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

On 26 April 2021, shortly before midday, the Guardian sent Mr Clarke, by email, a 12-page invitation to reply, outlining the matters they were considering publishing. Ms Osborne phoned Mr Clarke to alert him that he had been sent an urgent email. He asked her to contact his agent, so she forwarded the right to reply to Gary O’Sullivan. The Guardian sought a reply by 12pm on 27 April 2021, giving Mr Clarke about 24 hours to respond. On 27 April 2021, at 8.59am, Simkins wrote to the Guardian, on behalf of Mr Clarke, requesting an extension of a further 48 hours. The Guardian did not agree to that period, but gave an extension to 5pm on 27 April 2021. Simkins responded within that timeframe, providing the detailed 29-page response to which I have referred.

On 29 April, at 8.46am, the Guardian sent Simkins a 7-page response with an invitation to answer three further questions by 12pm. Simkins requested an extension to 4pm which the Guardian agreed, and Simkins sent a further 5-page reply that day. At 4.50pm, the Guardian informed Simkins of their intention to publish and gave them an opportunity to provide a comment attributable to Mr Clarke by 5.30pm. Simkins provided a statement for publication which was incorporated high up in the first article.

The Claimant submits that:

“The industry standard for a period to exercise one’s right to reply is seven to ten days. It was thus outrageously unreasonable and oppressive for the Defendant to demand a reply within less than 24 hours then another 24 hours.”

The Guardian published in an “unseemly rush”, he submits, due to “commercial and competitive pressure”, in circumstances where the Guardian wished to beat rival newspapers to the story.

The proposition that there is such an “industry standard” was not put to any witness and there is no evidence to support it. The specialist media law firm, Simkins, were well aware they could seek extensions (and prudently did so), but they made no suggestion that the deadline imposed by the Guardian breached any industry standard, nor that a period of seven to ten days was required. Nor has the Claimant sought to derive this “industry standard” from the authorities. In Jameel v Wall Street Journal [2006] UKHL 44, [2006] 3 WLR 642, the newspaper successfully relied on Reynolds privilege in circumstances where the claimants, through their representative, were given a right to reply on the evening before the article was to be published in the following morning’s print edition: [35]. The representative’s request for 24 hours to respond, as one of the claimants was in Japan where it was then 3am, was refused: [9].

The reasonableness of the time given to reply is a fact-sensitive issue. Mr Gibson explained that the “timing and prominence of publication of larger stories is overseen by a combination of me, Katharine Viner and Nick Hopkins, the Executive Editor for News.” Despite this unchallenged evidence, the Claimant focused his attack in relation to timing on Mr Lewis, Ms Osborne and Ms Kale. Those attacks went nowhere: I accept their evidence. But it is important to focus on the evidence of the decision-makers.

In relation to timing, Ms Viner was aware Mr Clarke had been contacting individuals, including sources. Ms Viner said,

“I knew that Mr Clarke was already aware of the Guardian’s ongoing investigation prior to receiving our invitation to comment. I considered it was appropriate in these circumstances that Mr Clarke was given a reasonable but not lengthy period of time in which to comment, as there was a foreseeable risk he might use the information in our communications to further harass or deter those sources. I did not consider Mr Clarke was prejudiced by the time we allowed for comment, since my team had determined that he was aware in advance and had already been contacting sources. The matters in question were also matters wholly within Mr Clarke’s personal knowledge, and I considered that he would be capable of responding to the invitation to comment promptly.”

Similarly, Mr Gibson said that the “calls that Mr Clarke and Mr Maza had been making to sources did feature in our consideration of timing”. Mr Gibson was not challenged on his evidence that he considered that to be a legitimate factor when considering the timing, given that certain sources had been distressed by these calls, and “there was good reason to believe that Mr Clarke, with the benefit of time and identification of sources in the invitations to comment, could cause further intimidation or distress to sources or other women, as well as potentially deterring sources from speaking to us or going on the record”.

Mr Lewis had made Mr Gibson aware that reporters at The Mirror were also looking into Mr Clarke but “this was not a factor in the timing of publication”. Mr Gibson’s unchallenged evidence was that while the activities of other newspapers could be a “cause for urgency for some kinds of stories”, that was not the case here given the level of seriousness, complexity and the potential repercussions for the protagonists.

Mr Gibson explained:

“Editorially we have no commercial or proprietorial pressure to publish any story; our consideration of whether to do so is based on the merits of the story. We are working on numerous investigations and big stories all the time, and we do not feel any commercial pressure to publish purely to validate our investment in an investigation.”

Even at the stage of sending invitations to comment, he said, the story is not “moving inexorably toward publication”. Mr Gibson said that he has “stopped stories at this late stage several times, including with one #MeToo story”, and that it is part of his role to make those decisions, however disappointing it may be for the reporters whose work is not published.

In my judgment, the time given to Mr Clarke to reply (more than 29 hours prior to Simkins’ letter, and ultimately a period of more than three weekdays) was not unreasonable in the circumstances. While there were many allegations for Mr Clarke to address, they all concerned matters that were within his direct knowledge and the Guardian knew that for Mr Clarke the right to reply email would not come out of the blue. For several weeks, he had been aware, broadly, of the nature of allegations received by BAFTA. He had known that the Guardian was investigating for at least a fortnight. The Guardian understood, from Mr Maza’s disclosure to a source, that Mr Clarke had hired private investigators, and knew that Mr Clarke had sufficient awareness of the nature of the allegations to have enabled him and Mr Maza to contact ten of the Guardian’s sources.

Given the steps he had already taken, including, for example, repeatedly urging Ms Whyte (and through her, Ms Powell) not to speak to a Guardian reporter, and the distress those approaches had caused some of their sources, the Guardian had a reasonable concern that Mr Clarke might use the additional information supplied in the right to reply email to put pressure on their sources to retract their accounts, or their consent to be named. A shorter period of time reduced that risk.

Mr Clarke was, in fact, able to provide two detailed responses in the time he was given, as well as a statement for publication. He was not prejudiced by the short timeframe for response, and it in no way undermines the reasonableness of the editors’ view that publication was in the public interest.

The Claimant also contended, more broadly, that the investigation was rushed. Ms Kale was asked in cross-examination whether she considered she had conducted a thorough investigation. She responded:

“Absolutely. I am really proud of the work that we did. We had 22 women in the First Article. I think by the time of the publication of the Eighth Article I personally spoke to 70 sources. I am really proud of the work we did, and I think it was a thorough investigation.”

There was no basis for the accusation that Ms Kale was lying in expressing her feelings and opinion about the article. In a casual, private message to a friend close to the time of publication, in response to a suggestion that the article “must be watertight” as the Guardian had chosen to publish it, Ms Kale said, “Nope they decided to publish anyway”. Ms Kale’s comment was not a reflection on the strength of the investigation. She was referring to the litigation risk. The nature of it, for the most part depending on individuals being willing to back up the Guardian with their testimony, if Mr Clarke sued, was such that, at that point, she did not regard the Guardian’s position as unassailable.

The Claimant’s contention that Ms Osborne “confirmed to Davie Fairbanks … that the allegations were not looked into properly due to lack of time” is untrue. In a conversation long after the first article was published, Ms Osborne said the investigation was “three and a half weeks” and there were “lots of things we didn’t look into at the time”. As Ms Osborne explained, following publication of the first article, the Guardian received many leads which they had not investigated. She was not saying, and does not believe, that their investigation into the allegations that were published fell short. The investigation moved quickly because many sources were willing to talk to them and they worked long hours and weekends throughout the investigation.