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

A key point in terms of verification is that, as Mr Lewis explained, the Guardian “only published articles or accounts in articles based on firsthand testimony with people who told us what they said Mr Clarke had done to them”. The Guardian has relied in the context of the truth defence on two eye-witness accounts of alleged conduct directed towards others, where there is not such firsthand testimony. But that is of no relevance in considering the public interest defence. The Court is concerned with the steps taken to verify that which was published. On numerous occasions the Guardian’s witnesses were accused of failing to verify matters which were never published (e.g. Mr Fairbanks’ account concerning Ms Urwin). This error has persisted in the Claimant’s closing submissions. Allegations relating to ‘Sophia’ and ‘Isla’ were never published by the Guardian. I also note that Mr Fairbanks, Mr Sherlock and Ms Coldwell were not sources for the first article.

In respect of the first article, the Claimant has raised issues regarding the steps taken to verify the accounts of Ms Kaiser, Ms Whyte, Ms Powell, Ms Seltveit, Ms Atherton, Ms Crabb, Ms Sabaliauskaite, ‘Maya’ and Ms Lusi.

The Claimant contends that Ms Kaiser’s account has not been corroborated. That is correct, to the extent that no source came forward who had witnessed the behaviour towards Ms Kaiser which she alleged. Ms Osborne tried to contact potential corroborating witnesses herself directly, to reduce the chance of the source speaking to them directly beforehand. But this was not always possible, as “sometimes our sources reached out to potential corroborative sources without us asking them to or they were already communicating with them”. An example is Ms Kaiser, who contacted some potential corroborating sources herself. They were not able to assist. But Ms Osborne then directly contacted CJS1, a source in whom Ms Kaiser had confided.

The Claimant’s closing submissions criticise the Guardian and “in particular Ms Kale” for not contacting Andrew Loveday, or members of the cast such as Terry Stone, Danny Dyer and Stephen Graham to assess the veracity of Ms Kaiser’s allegation. None of the Guardian’s witnesses were given an opportunity to address that criticism. None of those names were put to them. The Claimant focuses his disparagement on Ms Kale, despite the fact Ms Kaiser was not her source.

The Guardian had Ms Kaiser’s firsthand account, her tweet which showed that she had been concerned about Mr Clarke’s behaviour long before she had any contact with Mr Krishna Floyd or Ms Lusi, and confirmation from CJS1 that she had earlier told that source what had happened. In addition, they tested the credibility of her account by reference to the information that they received, more broadly, regarding Mr Clarke’s behaviour towards women on sets.

The Claimant contends that the Guardian failed to make reasonable enquiries regarding the alleged covert filming by not checking whether Ms Powell knew – through past conversations with Ms Whyte – of the short, dark hairstyle Ms Whyte had in the audition. Ms Osborne was clear, having interviewed Ms Powell on at least five occasions, and Ms Whyte at least three times, prior to publication of the first article, that Ms Powell had not known Ms Whyte had ever had that hairstyle until she saw the footage.

The Claimant suggests that the Guardian should have approached ‘Florence’ and ‘Mia’ to obtain information from them about their auditions by reference to which Ms Powell’s account could then have been tested – although Ms Powell never said she saw ‘Mia’s’ audition. That is a new contention that was not put to the witnesses. Consequently, there is no evidence as to whether they were approached or, if not, why not. In any event, there would have been no reason to believe they would have witnessed the filming, given that it was covert.

There was an inconsistency between Ms Powell’s reference to Marc Small and Jason Maza being present, and Ms Whyte’s account of who was present, which went unnoticed. However, I do not consider that they can be criticised for not approaching Mr Maza or speaking to Mr Small. Ms Osborne explained that given Mr Clarke and Mr Maza were business partners and good friends, it would have “really upset our sources” if they had contacted Mr Maza. She could not recall whether she had ever tried to speak to Mr Small, but she had “manage[d] to track down” the Casting Director who was in the audition, and her response was carefully considered.

The season in which the pub meeting occurred was included in the first article to give it “colour”. Aside from the fact that it was in 2017, after Ms Powell left Unstoppable, the date was unimportant. In any event, prior to publication, it was not apparent that there was any uncertainty about when the pub meeting took place. Ms Osborne was told it was Winter 2017 and had no reason to seek further verification of the date.

Ms Osborne went to great lengths to test and corroborate the information provided by Ms Powell, in relation to herself and others. In addition to speaking to Ms Powell at length, on numerous occasions, she (and Ms Kale) spoke to 12 individuals whose information assisted the Guardian in assessing Ms Powell’s credibility. Ms Whyte, Lara Doree/CJS2, Ms Seltveit, Laura Pugh/CJS16, Luca/CJS17 and Ms Powell’s mother each provided information that she had told them about Mr Clarke’s conduct towards her in Los Angeles. Monica Black, Helen Atherton, Philippa Crabb and CJS15 (among others) described her character and were witnesses to her behaviour, and Mr Clarke’s general behaviour towards her. Ms Whyte, Laura Pugh and Luca each recounted Ms Powell’s disclosure in the pub of the secret filming of Ms Whyte’s audition. And Ms Osborne spoke to Ms Powell’s therapist who, although someone she had been seeing only for a short time, and who had made no diagnosis of Post-Traumatic Stress Disorder, described Ms Powell as having PTSD-type symptoms, in terms of her fear of seeing Mr Clarke.

The Claimant asserts that Ms Powell’s behaviour following the trip to Los Angeles was not consistent with the “profile of a person so psychologically traumatised as to require therapy as a result of her alleged treatment by Mr Clarke”. There is no basis for asserting that a victim of the behaviour described would fit a stereotypical psychological “profile”, nor that Ms Powell’s behaviour was at odds with what might have been expected (see para ‎583 above).

Ms Osborne was criticised for not asking Ms Seltveit for the pictures that Mr Clarke sent on 23 July 2015 (para ‎626(iii) above). She explained, “It is Snapchat so those pictures disappear. I knew they would not be available.” Ms Osborne acknowledged that Ms Seltveit was “confused about the dates”, but she was “always very clear that she received a dick pic from, at least one dick pic from Mr Clarke. That never changed in her testimony”. Mr Lewis volunteered, “I do think it is fair to say that it may have been better for us here to say that she was unsure about the date the image was sent”.

Both Mr Lewis and Ms Osborne acknowledged that they did not investigate whether Ms Seltveit sent or received explicit photographs (other than from Mr Clarke). Their reporting was focused on Ms Seltveit’s allegation that she had received an unsolicited picture of a penis from Mr Clarke. However, when Ms Osborne asked Ms Seltveit whether she had ever sent photographs of herself to Mr Clarke, Ms Seltveit said openly that “I could definitely send a pic to a guy if he wants it”, but she had not sent any picture to Mr Clarke. Neither Mr Lewis nor Ms Osborne considered that any consensual sending or receiving of explicit photographs by Ms Seltveit would have any bearing on the allegation. The Claimant contends that if they had known Ms Seltveit sends or receives such pictures, that would have led to the conclusion that any sending by Mr Clarke was not unsolicited. However, Ms Seltveit was clear and unequivocal that it was unsolicited and her account was supported by contemporaneous messages.

Mr Lewis and Ms Osborne were both questioned regarding the decision not to go back to Ms Seltveit, following receipt of Simkins’ letter, to ask whether she had flirted with Mr Clarke on their trip to Glasgow. In Signal messages on the “Final” group chat between Mr Lewis, Ms Osborne and Ms Kale, on 29 April 2021 at 17:42, there is the following exchange:

“[Lucy Osborne] Should I go back Synne about his suggestion that she instigated discussions of sex?

[Lucy Osborne] She was open about initially flirting with him on our first call but said she did nothing to invite a dick pic

[Paul Lewis] NO!”

Mr Lewis explained in evidence:

“We were in the last stages of fact-checking and copy editing so I did not think it was necessary, given that Lucy had already had a conversation with the source about her flirting, in which she said, ‘I did flirt with him, but I did nothing to invite a dick pic’, for us, on the basis of Simkins saying she was flirting with Mr Clarke, to go back and have that same conversation with her, it would be duplicative.”

Ms Osborne agreed that there was no reason to go back to Ms Seltveit “because we had already stress-tested that allegation”. In fact, Ms Osborne’s understanding, as reflected in her Signal message, that Ms Seltveit said she initially flirted is slightly inaccurate (as she herself observed in her oral evidence). But the material point is that the journalists’ understanding was that Ms Seltveit had already said that she had initially flirted with Mr Clarke and that did not affect their view of her allegations given the clarity of her account that she did not invite his conduct in smacking her buttocks or sending her a photograph of a penis. They did not need to revert to her in those circumstances.

The Claimant’s closing submissions accuse Ms Kale of “outrageously stat[ing] dates were not important”, in relation to the photograph sent to Ms Seltveit. She said no such thing. Ms Seltveit was not even her source. The evidence that the Claimant’s counsel appears to be referring to was given by Ms Osborne in relation to the distinct issue of the date on which Ms Powell, Ms Whyte, Ms Pugh and Luca met in the pub. Ms Osborne made the modest and reasonable observation that that date “did not feel like a hugely important detail”.

The Claimant contends that the Guardian should have sought corroboration from “other producers on set” because it “would have been clear from the evidence presented to the Defendant that Ms. Atherton’s source of grievance stemmed from her own unprofessional attitudes as to the filming of explicit scenes”. There was no such suggestion in Simkins’ letter and nor was that put to the Guardian’s journalists.

The Claimant also submits that the Guardian should have contacted people who worked on other productions with Mr Clarke, such as Maggie Monteith and Josephine Rose, to corroborate the allegations regarding his methods of directing. Again, that was not put to the Guardian’s journalists.

The Guardian sought to verify Ms Atherton’s account by obtaining her contemporaneous messages, and speaking to other sources on the same production, including Monica Black and ‘Anita’/Megan*. Ms Osborne stated that these women were not friends or in touch yet recalled some of the same details. In addition, the Guardian considered the broader corroboration in the form of similar allegations regarding “sexualised comments or gestures about women’s bodies at work” that the reporters had received from ‘Maya’/Kim*, Monica Black and ‘Anita’/Megan.

When Simkins’ letter claimed that the scene in which “a woman straddled a male performer” was “as required by the script”, Ms Osborne checked the script and ascertained that it did not include any direction to that effect.

The Claimant contends that there is no evidence that Ms Crabb was asked about the occasion on which she was “two hours late”, following the account given in Simkins’ letter. That is wrong. The Supplementary PI Memo shows that Ms Crabb was asked about it in a phone call on 28 April. That memorandum records that, “Ms Crabb denied in the strongest terms that she was late to set for a personal reason, and stated that she was late because she was not sent to the set at the required time by the production team”. Ms Kale said that to be on the safe side, given the element of doubt, the allegation of Mr Clarke shouting at her in relation to the second episode of lateness was not published. The Claimant criticised the failure to mention other occasions when she was late, but no other episodes were referred to in Simkins’ letter.

Ms Kale was criticised for not listening to Ms Crabb’s podcasts. None of the podcasts are in evidence. Evidence cannot be adduced by providing a link in closing submissions, as the Claimant has sought to do. There is no evidence that Ms Crabb said anything of material relevance, still less that she had done so prior to publication of the first article, in any of her podcasts. In any event, it was not unreasonable for Ms Kale to pursue other avenues of investigation, rather than listening to all of a source’s podcasts on the off chance something of relevance might be said. There was no more reason for Ms Kale to have listened to Ms Crabb’s podcasts than there was for Ms Osborne to view Ms Whyte’s digital content, yet there has been no suggestion that step was required of Ms Osborne.

The Claimant alleges that Ms Sabaliauskaite’s account changed and accuses Ms Kale of an “inexplicable and unreasonable” failure to “follow up on this very obvious and material change of position”. Ms Sabaliauskaite was Ms Osborne’s source, not Ms Kale’s. Ms Osborne had already been informed of the allegation concerning Ms Sabaliauskaite by numerous witnesses (who did not recall her name) before she first spoke to her on 21 April 2021. Ms Osborne went back to Ms Powell, Lara Doree/CJS2 and CJS15, all of whom were present at the wrap party and in the office the following day, to obtain further information.

Ms Osborne spoke to Ms Sabaliauskaite again, twice, following receipt of Simkins’ letter. On both occasions Ms Sabaliauskaite made clear that she could see from the picture that it was taken while she had her leg up against a wall, in a splits position. In the final call, Ms Osborne said to her that “she” (who I find is likely to have been CJS15) “wasn’t sure if he was just threatening to get the photograph out”. In light of that, and Simkins’ letter, Ms Osborne asked “How sure are you that you saw it?” Ms Sabaliauskaite said that she was “100%” sure. There was no inconsistency in her account. There were no further steps the Guardian could have taken to verify her account and their assessment of her credibility is reasonable.

The Claimant describes the attempt to corroborate ‘Maya’s’ account as “limited”, and the omission to speak to Jon Finn or Judy Counihan prior to publication of the first article as “strange”.

Ms Kale spoke directly to ‘Maya’/Kim* on several occasions and assessed that she had no cause to seek publicity. Ms Kale spoke to a CJS who worked on the same production, and who gave direct evidence, from speaking to Mr Clarke, that he was adamant that ‘Maya’/Kim* should be nude in the scene, and angry she would not comply with his demands. The same source also remembered how anxious and uncomfortable ‘Maya’/Kim* felt, as a consequence of the pressure applied by Mr Clarke. Ms Kale spoke to another source, CJS8, who also worked on the same production, recalled Mr Clarke’s “bullying behaviour” towards ‘Maya’/Kim* because she would not laugh at his sexualised and lewd remarks. Ms Osborne spoke to a third professional who worked on the production who described Mr Clarke “making out like she [‘Maya’/Kim*] was being problematic for the sake of it”, and making derogatory comments about her on set, specifically relating to her concerns around the sex scene.

In addition, Ms Kale spoke to a friend of ‘Maya’/Kim* in whom the latter had confided in 2018. The friend told Ms Kale that ‘Maya’/Kim* had told her in 2018 that she had been sexually harassed by Mr Clarke, pressured to be naked in a sex scene against her wishes, and that she was “very concerned” for her career because she had not “gone along with it”. The fifth corroborative source was a work associate of ‘Maya’/Kim*, who said that during a business meeting shortly after she finished the project, ‘Maya’/Kim* told him that Mr Clarke was “totally inappropriate” on set and it left her very upset.

It was put to Ms Kale that she failed to reach out to Mr Finn who, it was said, would have confirmed that Mr Clarke wanted to keep ‘Maya’/Kim* on the production. Ms Kale said she “tried to reach out to as many people as possible at the time”, but she did not remember reaching out to Mr Finn. However, this was not an omission to speak to a source who would have undermined the account given by ‘Maya’/Kim*. On the contrary, it is clear from the evidence he has given that, if he had been approached, Mr Finn would have strongly corroborated her account. Whether he would have said Mr Clarke had wanted to keep ‘Maya’/Kim* is speculation, as that was not a matter about which he was questioned when he gave evidence. But even assuming the Guardian might have gathered information that showed her belief that Mr Clarke had a role in ensuring she ceased to work on the production was mistaken, that would not have undermined her credibility. That belief (which was not published) was based on inference whereas her account of how Mr Clarke behaved towards her was direct evidence.

Ms Kale was not asked whether she tried to contact Ms Counihan. It is apparent that she, too, would have been a corroborative source if Ms Kale had succeeded in speaking to her.

Simkins’ letter stated that Mr Clarke “was due to do a sex scene with an actress. She [‘Maya’/Kim*] requested a change to the scene. Our client called her to discuss her proposed change and she agreed to do the scene as originally written. After the call she wanted to do the scene as she asked to do it and they did it they way she wanted to”. Ms Kale checked the veracity of Mr Clarke’s response by obtaining a copy of the script from ‘Maya’/Kim* on 28 April 2021. As noted in the Supplementary PI Memo, the script “states that her character was meant to strip down to her ‘bra’ and further nudity was not written into the script, meaning that she was not asking for a change to the script, merely to perform the scene as directed (wearing underwear)”.

Ms Kale was criticised for not speaking to the two other members of the cast who attended the dinner on 10 November 2018 with Ms Lusi and Mr Clarke (para ‎819 above). Ms Kale explained that the Guardian corroborated “what we intended to publish”. The Guardian did not publish Ms Lusi’s account of that dinner because “it did not meet the threshold for publication”; it did not seem to Ms Kale “to be serious enough to consider publishing”.

Ms Kale was also criticised for not seeking the entirety of Ms Lusi’s messages with Mr Clarke, with the consequence that the Guardian did not see, prior to publication, the messages from Ms Lusi to which I have referred in paras ‎826-‎827 above. Ms Kale said that “it can be intrusive to ask for the entirety of someone’s message chain”, so she asked for “the information that I felt was relevant at the time”. Ms Kale did not think that messages prior to the dinner on 27 November 2018 would be “particularly relevant or important to see”. That was a reasonable judgement and I note that there is nothing in Simkins’ letter to indicate that messages prior to the dinner might be relevant.

Mr Lewis did not agree that they should have looked into Ms Lusi’s comments about the BAFTA award: “I do not think somebody saying that they do not believe the award is warranted is something that, as Mr Williams put it, sort of warrants investigation.”

The Supplementary PI Memo, confirmed by Ms Kale’s evidence, shows that the Guardian went back to Ms Lusi, and tested her account in light of Mr Clarke’s allegations that she flirted with him at the dinner and told him that “(1) she liked to sleep around (Footnote: ¹⁹); (2) she liked sleeping with married men; and (3) she liked a man to take charge”. Ms Lusi had said in her initial conversation with Ms Kale that Mr Clarke had told her during the dinner that she had said three things that made him think “game on”. She could only recall one of the comments he had referred to, which was not one he mentioned in Simkins’ letter. Ms Lusi told Ms Kale that the first comment was not true, and implicitly that she would not have said it. In relation to the second and third comments, Ms Lusi told Ms Kale “she may possibly have said she likes men who are strong and take charge, but not to elicit sex, and not flirtatiously”, and the “conversation around sleeping with married men in the past was in the context of past mistakes she had made”. She did not know at the time that Mr Clarke was married. Ms Lusi denied that she had flirted with Mr Clarke during the dinner, saying she would not have done as she already felt uncomfortable around him. The Guardian reached a reasonable assessment of the credibility of her account, having regard not only to her answers to these specific points, but also the contemporaneous messages showing how she felt about what had occurred within days of the dinner, and her actions in not sending him a script she was working on, despite his repeated requests, and in raising his behaviour with various representatives (para ‎838 above).

The Claimant submits that the Guardian failed properly to assess Ms Lusi’s credibility in light of a response from solicitors on behalf of Ms Hargreaves to an invitation to comment. There is nothing in this. Ms Lusi’s account that on 14 January 2019 she bumped into Mr Clarke’s then publicist at a screening at BAFTA and told her that Mr Clarke sexually harassed and threatened her, is not undermined by a response that Ms Hargreaves “does not recollect” Ms Lusi making such allegations about Mr Clarke and “she would have expected to recall them (albeit significant time has elapsed)”. This was fairly reflected in the first article.

No issues have been raised in the Claimant’s closing submissions regarding the verification of the accounts of the other primary sources whose allegations were published in the first article, namely, ‘Anita’/Megan*, Leila*, Chantal*, Mel*, and Becky*. Nor was the evidence given by Ms Osborne and Ms Kale regarding the steps they took to verify and corroborate their allegations challenged. The only question (Footnote: ²⁰) put to any of the Guardian’s witnesses regarding these sources was in the following exchange between Mr Williams and Mr Lewis:

“Q. ‘In 2004, Mel* acted in Clarke’s debut feature film Kidulthood. She was a teenager when she auditioned’, First Article; yes?

A. This is the First Article, yes.

Q. And that lady has not come forward to support that allegation, has she?

A. Well ----

Q. Mel?

A.

Yes, she did, she came forward to us certainly. We interviewed her, and based on the reporting we believed this was, after contacting Mr Clarke and considering what he had to say about the allegation, we believed we were warranted in publishing this.”

I am satisfied that the steps taken to verify their accounts were sufficient.

Ms Kale gave evidence that on the day of publication of the first article, after Mr Lewis told her and Ms Osborne that they were going to publish, the three of them on a video call had done final line-by-line fact-checking, going through each quote and fact to check them. She was accused of “making this up as you go along”. It is hard to see how this allegation of dishonesty could have been put. There is no contrary evidence. Nor is there anything implausible in her evidence that right up until publication they were fact-checking by, for example, checking quotes against transcripts, confirming that where they gave individual’s ages those were accurate and checking the dates of productions.

I have addressed the granular criticisms of the verification process. There is little in them. The only point of significance is that Ms Powell’s erroneous statement that Mr Small and Mr Maza were present during the final Legacy audition was overlooked, and so that aspect of her account was less well tested than it should have been. But in all other respects, the Guardian went to great lengths to test her account, and the assessment that she was a credible source was more than reasonable. More broadly, the steps taken by the Guardian to verify and corroborate the matters published in the first article were reasonable in the circumstances.