Ruling on serious harm overturned in Laurence Fox Twitter spat and retrial ordered

Yet the Court of Appeal upheld the High Court’s findings that Mr Fox’s tweets caused serious reputational damage to Mr Blake and Mr Seymour. The court rejected Mr Fox’s submissions that the High Court had erred in law in that respect, or had reached a conclusion that was plainly wrong or the product of serious irregularities. But the Court of Appeal cut the quantum of damages from £90,000 for each claimant to £45,000, finding the High Court’s assessment to be considerably in excess of the appropriate award.

Background

On 4 October 2020, Mr Blake, Mr Seymour and Ms Thorp each described Mr Fox as a “racist” on Twitter. Mr Fox responded with tweets labelling each of them a “paedophile”. The three claimants brought a libel claim against Mr Fox, and Mr Fox counterclaimed in libel against each claimant.  

Claims

The single natural and ordinary meaning of the word “paedophile” was found in both the High Court^[2] and the Court of Appeal^[3] to be “someone who had a sexual interest in children and who had or was likely to have engaged in sexual acts with or involving children, such acts amounting to serious criminal offences”.^[4] Accordingly, Mr Fox’s statements in his tweets to Mr Blake and Mr Seymour were allegations or imputations of fact, which were defamatory at common law. In contrast, Mr Fox’s response to Ms Thorp was not defamatory at common law, as the term “paedophile” was clearly being used rhetorically in that instance.

At trial, the High Court found that it was more likely than not that Mr Fox’s “paedophile” tweets had caused (or were at least likely to cause) serious harm to the claimants' reputations.^[5] Mr Fox pleaded a defence of a fair “reply to attack” under common-law qualified privilege, but that was unsuccessful, as the “paedophile” allegations had no connection with the “racist” allegations and his tweets were “escalatory and disproportionate”.

Defendant’s counterclaim

The single, natural and ordinary meaning of the word “racist” was simply that the defendant was a “racist”.^[6] That was found to be an expression of opinion and defamatory at common law. Each claimant denied that their tweets had caused serious harm. In the alternative, Mr Blake and Mr Seymour relied on the defence of honest opinion, having quote-tweeted a tweet by Mr Fox in their response. Ms Thorp, in the alternative, relied on the defence that her allegation was true, as she had not quote-tweeted any tweet by Mr Fox or otherwise indicated the basis of her opinion.

At trial, the High Court found that Mr Fox could not prove that the tweets in question had caused him serious reputational harm, and so his counterclaim was dismissed. The High Court refused to rule on the defences, considering it unnecessary to wade into the territory of whether there was substantial truth in labelling Mr Fox as a racist.

Damages awarded

With liability determined, a remedies hearing took place on 22 March 2024. The High Court awarded Mr Blake and Mr Seymour £90,000 in damages, citing the “deep reputational stain” and “acute personal distress” caused by Mr Fox’s allegations.^[7]

Appeal – Mr Fox’s claims

Mr Fox raised two main grounds of appeal on the serious reputational harm caused by the claimants’ tweets:

1. Collins Rice J erred in her approach to the issue of serious harm for the following reasons: (a) it was wrong to treat the tweets as less likely to cause serious reputational harm because they were statements of opinion; (b) there had been a failure to apply the law on proving bad reputation; and (c) the rule in Dingle^[8] had not been applied.
2. With particular regard to two specific heads of consequential harm relied on, it was not open to the judge to conclude that the tweets were not causative of serious reputational harm.

Ground 1 – errors in law

The Court of Appeal rejected ground 1(a), but upheld grounds 1(b) and 1(c).

On ground 1(a), Lord Justice Warby (giving the leading judgment) stated that “it is not open to sensible dispute” that an “expression of opinion may, depending on the context, have a less harmful impact on a person’s reputation than a simple statement of fact to the same effect” [70]. He noted that “some criticisms” could be made of the High Court’s reasoning. For instance, some consideration might have been given to the fact that Ms Thorp did not indicate the basis of her opinion, unlike Mr Blake and Mr Seymour. Yet Warby LJ concluded that the High Court was entitled to make the assessment that, in this context, the fact that the statements were expressions of opinion made it less likely that they would cause reputational harm.

Warby LJ dealt with grounds 1(b) and 1(c) together. The relevant elements of Mr Fox’s case on serious harm were the impact of the claimants' tweets on his career, and on his reputation more generally. Warby LJ noted that the High Court incorrectly addressed those two strands compendiously when, in fact, they were distinct strands of Mr Fox’s case, requiring separate and individual analysis.

In determining the impact of the claimants' allegations on Mr Fox’s reputation more generally, Warby LJ noted that the case of Dingle v Associated Newspapers was highly relevant. The rule in Dingle stipulates that a defendant cannot adduce evidence of other publications making the same allegation as the statement as proof of a pre-existing bad reputation. Instead, such evidence should come from “those who know him and have had dealings with him”.^[9] In Lachaux v Independent Print Ltd,^[10] the Supreme Court also confirmed that the rule in Dingle can be applied in the context of assessing serious reputational harm. In other words, a defendant cannot rely on the impact of third-party publications in the context of assessing the serious harm caused by the offending publication.

Warby LJ concluded that the High Court had not correctly applied the rule in Dingle. Instead, the High Court had “inferred from third-party publications and specific incidents that Mr Fox had acquired a bad reputation for being a racist” [68], which was expressly contrary to the rule in Dingle. Collins Rice J was also incorrect to identify a range of factors that might have caused or contributed to the reputational harm suffered by Mr Fox, with such factors including third-party publications (specifically, 15 tweets) making similar allegations to those of the claimants, and to conclude that Mr Fox had not disproved that these other factors had caused him harm.  

Instead, Warby LJ emphasised that the High Court should have considered whether the claimants' tweets had probably caused some reputational harm that was serious. To that end, it should have also considered “the state of Mr Fox’s post-publication reputation generally” [79]. After all, the relevant test with reputational harm is one of threshold liability (i.e. whether or not the defamatory publication had caused, or was likely to cause, serious harm), whereas the extent of the harm should go to damages.

Warby LJ also considered the issue of “isolation”, i.e. that a claimant should not be compensated for reputational harm caused by others. While, in the context of “isolation”, it may be relevant to consider other third-party publications, the concept should only be applied where third-party publications are relied on “to rebut a claim that specific consequences have flowed from the publication” [80]. The notion of “isolation” cannot be interpreted as allowing a defendant to rely on third-party publications as evidence of a claimant’s existing bad reputation. Such an interpretation would be wholly inconsistent with the rule in Dingle.

So, the Court of Appeal considered that there had been flaws in the High Court’s reasoning and upheld Mr Fox’s appeal under grounds 1(b) and 1(c).

Ground 2 – serious harm was plainly satisfied

The Court of Appeal also upheld Mr Fox’s second ground of appeal.

Mr Fox was presumed to have a good reputation before publication, and there was no basis for finding that he did not. Warby LJ agreed that each tweet was a “mass publication”, from which some individuals will have thought less of Mr Fox in consequence, whereas others may have been indifferent. As such there was “compelling support for an inference that the publication of each tweet harmed Mr Fox’s reputation to an extent that is serious” [90]. Mr Fox contributing to the circulation of the claimants' defamatory statements about him did not have any material impact on the issue of serious harm.

Accordingly, the case must now be remitted to the High Court for determination on the issues of honest opinion, truth and, if necessary, damages.

Appeal – the claims of Mr Blake and Mr Seymour

Mr Fox advanced two main grounds of appeal on the serious reputational harm caused to Mr Blake and Mr Seymour by his tweets:

1. The High Court erred in law by considering only the single meaning of the tweets as determined by the court, on the basis that the readers understood the statement in that meaning.
2. The High Court’s conclusion on serious harm was plainly wrong, or the product of serious irregularities.

Both grounds of appeal were rejected by the Court of Appeal.

On ground 1, Warby LJ emphasised that the court will take into account evidence showing that people interpreted the statement “in a way that was not injurious, or less injurious than the single meaning” [114]. Such evidence may have “a significant bearing” [114] on serious harm or on damages. Yet, as the court had already established a single meaning, the burden was on Mr Fox to adduce evidence to the contrary. Mr Fox made an inferential case and, while it was not expressly addressed in Collins Rice J’s judgment, it was clear that the High Court did not consider that line of argument to have a material impact on the issue of serious harm. The High Court also expressly rejected Mr Fox’s argument that the burden was on the claimants to prove that people considered the single meaning to be true.

On ground 2, Warby LJ addressed three criticisms of the High Court’s reasoning, namely: (a) the High Court should have given greater weight to Mr Fox’s mitigating actions in promptly deleting his tweets and writing a clarificatory tweet after publication; (b) the wider reporting of the exchanges in the mainstream media should not have been treated as evidence of additional reputational harm; and (c) the “Stonewall statement” should not have been treated as evidence of reputational harm. Yet the Court of Appeal did not consider those criticisms to be substantial enough to overturn the High Court’s finding on serious reputational harm, which was upheld.

Appeal – damages

Mr Fox appealed the quantum of damages awarded to Mr Blake and Mr Seymour on the grounds that the assessment was “perverse”.

The High Court had awarded damages of £90,000 to each claimant. The Court of Appeal considered that award to be “considerably in excess of what was necessary in this case” [215] and instead awarded £45,000 to each claimant. Warby LJ noted that “there are no comparable defamation cases to assist in identifying the appropriate award” [125] and so set out the conventional damages in personal injury cases. In particular, Warby LJ drew attention to the range of damages for moderate brain injury with permanent effects on concentration, memory and the ability to work as being £52,550 to £110,720, and the range of damages for total loss of sight in one eye with reduced vision in the other as being £78,040 to £129,330.^[11]

Comment

Mr Fox’s counterclaim will now be remitted to the High Court for determination on whether the claimants can rely on the defences of honest opinion (for Mr Blake and Mr Seymour) and truth (for Ms Thorp). Given Mr Fox’s political profile, the nature of the allegations and the defences in question, the High Court declined to rule on the merits of those defences, considering it unnecessary to do so at the time.

The careful analysis of the law in Dingle is a useful reminder of the intricacies of determining pre-existing bad reputation and serious harm. The Court of Appeal emphasised the irrelevance of damage to reputation caused by third-party publications in the context of assessing whether the claimant had a pre-existing bad reputation, and whether the offending publication caused serious harm. Indeed, the reputational impact of such third-party publications can only be considered when such damage can be clearly “isolated”. The judgment emphasised that, when arguing for pre-existing bad reputation, defendants must rely on witness evidence from those who know or have had dealings with the claimant. Further, on the question of causation of serious harm under section 1(1) of the Defamation Act 2013, the Court of Appeal emphasised that it is a threshold test: there is no need to establish the definitive quantum of harm caused, which is a question for damages.

Accordingly, in assessing the counterclaim, the Court of Appeal greatly simplified the High Court’s analysis of serious reputational harm. Warby LJ noted that there was “compelling support” [90] for an inferential case of serious reputational harm, given that the allegation was serious and each tweet was a “mass publication” that would have led some individuals to have thought less of Mr Fox. As the claimants could not overturn the presumption that Mr Fox had a good reputation at the time of publication, Warby LJ considered the serious harm threshold to have been “plainly satisfied” [92] for each tweet.

Finally, on the issue of damages, this case is a useful reminder that the court will consider the quantum of damages for personal injury where there is no comparable defamation claim to consider.

‍

Article written for Entertainment Law Review.