In Banks v Cadwalladr  EWCA Civ 219, the Court of Appeal recently found in favour of Leave.EU founder Arron Banks on one ground of appeal in his libel action against journalist Carole Cadwalladr.
This case provides useful insight into how serious harm in libel cases is considered, especially when looking at harm caused in the years following publication.
The Claimant, Mr Banks, sued the Defendant, Ms Cadwalladr, for libel when she released a Ted Talk and a tweet, both of which the court held to mean that “On more than one occasion Mr Banks told untruths about a secret relationship he had with the Russian government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding”
The TED Talk and the tweet were published online to a substantial audience.
By the time of trial, official investigations had found no evidence that there had been any such breach of the law and as such, a defence of truth was abandoned by the Defendant. The defendant had apologised but she continued to rely on the defence of public interest under s.4 Defamation Act 2013 (the “Act”).
The trial judge, Steyn J, dismissed both claims. It was held that although the publication of the TED Talk had caused serious harm to the Claimant’s reputation, it was protected by the defence of public interest. Later publication of the TED Talk was not protected by public interest but did not cause serious harm and as such, was not actionable. The tweet would also have been protected by the public interest defence, however it was found to have not caused serious harm in any event.
The Claimant appealed the decision.
The appeal focussed on issues of interpretation and application of s.1 of the Act, i.e. the serious harm requirement.
The Grounds of Appeal were:
The first ground of appeal focussed on serious harm caused by continuing publication. C argued that s.1 of the Act allows a claimant to rely on all publications of the defamatory words complained of, to meet the statutory requirement of “serious harm” to reputation, even if the publisher had a defence to the initial publications. The Judge held that it did not. In such a situation, it is necessary for the claimant to prove that the later publication has caused serious harm or is likely to do so, ignoring earlier lawful publications.
Consequently, the Judge dismissed the second ground of appeal too, finding the Tweet had not caused, and was not likely to cause, serious harm outside the period protected by the public interest defence.
However, the Court did uphold the third ground of appeal. The trial judge differentiated between the first and second “Phases” of publication. The judge estimated that the TED Talk online was viewed in the jurisdiction at least 100,000 times after the first year of publication (“Phase 2”). The appeal judge commented that this was broadly equivalent to the circulation of a broadsheet national daily newspaper and found that given the claimant’s prominent role in public life and business, a conclusion that there was serious harm to his reputation must follow.
The defence of public interest had fallen away after the first year of publication due to a change of circumstances. Namely, that the Electoral Commission had issued a statement confirming it accepted the NCA’s findings that there was no evidence of breaches of criminal or company law by the Claimant. This meant that the defence covered the harm caused during Phase 1 of publication but not Phase 2.
Serious harm and timing
This case provides useful insight into how judges will consider serious harm in libel cases and how serious harm will be treated if the public interest defence falls away.
The damages awarded for serious harm were only applied to Phase 2 of publication, i.e. after it was deemed there to be no longer a defence of public interest, not from the outset of publication. Interestingly, instead of considering the harm suffered as a whole, the judge differentiated between the harm suffered during Phase 1 of publication, when the defence applied, and the harm suffered during Phase 2, after the defence had fallen away.
Inference of serious harm
Of interest to claimant defamation lawyers is that the Court’s finding of serious harm was based (at least in part) on inference from the inherent gravity of the allegations and the scale of the publication during the period after the defence of public interest had fallen away. Whilst there was little direct evidence of harm, the judge held this was ‘unsurprising’ given the well-known difficulties of obtaining such evidence.
Irrelevance of pre-existing reputation
The judgment also touched on the irrelevance of the reader’s existing opinion on the claimant. It was held that if the damaging statements were published to people who were politically opposed to the claimant or disliked him/have a low opinion of him already for some other reason, that is not a proper basis on which to dismiss the inference of serious harm.