Banks v Cadwalladr [2022] EWHC 1417 (QB) (13 June 2022)

17.06.2022

On Monday 13 June 2022 Steyn J handed down judgment in Banks v Cadwalladr [2022] EWHC 1417 (QB), the libel claim brought by Arron Banks in respect of statements made by Ms Cadwalladr in a TED Talk in April 2019 entitled “Facebook’s Role in Brexit and the threat to democracy”.

In the TED Talk Ms Cadwalladr said, in front of a picture of Mr Banks,

“And this man, Arron Banks, he funded this campaign. And in a completely separate case he’s being referred to our NCA, our equivalent of the FBI, because our EC has concluded they don’t know where his money came from. Or if it was even British.  And I’m not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government.”

In Banks v Cadwalladr [2019] EWHC 3451 (QB), Saini J ruled that Ms Cadwalladr had alleged

“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.”

Ms Cadwalladr initially pleaded a defence of truth but abandoned this in the face of an application to have it struck out. She also sought to argue that Mr Banks’ claim was limitation barred, relying upon s.8 Defamation Act 2013, because she had (she alleged) published the same allegation more than a year before the TED Talk. This defence was also abandoned when an application to strike it out was made.

The only defence that was pursued to trial was under s.4 Defamation Act 2013 (ie that the words complained of were on a matter of public interest and that she had a reasonable belief that publishing those words had been in the public interest).

There was no dispute that the words addressed one or more matters of public interest. The focus was on whether Ms Cadwalladr reasonably believed it to be in the public interest to publish those and (if she did) whether that belief remained reasonable in the light of subsequent events (including the NCA’s announcement that it had found no evidence of illegality) and the ruling of Saini J as to what the TED Talk had conveyed to reasonable viewers.

At trial Ms Cadwalladr’s evidence was that “there was no evidence” that Mr Banks “had gone through with the deals” (proffered to him via the Russian embassy) “or made any money from them”; or that he “had accepted any money from the Russian government or its proxies” or that there was any evidence “that Russian money went into the Brexit campaign”. Ms Cadwalladr also said that she had never thought Mr Banks was a “Russian agent” or a “Russian actor”.

Based in part on those statements, the Judge decided that when she gave the TED Talk Ms Cadwalladr did not intend to convey the meaning that Saini J found she had in fact conveyed and decided that she had at that point a defence under s.4.

Ms Cadwalladr had argued that even had she no defence to that initial publication, Mr Banks could not prove that the false allegations she had made had caused him serious harm to his reputation. The Judge dismissed that argument.

Ms Cadwalladr’s case was that regardless of the NCA’s announcement and the decision of Saini J (that the TED Talk conveyed a meaning that she accepted was untrue) she had a reasonable belief that it was in the public interest to continue to publish that allegation.

The Judge rejected that argument and held that once the NCA announcement had been adopted by the Electoral Commission there could be no reasonable belief that publishing the TED Talk was in the public interest. She also decided that once the meaning decided upon by Saini J was properly appreciated by her advisors the public interest defence would have been lost.

However, addressing an issue that has not previously arisen, the Judge decided that in respect of the continuing publication it was necessary for Mr Banks to prove that that continuing publication alone (ie stripping away the impact of all the preceding publication) had caused or was likely to cause serious harm to his reputation. She decided that he had not proved this.

On that basis, although it was not reasonable to believe that continuing to publish the TED Talk was in the public interest, that continuing publication did not give Mr Banks a complete cause of action in libel.

Accordingly, the claim was dismissed.

During the proceedings much had been written characterising Mr Bank’s claim as a SLAPP. The Judge expressly set out the basis upon she decided that such a description was “neither fair nor apt” and that the claim had been brought for the legitimate purpose of vindication against the false allegation made in the TED Talk.

William McCormick QC, instructed by Sue Thackeray of Kingsley Napley LLP acted for Mr Banks.

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