claimant’s situation and the inherent probabilities: Lachaux, Lord Sumption, [21]; Turley, Nicklin J, [107(vi)-(vii)] and [108] (citing Warby J’s judgment in Lachaux, which Lord Sumption considered to be “coherent and correct, for substantially the reasons he gave”: Lachaux, Lord Sumption, [20]).

The Guardian admits that the first article has caused or is likely to cause serious harm to Mr Clarke’s reputation. However, the Guardian submits that there is no properly pleaded case on serious harm in respect of any of the other articles. The amended Particulars of Claim identify a series of separate publications, each of them containing a separate statement with its own meaning, but then amalgamate the Articles to plead that they have caused him serious harm. The Claimant has impermissibly rolled up the alleged effects of all the articles complained of. The Claimant’s Reply provided no response to the contention, in the Amended Defence, that the case on serious harm in respect of the Articles (save the first) is not properly pleaded.

The Claimant relies on paragraph 49 of Banks v Cadwalladr [2023] EWCA Civ 219, [2023] KB 524 for the proposition that there is no requirement to prove that each individual publication caused serious harm.

In Banks v Cadwalladr, the Court of Appeal was concerned with phases of publication of a TED talk, in circumstances where at the point of initial publication the defendant had a public interest defence, but that defence later fell away. Warby LJ addressed the appellant’s contention that serious harm only had to be established once. Having found that the serious harm threshold was passed in respect of the initial publication, the appellant submitted that the court should not have assessed whether serious harm was caused from the point at which the public interest defence fell away. Warby LJ rejected that contention: [40].

In the paragraph relied on by the Claimant, Warby LJ observed:

“49.

I do not agree that this analysis requires proof that each individual publication caused serious reputational harm. There will doubtless be cases in which an individualised approach is both possible and necessary. That might be so, for instance, in a case of publication to a small number of identified individuals only one of whom turns out to have believed the allegation complained of. But the statutory words ‘its publication’ are flexible enough to embrace other kinds of case, including the typical case of media or online publication involving a mass of individual publications to numerous unknown individuals. There is no principled objection to the application in such a case of a modified version of the traditional pragmatic approach of the common law, which is to consider the relevant publications collectively when assessing reputational harm. The modification is that in a case of this kind the size and shape of the relevant group of publications will not be known for certain until after the public interest defence has been assessed.”

The Claimant’s submissions fail to appreciate that the terms “statement” and “publication” in s.1(1) have distinct meanings. In s.1(1) “publication” bears its common law meaning: Banks v Cadwalladr, [43]-[44]. Each communication of the statement to someone other than the claimant is a “publication”, and a separate tort. Thus, for example, each occasion on which the first article was read by someone other than the Claimant constituted a publication. “Statement” is a defined term for the purposes of the 2013 Act. It means “words, pictures, visual images, gestures or any other method of signifying meaning”. Each of the Articles is a separate “statement”.

The proposition that, at least in a mass publication case of this nature, there is no requirement to prove that each individual “publication” caused serious harm does not assist the Claimant’s case in respect of the second to eighth articles. The effect of that proposition is that, in support of his claim that the serious harm threshold was met in respect of the first article, the Claimant was entitled to rely on the combined effect on his reputation of the publication of the first article to each person who read it. The extent of publication of an article is often a relevant factor in assessing serious harm.

However, the law is clear that the court should assess whether the serious harm test is met in respect of each statement – here, each article - individually, not cumulatively: Banks v Cadwalladr [2022] EWHC 1417 (QB), [2022] 1 WLR 5236, [51(iii)]; Sube v News Group Newspapers Ltd [2018] EWHC 1961 (QB), [2018] 1 WLR 5767, [22]. In Sube, Warby J held at [22]:

“Secondly, it could not be right for the Court to consider the cumulative impact on reputation of all the imputations in all the articles complained of. That is contrary to established principle, and at odds with the wording of the 2013 Act. In some unusual circumstances, articles published at different times may be so interlinked that they can be considered in conjunction for some purposes, such as meaning, or reference (see, for instance, Hayward v Thompson [1982] 1 QB 47). But in general, for the purposes of assessing defamatory impact, a published article must be considered individually; it will not normally be appropriate or even possible to treat a number of articles as a single ‘statement’ for the purpose of s.1, any more than it was at common law.”

In Amersi v Leslie [2023] EWCA Civ 1468, refusing permission to appeal, Warby LJ said that the judge was “plainly right” to reject the claimant’s argument that he was entitled to rely on “the cumulative reputational harm caused by the publication of the same or substantially the same allegation across the memos” ([54], [19]). He observed at [54]:

“Section 1(1) is concerned with the defamatory impact of the publication of a ‘statement’. It would be revolutionary and in my opinion would stretch the statutory language beyond breaking point if the court were to assess whether one statement meets the statutory threshold for what is defamatory by considering collectively the impact on the claimant’s reputation of (a) the publication of that statement and (b) the publication of other different statements conveying an allegation to the same effect. It would be a step further to take account of the publication of two or more different statements conveying imputations that are also different but to similar effect.”

(In this context, “meaning”, “imputation” and “allegation” can be treated as synonymous, but distinct from a “statement” in which a meaning is conveyed: Amersi, [53].)

The Claimant has not properly pleaded the facts and matters on which he relies to satisfy s.1(1) of the 2013 Act in respect of any of the second to eighth articles. Nor did he adduce evidence of the harm attributable to each of those articles. His approach in evidence, as in his pleading, was to rely on the harm caused, collectively, by the Articles. It follows that the Claimant has not satisfied the s.1(1) requirement in respect of the second to eighth articles.

Truth Defence: the Law

Section 2 of the 2013 Act provides that:

“(1)

It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

(2)

Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

(3)

If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.”

To rely on s.2 as a defence to the claim, the Guardian has to show that the meaning of each of the Articles is substantially true. In view of my conclusion on serious harm, and given that the meanings of the other articles do not go beyond the meaning of the first article (para ‎8 above, save for a discrete allegation in the fourth article) I will focus on the first article.

The phrase “substantially true” retains its common law meaning. The defendant has to establish the essential or substantial truth of the sting of the libel. The court should not be too literal in its approach. See Vardy v Rooney [2022] EWHC 2017 (QB), [2023] EMLR 1, [29]-[31] (and the cases cited therein).

The degree of certainty with which an imputation is conveyed can vary. In Chase v News Group Newspapers Ltd [2002] EWCA Civ 1722, [2013] EMLR 11, the Court of Appeal described three distinct levels of defamatory meaning, the first of which is that the claimant is guilty of some impugned behaviour and the second that there are reasonable grounds to suspect that the claimant is guilty of the impugned behaviour. Here, the overall impression conveyed by the first article was that there were “strong grounds to believe” that the Claimant was guilty of the misconduct alleged which is a high Chase level two meaning, stopping short of alleging guilt. Where the defamatory imputation is pitched at this level, it is necessary for the defendant to prove the primary facts and matters – which may include strong circumstantial evidence – giving rise, objectively, to strong grounds to believe the claimant was guilty of the misconduct alleged: see Gatley, 12-013; Duncan and Neill on Defamation (5^th ed., 2020), 12.18-12.20.

If the imputation is general – alleging a pattern of discreditable behaviour rather than a specific incident – the defence of truth may rely on matters not mentioned in the statement complained of: Gatley, 12-010. That is the position here. Even the reference to “secretly filming a young actor’s naked audition” does not refer to any particular individual or time or place. (Footnote: ⁴) Accordingly, it is open to the Guardian to rely on evidence regarding incidents to which it made no reference in the first article (and of which it may not have then been aware) in seeking to establish the substantial truth of the meaning conveyed by the first article. However, as the Guardian acknowledges, an imputation that there were strong grounds to believe the claimant was guilty of misconduct must be judged at the time of publication, and so evidence of events occurring after publication is inadmissible.

A question may arise as to whether, and if so, how far, proof of only one specific instance of misconduct will be sufficient to establish the substantial truth of a more general allegation: Gatley, 12-004, p.393. Thus, for example, in Wakley v Cooke (1849) 4 Ex. 511, proof that the plaintiff had on one occasion been found to have published a libellous article was insufficient to prove the general allegation that he was a “libellous journalist”. In this case, the imputation concerns various kinds of behaviour, pithily summarised at the outset of the meaning of the first article as giving rise to “strong grounds to believe that the claimant is a serial abuser of women”. I agree with the Claimant that proof of a single instance of misconduct would be wholly insufficient to prove this general charge of a pattern of misbehaviour. The Guardian did not suggest otherwise.

When considering whether the truth defence has been established, it is important to stand back and consider the whole picture. But in doing so the court must avoid, in the face of multiple allegations, succumbing to the crude proposition that there is “no smoke without fire” (i.e. that the number of allegations itself demonstrates that there must be some kernel of truth in them). A defamatory imputation is presumed to be false. The burden is on the defendant to adduce convincing evidence to overcome that presumption.

Truth Defence: the Primary Facts