John Alexander Melvin Hemming v Sonia Vanessa Poulton & Ors

This is an appeal against decisions made at the trial of preliminary issues in this media and communications action.

The claimant is John Hemming, a businessman and former MP. He sues Sonia Poulton, a journalist, for libel, breach of his data protection rights, and harassment. She defends all those claims on their merits and maintains that they are an abuse of the court’s process and a SLAPP (strategic lawsuit against public participation). Ms Poulton also sues Mr Hemming and two others, Samuel Smith and Darren Laverty, for harassment. Mr Laverty counterclaimed against Ms Poulton for libel. The claims between those two parties were compromised but each has now brought proceedings accusing the other of breaching that agreement. There is a wider context, involving other individuals and other claims and counterclaims for libel and other causes of action. The case is multi-faceted.

On this appeal, however, we are concerned only with Mr Hemming’s libel claim and then only with a limited sub-set of the issues in that claim.

The libel claim is brought in respect of two publications. The first is a video- recorded interview with Ms Poulton which was first posted on YouTube in November 2019 (“the Video”). The pleaded issues include whether Ms Poulton was responsible for the publication of the Video; its natural and ordinary meaning; whether it was defamatory of Mr Hemming at common law; whether it satisfies the serious harm requirement in s 1 of the Defamation Act 2013; whether it is partially true; whether Ms Poulton has a public interest defence under s 4 of the 2013 Act; and whether Ms Poulton acted maliciously. The second publication complained of is a statement which Ms Poulton posted on her website on 10 September 2021 under the heading “POLICE UPDATE” (“the Update”). Ms Poulton admits responsibility for publication. The pleaded issues include whether the Update, which did not name Mr Hemming, referred to him; what natural and ordinary and/or true innuendo meanings it bore; whether it was defamatory of Mr Hemming at common law; whether the serious harm requirement was met; and whether Ms Poulton published it maliciously. No affirmative defence is currently advanced.

Three issues in respect of each publication were tried as preliminary issues by Susie Alegre, sitting as a Deputy High Court Judge (“the Judge”): (1) the meaning of the statement complained of; (2) whether it was defamatory of the claimant at common law; and (3) whether it was a statement of fact or of opinion. This is Mr Hemming’s appeal against the Judge’s determinations of those issues in relation to the Video and the Update. As part of the appeal, he complains that the Judge erred in not finding meanings of the Update that referred to him. He also challenges the Judge’s costs order. By her Respondent’s Notice Ms Poulton contends that on all these questions the Judge was right for the reasons she gave.

Other issues were raised in the Respondent’s Notice, including allegations of abuse of process and that the claim is a SLAPP. Ms Poulton also sought to introduce fresh evidence on the issue of whether the Update referred to Mr Hemming. A substantial respondent’s bundle was filed in connection with those points. None of these points were taken before the Judge. Before and at the hearing, we explained that they were not matters we could go into on this appeal. Ms Poulton accepted this.

Generally, the court is wary of trying preliminary issues. They can, in Lord Scarman’s memorable phrase, prove “treacherous short cuts” (Tilling v Whiteman [1980] AC 1, 25). But Part 53 of the Civil Procedure Rules (Media and Communication Claims) makes express provision for preliminary trials of the issues I have numbered (1) to (3) above. Practice Direction 53B paragraph 6.1 states that the court can determine those issues “at any time in a defamation claim”. An application must be made, and the court must agree that such a trial is appropriate. But this often happens, and for good reason.

Defamation cases are notoriously costly and can be complex. But each of these three issues raises a question of fact. In most actions the only relevant and admissible evidence is the statement complained of. The legal principles that apply are clear, well-established, and relatively straightforward. They include a requirement for the court to place itself in the position of an ordinary reasonable reader of the offending statement, and to have regard to the impression the statement made upon them. For those reasons, these three issues are quite simple and should be comparatively inexpensive to resolve. They may be determined by the court without a hearing, based on written submissions (Hewson v Times Newspapers Ltd [2019] EWHC 650 (QB)), or at a short trial. The scope for a successful appeal is limited. Unless the trial judge has erred in law, an appeal court will be slow to disturb a ruling on meaning (Stocker v Stocker [2019] UKSC 17, [2020] AC 593, [58]-[59]) or on whether the statement is one of fact or opinion (Millett v Corbyn [2021] EWCA Civ 567, [2021] EMLR 19, [21]).

The benefits of early determination of these issues, and the consequent savings in time and costs, can be considerable. As the King’s Bench Guide points out, at para 17.30, the court’s decision binds the trial judge. In that sense it is final. It may be decisive. If the court finds the words are not defamatory at common law the action will be struck out. If they are found to be fact not opinion a defence of honest opinion will not be available. A determination of meaning will identify the target for any defence of truth; it will be relevant, albeit not decisive, when assessing a public interest defence or issues of malice; and it will govern the nature and scope of any remedies: Blake v Fox [2025] EWCA Civ 1321, [113]. It is for these reasons, no doubt, that “experience shows that identifying meaning at an early stage ensures that cases which should be compromised are compromised and if there is no compromise, that all parties know where they stand”: Dyson v Channel Four Television Corpn. [2023] EWCA Civ 884, [2023] 4 WLR 67, [58].

There are however two cautionary notes to sound. The first is that any determination must be clear, unequivocal, and firmly tied to the purposes of rulings of this kind. These are to identify and spell out with precision one or more meanings or imputations about the claimant that meet the common law tests for what is defamatory and, where appropriate, to categorise the statement as factual or as an expression of opinion. Anything that falls short of meeting these criteria risks generating further disagreement and dispute. Secondly, some issues are ill-suited to preliminary trial. The King’s Bench Guide notes that the general practice is to order such trials only where the issues “can be resolved without the need for disputed witness evidence”. For this and other reasons, the court has warned of the dangers of preliminary trials on the issue of whether a statement bears a true innuendo meaning, or whether a statement that does not name the claimant nonetheless refers to them: see Bindel v PinkNews Media Group Ltd [2021] EWHC 1868 (QB), [2021] 1 WLR 5497, [6], [30]-[33] (Nicklin J); Dyson ibid. [57]-[59].

On 3 November 2019, Ms Poulton was interviewed by podcast host Shaun Attwood for some two and a half hours. The Video is a recording of that interview. It was published on YouTube by Mr Attwood on 19 November 2019, under the title “Prince Andrew, Epstein, Savile and McCann Part 1: Sonia Poulton/True Crime Podcast 59”. Mr Hemming complains of two passages which appear about half-way through. The full text of the words complained of can be found in paragraph [3] of the judgment below. Their substance and key features are as follows.

In the first passage Mr Attwood introduced Ms Poulton, outlining the topics to be covered. He mentioned Jimmy Saville and [Jeffrey] Epstein. He said, “We’ve a whole slew of political names that are gonna come up”. He referred to a documentary created by Ms Poulton. This is a work called Paedophiles in Parliament’, which has been referred to as “PiP”. Mr Attwood praised Ms Poulton for the quality of her research and her lack of sensationalism. He invited her to explain how she was qualified to speak on the subject. She said that she herself had been abused and that she had met people who had been extensively abused as children.

The second passage was introduced by Mr Attwood saying, “Going back to ‘Paedophiles in Parliament’ then Esther Baker and Hemming, we’d not discussed them yet have we? [...]” Ms Poulton then said the following:-

“[1] ... Esther Baker came out several years ago, I think her first interview was, was Sky News. I know Esther, I’ve talked to Esther several times. And she came out and she was saying that she had been abused as a child in – at Cannock Chase and she said it was an MP - and she never named the MP, she never said the M… - it was actually John Hemming who outed himself, on his own blog…”

[2] John Hemming was the first person to threaten me with legal action for when I released “Paedophiles in Parliament” and said he needed it to be removed that day otherwise, and he’s very au fait with legalese, I think he has a legal background.

[3] Erm, and I think, that, to me, I’m not making any accusations about John Hemming but it is quite clear that Esther Baker, feels that she has a case that needs to be examined - appropriately examined - and what I have seen with Esther is Esther has been savaged by some of the most AWFUL trolls online.

[4] Now there, some of them, cross over with my stalkers, some of them are my stalkers. Same people, who stalk me and in fact, Esther and I had a case against the same stalker at the same time and it was thrown out, so if you can imagine how she felt as someone is, I’m saying alleging, alleging that she is a victim of child abuse at the hands of a politician. So, imagine how she felt to be told not only is the case not going through for your stalker but he’s given a core participant role on the Child Abuse Inquiry.

[5] Pretty awful stuff really, so I don’t know the truth of the story, what I do is that John Hemming is extremely pro- active at any suggestion to do with anything to do with reputation and I don’t have a problem with that either, coz I’m extremely pro-active about my reputation because my reputation is important to me. So I don’t have a problem with that.

[6] What I had a problem with was the way that he approached me and was basically insisting that I remove it, like there and then, as if I’m just going to do it at your behest, you’ve got to be crazy mate. So I didn’t, and I withstood the pressure, and the … err ...threats of what would happen and nothing has happened since. So yeah… ”

Questioned by Mr Attwood, Ms Poulton said she didn’t know if Mr Hemming had tried to “get a strike” against her documentaries but:-

“[7] … he approached me directly and said that what I had said was wrong, it was damning and he was going to take legal action unless I removed it there and then. I was like, nah, nah, I’m not.

[8] Coz I’m not accusing him of anything in it, I’m telling the story, we are allowed to tell stories, I’m a journalist, my job is to report what other people are saying, it isn’t to furnish opinion - that’s when I have an opinion role. But my job as a journalist is to report the story, and he had a problem with me just reporting the story, which I thought was quite interesting given that he had outed himself. She never outed him - he’d outed himself.”

I have added the paragraph numbering for ease of reference.

Mr Hemming’s claim form and Particulars of Claim dated 9 October 2020 alleged that in their natural and ordinary meaning, in the context of the Video as a whole (of which a full transcript was provided), the words used by Ms Poulton meant that he (i) “is a paedophile who raped Esther Baker when she was a child”; and (ii) “has used baseless legal threats to attempt to hide his sexual misdeeds with children.” Ms Poulton denied this, pleading that the reasonable viewer “would not have understood the words complained of to bear such serious meanings”.

The Update was posted on the “fighting fund” page of Ms Poulton’s website www.soniapoulton.co.uk. This has been referred to as “the fundraising page” and I shall adopt that term. The words complained of are quite short, so it is convenient to set them out in full.

“September 10, 2021 POLICE UPDATE

Earlier this year I was interviewed by the police about a potential breach of a reporting restriction regarding an old case. The police have come back to say No Further Action will be taken. All involved were satisfied with the interview I gave. There is a general feeling that this all went too far. There is a reason for that.

There was inordinate pressure applied to the Attorney General’s office, the Metropolitan Police and the CPS by people who are desperate to stop me reporting on matters of public interest including child abuse.

My brilliant criminal lawyer, Sophie Hall, attended the interview with me – as did Muhammad Butt of BNT – and both witnessed me putting on record the names of people pushing for me to be charged and to take me away from exposing Establishment abuse. These names have been noted by all involved.

It is important for people to know that there are some dark characters out there who spend a huge chunk of their day trolling and harassing survivors of child abuse as well as attacking those who bring awareness to the issue of child abuse.

I would recommend that these people cease and desist from publishing defamatory statements about me regarding this issue. Particularly as it brings the spotlight to them.

I work for the public good, it’s time to start asking who these people work for. And why.”

Mr Hemming’s claim in respect of the Update was added by amendment in November 2023. He pleaded that the words I have quoted referred and were understood to refer to him by way of innuendo, and that they bore and were understood to bear the following meanings: (i) a natural and ordinary meaning that Mr Hemming, together with Mr Smith and Mr Laverty, “had falsely reported [Ms Poulton] to the police for a crime she did not commit and applied pressure to the Attorney General’s Office to question and prosecute [Ms Poulton]; (ii) a true innuendo meaning that he, Mr Smith and Mr Laverty, “had the motive of covering up child abuse by those, such as [Mr Hemming], who were or had been members of the ‘Establishment’ such as MPs or former MPs”; and (iii) a further innuendo meaning that Mr Hemming’s “motive was to cover up the allegation that he is a paedophile who raped Esther Baker when she was a child.” In support of his case, Mr Hemming relied as context on the fundraising page the whole of which was annexed to the Amended Particulars of Claim. The Particulars of Claim also set out details of extrinsic or innuendo facts on which Mr Hemming relied, and his case as to why those facts would have been known to readers of the Update.

In summary, Mr Hemming’s pleaded case on reference and innuendo meaning is that “followers of [Ms Poulton], including many if not most of those who ... read her website” would have understood Mr Hemming to be one of those she described in the Update as “desperate” to stop her publishing on child abuse and to take her away from exposing Establishment abuse, and that he was desperate because he was guilty of such abuse. The stated basis for this case was that readers would have known the following: (a) that Esther Baker had alleged that she was raped as a child by Mr Hemming; (b) that Mr Hemming had tried to get PiP, containing that allegation, removed; (c) that he had brought this action against Ms Poulton; and (d) that she had said of Mr Hemming that he and others had “made it their mission to destroy me and my work”. To establish knowledge of these facts Mr Hemming relied on the publication of PiP; a video called “Raw Report 04”, published by Ms Poulton on 6 November 2020; and a tweet she published on 26 March 2021. He also said that “many thousands of people have been following this case.”

Ms Poulton responded to the case on reference in paragraph 25 of her Defence. In the first sentence of that paragraph she made admissions about the sequence of publications complained of. The second sentence denied that the words of the Update were “in reference to the claimant”. Ms Poulton went on to explain, saying “They do not name him because they are not about him. The Defendant has almost always named the Claimant when she is referring to him.” She said that the Update contained “general statements about the type of enemies” she had accrued as a journalist. There was “no evidence” that people thought they were about Mr Hemming and his claims were baseless and lacking in credibility. Paragraphs 40 to 44 of the Defence contained further statements challenging Mr Hemming’s case on reference and innuendo meaning on similar lines.

On 25 March 2024, Mr Hemming filed an application notice seeking two orders of relevance to this appeal. The first was an application under PD53B. The application notice explained that the meanings of the two publications were disputed and asked the court “to determine the natural and ordinary meanings of the publications, any innuendo meanings as preliminary issues, and reference”. The second application was “to strike out or summarily judge all but the first sentence of paragraph 25 of the Amended Defence” that is to say, the passages about reference to Mr Hemming, which I have summarised above. The stated grounds for this application were that the Defence was “inconsistent with, directly contradicting” paragraph 29 of a witness statement made by Ms Poulton on 9 June 2021, so that it was “an abuse of process being two contrary assertions with a statement of truth in the same proceedings”. Further and alternatively, it was said that paragraph 25 did not disclose a reasonable ground for defending the claim and/or had no realistic prospect of success.

The passage in Ms Poulton’s witness statement that was relied on said this:

“In 2020, I made an error of saying the first names of two children from a 2015 case and during a recording with podcaster Shaun Attwood.

Once this was pointed out to me, I gave a voluntary interview to the police over two months ago. I have heard nothing since. During the interview, with two witnesses present, the officer commended me on my work safeguarding children and made it clear that there was inordinate pressure being placed to charge me. I made it clear in the interview that I believed that pressure emanated from [Mr Hemming, Mr Smith, and Mr Laverty].”

Ms Poulton did not object in principle to an order for the trial of preliminary issues. Her position was, however, that this was unnecessary and would be unduly expensive and costly. She had never said that Mr Hemming was a paedophile and did not intend to advance a defence that he was (her partial defence of truth relates only to his alleged litigiousness). As for the witness statement, Ms Poulton admitted making it. She said that it was an accurate account of what she had told the police, but that by the time of the Update three months later Mr Hemming, Mr Smith and Mr Laverty had denied that it was they who reported her, she had realised that it was someone else, “and that is who that post is about”.

The applications were heard by Deputy Master Sabic (“the Master”) on 1 May 2024. For Mr Hemming it was submitted that it would be advantageous to have a preliminary issue trial; that the defence case on reference was contradicted by Ms Poulton’s earlier statement and should be summarily disposed of as abusive or having no real prospect of success; and that, if that were done, the issue of reference would “disappear” from the case and could and should be omitted from the scope of the preliminary trial.

The Master was persuaded of all those propositions. She ordered that all but the first sentence of paragraph 25 of the Defence, as well as paragraphs 42-44, should be “struck out, with the effect that the Defendant’s denial that [the Update] refers to the Claimant is removed”. The Master did not order a trial of the issue of reference. She did order a trial of “the natural and ordinary and/or innuendo meanings of [the Video and the Update]”. She directed that the parties could file witness evidence with supporting documentation “solely on the extrinsic facts and those who were aware of them” in relation to the Update. Relying on this direction, Mr Hemming later served three witness statements in support of the innuendo meanings he attributed to the Update.

The trial took place promptly on 11 July 2024. In a judgment handed down swiftly thereafter, on 19 July, the Judge set out the terms of the publications complained of before identifying the issues for decision. At [6]-[10] she outlined the terms of the order for a preliminary trial. She noted that the Master had struck out the parts of Ms Hemming’s defence that related to reference, observing, “The issue of reference in relation to [the Update] was, therefore, not addressed at the hearing before me although I note that there is no summary judgment on that issue.” The Judge went on to determine not only issue (1) - meaning - but also to make rulings on issues (2) and (3) above. It appears that this expansion of the issues came about of the court’s own motion. But neither party has made any complaint about that.

At paragraphs [11]-[20] of her judgment, the Judge set out the relevant law. She cited the Court of Appeal decisions in Shah v Standard Chartered Bank [1999] QB 241, Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11, and Millett v Corbyn (above), and some well-known first instance judgments including the decisions of Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25, and Brown v Bower [2017] EWHC 637 (QB), [2017] 4 WLR 197. At [21]-[45] the Judge set out the parties’ contentions and applied the law to the facts of the case, in the light of the arguments.

The Judge noted that she had not only read the transcript but also viewed the entire recording. She accepted that the context suggested to the viewer that those featured would be criminals and, in particular, paedophiles. But she was not persuaded by Mr Hemming’s argument that, by reporting Esther Baker’s allegations, Ms Poulton had conveyed a “Chase Level 1” meaning, that those allegations were true. Nor did she accept that the words bore a “Chase Level 2” meaning, that there were reasonable grounds to suspect Mr Hemming of having raped Esther Baker. At [32], the Judge found that the words had “a Chase Level 3 meaning - that there are grounds for investigating whether the Claimant was responsible for child abuse”.

The Judge explained that although Ms Poulton had reported Esther Baker’s allegation, and it was a serious one, there was “a notable contrast” between the tone and style of the passages complained of and the way in which Ms Poulton had spoken about another politician and famous people in the Video. The short section complained of was “much more measured and qualified in tone and substance”, giving the impression that “the Defendant does not endorse the allegations made by Esther Baker” as she had in relation to other allegations. Although the use of the word “allegedly” to caveat the repetition of a defamatory statement does not protect the publisher, it did have some effect here, in the context of the Video as a whole. Ms Poulton had not used that term elsewhere. Her hesitancy, and her insistence that she did not know the facts, set this segment apart in such a way as to moderate the seriousness of its meaning. Viewed in its full context the segment complained of “stood out” in comparison to other segments about others such as Epstein or Saville, where Ms Poulton had been “very direct” in her assessment of their guilt. These factors tempered the seriousness of the meaning so that it stood at Chase Level 3. This was “borne out in the Defendant’s expressed opinion about how Esther Baker must feel about the need for an effective investigation”.

At [34], the Judge addressed the elements of the publication relating to Mr Hemming’s legal threats. She found that these did not suggest that the threats were baseless or an attempt to hide his sexual misdeeds with children. The discussion in the Video indicated that Mr Hemming and Ms Poulton were both regularly involved in litigation to protect their reputations, and this wider context meant that the Video did not defame Mr Hemming in this respect.

The Judge’s conclusions were summarised at [46]-[47] as follows:

“46.

The single, natural and ordinary meaning of [the Video] , with the underlined portion being opinion while the rest is fact, is:

(i)

Esther Baker made public allegations of child abuse by an MP and John Hemming revealed that those allegations were about him. Esther Baker must feel that those allegations have not been thoroughly investigated.

(ii)

John Hemming is very proactive in protecting his reputation, including through the use of legal threats.

47.

The first limb is defamatory at common law, the second limb is not defamatory at common law.”

A draft order using this language was prepared and circulated. Mr Smith and Mr Hemming proposed an amendment, suggesting that as the judgment made clear that the Judge had found the Video to bear a Chase Level 3 meaning that “there are reasonable grounds to investigate whether Esther Baker was abused as a child by John Hemming” this should be spelled out in the final order. That suggestion was not taken up.

The Judge decided that the evidence of the three witnesses was not useful and that it was unnecessary to hear from them. What mattered were the extrinsic facts, consisting of “broader publications on the Defendant’s fundraising website and other publications by the Defendant including [PiP] which refer to the Claimant and others.” As that point was “not materially contested by the Defendant no oral evidence was taken at the hearing” ([36]).

The Judge commented that the submissions for Mr Hemming “somewhat confused” the issue of innuendo meaning with innuendo reference, although it had been submitted that the Master’s decision meant that reference “was no longer in issue in the case”. As the Master’s Order had not been appealed, the arguments and the Judge’s conclusions “only address innuendo meaning without considering further the question of reference which appears to be no longer in question” ([38]).

At [39] the Judge set out her conclusions. Having considered “the broader context” of the fundraising page with its “references to threats of legal proceedings by [Mr Hemming] and others”, as well as “the extrinsic facts pleaded by [Mr Hemming] and the context of the likely readership”, she found the Update to convey the following meanings, the underlined portion being opinion while the rest was fact:-

“(i)

The Defendant was interviewed by the police about a potential breach of a reporting restriction relating to an old case, but she was told no further action would be taken. The interview came about due to improper pressure on the police and the Attorney General from powerful interested parties who wanted her to stop reporting on public interest issues including child abuse.

ii): The Defendant gave the names of those people to the police. They use harassment and defamation as a way of silencing survivors of child abuse and those who raise awareness on the topic.

iii)

(Innuendo): Their motivations for trying to cover up child abuse by members of the Establishment should be questioned. Those motivations could include the desire to cover up their own criminal activities.”

At [40] the Judge said this:

“The first and second limbs do not lend themselves to a clear analysis of the relevant Chase levels, particularly because, despite the strike out of the Defendant’s defence relating to reference, it is unclear how far the Claimant is implicated in the improper actions described in those two limbs. To ascribe direct specific involvement of the Claimant in those activities would be to overly strain the natural and ordinary meaning of the words. The level of seriousness in relation to those meanings is to note that the Claimant was involved, in some way, in those activities. The third limb, which refers to the motivation to cover up child abuse, however, amounts to Chase level 3 seriousness – that this needs to be investigated.”

At [41]-[43] the Judge identified the extrinsic facts on which she based the innuendo meaning. In summary, she found that in the light of Ms Poulton’s own output and extensive third-party media coverage at least “some readers” of the Update will have known that Esther Baker had accused Mr Hemming of sexually abusing her; that he had strongly denied it; that Esther Baker had sued him for defamation and he had counterclaimed; that he had sued Ms Poulton; and that she was fighting back. The Judge held that this “would have had an impact on their understanding of [the Update] in relation to the Claimant and the wider context of allegations of child abuse and defamation claims as a means of covering up allegations”.

At [44], the Judge addressed the question of whether the meanings were defamatory at common law, concluding that “all elements of meaning, assuming reference to the Claimant in some capacity” would meet the common law test.

The starting point for Mr Hemming’s challenge to the Judge’s determination was that, in substance, she found that the Video bore the Chase Level 3 meaning of reasonable grounds to investigate identified in paragraph [32] of her judgment. He is clearly right about that.

The primary ground of appeal was that it was an error of law to find such a low level of defamatory meaning. Mr Hodson submitted that, although the Judge had correctly stated the relevant legal principles, she had failed properly to apply them. Paragraph [1] of the words complained of contained a report of Esther Baker’s allegations against Mr Hemming. The “repetition rule” means that such a report bears the same meaning as the original allegation; and only in exceptional circumstances can such a defamatory sting or “bane” be neutralised by any “antidote” provided by other parts of the publication. For these propositions, Mr Hodson relied on Mark v Associated Newspapers Ltd [2002] EWCA Civ 882, [2002] EMLR 38. In this case, he submitted, there was nothing in the other parts of the Video that was capable of amounting to an antidote or of significantly qualifying the sting of the reported allegation in paragraph [1]. Indeed, there was much that tended to support, reinforce, or enhance the Chase level 1 meaning of the reported allegation. The Judge should therefore have found that the Video bore the Chase Level 1 meaning of guilt of which Mr Hemming complained.

In the alternative, Mr Hodson submitted that Ms Poulton’s words contained so little by way of qualifying statement that the Judge should have found at least a Chase Level 2 meaning. In the further alternative, he argued that even if the Judge’s conclusions as to meaning were legitimate the way she had expressed them was unclear and flawed. Her order should have spelled out the key defamatory imputation in the way that had been suggested. Had that been done the Judge would have been bound to identify the statement as one of fact not opinion.

I would dismiss the primary ground of appeal. I think Ms Poulton was right to say in her Defence, and in her submissions to the court, that the argument for Mr Hemming is based on an overly simplistic and mechanistic approach to the repetition rule.

In most libel claims the first step is to decide whether the words complained of bear a natural and ordinary meaning that is defamatory of the claimant by the common law tests. The natural and ordinary meaning is the single meaning that would be conveyed to the hypothetical ordinary reasonable reader. From time to time, attempts have been made to create prescriptive rules about how that reader responds to various kinds of statement. This happened in Lewis v Daily Telegraph Ltd [1964] AC 234, where the appellants argued that as a matter of law a statement of suspicion imputes guilt. That argument was rejected by the House of Lords as fallacious. As Lord Devlin said, at p 285:

“A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning the words convey to the ordinary man: you cannot make a rule about that.”

The argument for Mr Hemming seems to me to involve that same fallacy. The natural and ordinary meaning of a statement is not identified by focusing on a single sentence or passage in isolation, attributing a meaning to it by the application of a rule, and then searching the rest of the publication to see whether there is anything that neutralises that meaning. The natural and ordinary meaning is that which the ordinary reasonable reader takes from the publication as a whole. The “repetition rule” and the “bane and antidote” principle are both subsidiary to that overarching principle. Their primary function is descriptive rather than prescriptive; they are tools to help the court decide how the ordinary reasonable reader would respond to a particular statement.

In her exposition of the relevant legal principles, the Judge cited these passages from the decision of Nicklin J in Brown v Bower (above):

28.

The repetition rule clearly applies when the court is considering the meaning of words, but it takes its place alongside all the other matters to which the Court must have regard when determining meaning. The task is to determine what the ordinary reasonable reader would understand the words to mean. The repetition rule cannot be applied mechanistically to the determination of meaning. If Ms Page’s strict application of the repetition rule were correct, then it would make no difference to meaning whether the words complained of were: “X proved/alleged/suggested/hinted that Y was a thief”. Although each of those four verbs is apt to convey a subtly different meaning, because each is a repetition of X’s charge against Y, Ms Page’s contention would mean that it would make no difference; applying the repetition rule, the resulting meaning would always be guilt.

29.

It seems to me that, as is nearly always the case in determining meaning, context is everything. It is easy to imagine cases where a publication refers to an allegation because the author wants to establish the fact that the allegation was made rather than any suggestion on her part that the allegation is true. Borrowing from Lord Devlin’s analogy, it may be difficult to repeat the allegations of others without suggesting to the reader that the allegations are true, but it can be done. ...”

I believe this analysis is sound and consistent with the authorities. In Stern v Piper [1997] QB 123, 138 Simon Brown LJ described the repetition rule as “a rule of law which, where it applies, dictates the meaning to be given” to a statement. But this phraseology needs to be read in the light of the later cases. I would refer, first, to the judgment of May LJ in Shah v Standard Chartered Bank (above) at p 266, with which Sir Brian Neill agreed. May LJ said that the “obvious underlying reason” for the repetition rule is that “statements of this kind in substance restate the original publication.” He explained that the rule is one “which encapsulates the fact that publications of the bald kind under consideration do in substance amount to republication of the reported publication and that is their meaning”. I have added the emphasis here, to highlight two points: first, that what the court was considering was the application of the rule to “bald” repetitions; secondly, that the rule reflects the reality of how people respond to such communications.

The second important judgment is that of Simon Brown LJ, with whom Mummery and Dyson LJJ agreed, in the case on which Mr Hodson relies, Mark v Associated Newspapers Ltd. At [29], Simon Brown LJ explained his observations in Stern v Piper, making clear that to say - as he had - that the repetition rule “dictates the meaning to be given to the words used”

“… is by no means to say that the meaning dictated is an artificial one. Rather the rule accords with reality. If A says to B that C says that D is a scoundrel, B will think just as ill of D as if he had heard the statement directly from C.”

At [37], Simon Brown LJ explained the interaction between the repetition rule and the bane and antidote principle:

“If the defamatory sting of an article is wholly removed by surrounding words then, to use Baron Alderson’s famous phrase in Chalmers v. Payne (1835) 2 C.M. & R. 156 at 159: “The bane and the antidote must be taken together.” Nor could it be doubted that the principle applies to repetition cases—see again, Stern v. Piper. As Hutley J.A. observed in Sergi v. Australian Broadcasting Commission [1983] 2 NSWLR 669 at 670: “the bane and antidote theory . . . is merely a vivid way of stating that the whole publication must be considered, not a segment of it”. One asks, therefore, in this as in any other case where the principle is invoked, whether, considered as a whole, the publication is damaging to the claimant’s reputation. …”

Nicklin J added some flesh to these bones in paragraph [40] of Brown v Bower with which, again, I agree:

“... to produce a Chase level 1 meaning, the effect of the publication (taken as a whole) has to be the adoption or endorsing of the allegation. That adoption or endorsement may come from “bald” repetition (as May LJ observed in Shah) or it may come from other context which signals to the reader that the allegation is being adopted when it is repeated. The converse is also true. The context may signal to the reader that the allegation is not being adopted or endorsed. Sometimes allegations are repeated to criticise the person who made them. When doing so, prudent publishers often expressly state that the allegations were “baseless”, but whilst no doubt sufficient (in most cases) to prevent the publisher being found to have adopted the allegation by repetition it is not necessary in all cases for this to be stated expressly. It all depends upon the context.”

Reviewing the approach of the Judge in the light of this analysis I can detect no legal error. In my judgment, her decision was a legitimate application of established principle to the particular facts of the case. She was by no means bound to conclude that the Video bore a Chase Level 1 meaning. This was not a case of “bald” repetition. The reported statement was accompanied by the various qualifications in paragraphs [3], [5] and [8] of the passages I have quoted above. The Judge had to assess, in the established manner, the impact which the entire publication would have had on the viewer. In doing so, she had proper regard to the manner and tone in which the words complained of were spoken, and the context, including the content, manner and tone of what Ms Poulton had said when dealing with allegations against other famous people. The Judge had several advantages over this court. She was able to view the recording, which has not been provided to us. She came to the matter fresh, without the need to consider any prior decision on the issues. She was able to follow the approved practice at first instance of watching and reading the publication complained of before reading or hearing argument. For all these reasons I would reject the contention that the Judge erred in substance when she held that the meaning conveyed to the ordinary reasonable reader was at Chase Level 3.

I do see force in Mr Hemming’s fall-back arguments about the form of the judgment and order. The meanings formulated at paragraph [46] of the judgment and repeated in the formal order are a form of paraphrase, which includes some irrelevant non-defamatory matter, fails to focus on what the statement means about the claimant, and omits the essential defamatory imputation which the Judge had earlier identified. As the Judge indicated, that is an imputation implicit in the suggestion that Esther Baker was or would be justified in feeling that her allegations should have been properly investigated. That suggestion may be an expression of opinion, but the implicit imputation identified by the Judge is one of fact. I would therefore set aside this part of the order and substitute a determination that the natural and ordinary meaning of the Video was that “there are reasonable grounds to investigate whether John Hemming abused Esther Baker when she was a child” and that this is a defamatory factual imputation. To that limited extent I would allow the appeal against the Judge’s determinations in respect of the Video.

There were two grounds of appeal against the Judge’s determinations in respect of the Update. The first ground of appeal challenged the Judge’s overall approach to meaning as inconsistent with the Master’s order and confused. Mr Hodson argued that the Master had conclusively determined in Mr Hemming’s favour the issue of whether the Update referred to him. The Judge should have taken that as her starting point and found that the Update bore Chase level 1 meanings about Mr Hemming, as pleaded by him. Instead, the Judge first directed herself to decide only meaning and not reference but then went on, inconsistently, to make some ambiguous and unclear statements suggesting that the Update did refer to Mr Hemming to some unspecified extent. The second ground of appeal was that the Judge was wrong to place her meaning (iii) at Chase level 3. Mr Hodson submitted that the Judge’s decision on this point was inconsistent with her own reasoning on the meaning of the Update generally and at odds with the relevant authorities.

I agree that the Judge’s determination is an unsatisfactory halfway house and that the issues need to be looked at again by this court. But that is not because the Judge made the legal error attributed to her by Mr Hemming. On the contrary, the problem is that the Master’s order did not resolve the disputed issue of whether the Update referred to Mr Hemming, nor did it contain any provision for the determination of that issue. This left the Judge in the unenviable position of being asked to reach a final decision on whether words that did not mention Mr Hemming bore a defamatory meaning about him, when the issue of whether readers would have understood the words to refer to him remained unresolved. This quandary was essentially one of Mr Hemming’s making. It stemmed from the way he put his case to the Master. The way he ran his case at the trial did not help the Judge resolve it. The reasons for saying this may be clear already, but I shall spell them out.

Mr Hemming’s application for a preliminary trial of the meaning of the Video was conventional and fitting. The Video expressly referred to him and its natural and ordinary meaning could be and was resolved by reference to the offending statement alone. The process worked well, except for the formal flaws I have mentioned. The application for a trial of preliminary issues in relation to the Update was a departure from the norm. For the reasons I have explained, it is not usual to try either reference or innuendo meaning as preliminary issues. But that is not to say it can never be appropriate. The original application in this case was for a trial of both those issues. That made sense, as there was and is a substantial overlap between the extrinsic facts relied on in support of the case on reference and innuendo meaning. As it turned out, there was little dispute about the extrinsic facts and what was known about them by readers of the Update; in any event, the Judge was able – in the context of meaning – to make findings about those matters. I have no doubt she could and would have done the same had she been asked to try the issue of reference. But she was not. And it was Mr Hemming’s application for strike-out or summary judgment that caused the problems.

The question of whether a published statement refers to the claimant turns on whether the reasonable reader would understand it in that way. The test is objective; the publisher’s subjective intention is irrelevant. For these reasons, assertions by Ms Poulton about who she intended to refer to when she published the Update were irrelevant and liable to be struck out. But that was not the basis for Mr Hemming’s application. It rested instead on the legally mistaken premise that Ms Poulton’s intention was relevant, indeed decisive. It was on that basis that the contrast between her pleaded case and her witness statement of June 2021 was said to disclose an abuse of process or to show that she had no defence on the issue of reference. So, the Master was entitled to strike out at least some of paragraphs 25, 42-44 of the Defence, but not for the reasons she gave.

The Master went further and struck out the denial of reference altogether. That was a more radical step, as the onus of proving reference always lies on the claimant and a defendant is generally entitled to challenge the claimant’s case. It is unnecessary for us to decide whether the Master was right to do what she did. The important point is that she did not enter summary judgment for Mr Hemming on the issue of reference. Indeed, the application notice did not ask for that, nor did the evidence support such an order. It follows that the Master was wrongly persuaded that a trial on the issue of reference was unnecessary. In this respect the arguments on reference presented on behalf of Mr Hemming at the trial and on this appeal are unsound.

The Judge was presented with a dilemma. The claim in respect of the Update required the court to consider context and/or extrinsic facts in relation to two separate but related issues, namely reference and meaning. The Master had directed a trial of one of those issues (meaning) without resolving the other (reference). Standing back, it can be seen that three main options were open to the Judge: (a) to decide the preliminary issues in respect of the Update without identifying a meaning that referred to Mr Hemming; (b) to direct and conduct a trial of the issue of reference; or (c) to decline to decide any preliminary issues in respect of the Update (the court may conclude that an order for preliminary trials should be rescinded: see Harcombe v Associated Newspapers Ltd [2022] EWHC 543 (QB) [13]). The Judge took option (a). With the benefit of hindsight, and for the reasons I have indicated, we can see that option (b) was available and would have been preferable. I can understand why the Judge did not adopt it of her own initiative. For one thing, nobody was suggesting this course of action. Nor did either party suggest it in their documents for this appeal. But to leave things as they stand would risk procedural confusion and wasted costs.

A practical and effective solution is available. It is the one we suggested to the parties before this appeal came on for hearing, and which Mr Hodson came to adopt as a fall-back to his primary case: this court should fill the gaps in the decision below by ruling on both reference and meaning, and then reviewing the Judge’s decisions on whether the statement complained of was defamatory, and whether it was fact or opinion. We have the power to make any order that could have been made in the court below. In the unusual circumstances of this case it would be in accordance with the overriding objective to exercise that power in this way. We have before us the statement complained of, with all the contextual material relied on. We have the Judge’s findings of fact. And we have given the parties a fair opportunity to address us on these issues.

I think the self-restraint required of an appellate court means that we should approach this exercise by affording appropriate respect to the decisions of the trial Judge, so far as they go, and to the conclusions that can be inferred from what she said on the issue of reference. On that basis, and applying the legal principles set out by the Judge, I have reached these conclusions.

First, Mr Hemming’s case on reference is made out. The ordinary reasonable reader of the Update would have read and understood it in the context of what Ms Poulton had already said elsewhere on that same webpage. For that reason, the reader would have identified Mr Hemming as someone to whom the statement referred. The fundraising page contained a series of statements by Ms Poulton on similar themes, amounting to a thread, which contained several references to Mr Hemming. There was a link, or “nexus” between the Update and the other statements, sufficient to identify Mr Hemming in the mind of the reasonable reader as a subject of the statements complained of: see Simon v Lyder [2019] UKPC 38, [2020] AC 650.

I need not set out the full text of the other relevant entries on the fundraising page. Suffice to say that they included the following. They made clear that Ms Poulton was a journalist working in the public interest, intent on exposing wrongdoing by members of the Establishment; they said she had “enemies” who were “desperate” to harm her; they told the reader about PiP and that Mr Hemming was a former MP who featured in it; that he was suing Ms Poulton for defamation over things she had said about child abuse in the Establishment; that she was vigorously defending the claim; that she was countersuing Mr Hemming for harassment; that she considered his behaviour to be unreasonable, oppressive, and intended to pressure her into silencing herself; that the alleged harassment included an email sent by Mr Hemming in October 2020 claiming that she was under police investigation; and that, according to her, “some people look for any reason to report me to authorities”.

Secondly, the Update conveyed the following defamatory meanings about Mr Hemming:-

These are all natural and ordinary meanings which emerge from the words complained of, read in the context of the fundraising page as a whole, and without reference to the extrinsic facts identified by the Judge. But the Judge’s findings as to extrinsic facts bolster these conclusions as to meaning. It will be clear from what I have just said that I reject Mr Hemming’s second ground of appeal. The Judge’s view was that the gravity of this imputation was at Chase Level 3. I think that view was open to her given the line taken by Ms Poulton on her fundraising page about the connections between Mr Hemming and allegations of child abuse. I can see no inconsistency between this limb of the meaning and the others. There is no other reason to second guess the Judge on the gravity of this part of the imputation.

Thirdly, the statement complained of is mainly factual. That includes the third limb of the imputation; as I have already said, an allegation that reasonable grounds exist to investigate some issue is an allegation of fact, not an expression of opinion. But the two parts of the meaning which I have underlined at [60] above are expressions of opinion. The first (“inappropriate and excessive”) reflects Ms Poulton’s use of the word, “inordinate”. The second (“improper”) reflects her use of the words “dark characters”.

I would therefore allow the appeal in respect of the Update, set aside the Judge’s determination, and substitute an order reflecting the conclusions I have now set out.

The Judge decided that the costs of the trial should be costs in the case. She gave two reasons. First, that her findings were not dispositive of the case as a whole; they left other matters still to be litigated. Secondly, that in this case it would be inappropriate to address the costs of the preliminary trial separately from those of the proceedings as a whole, because “the behaviour of the parties in relation to the proceedings overall raises questions that go far beyond the issues before me”.

Mr Hodson argued that the Judge’s first reason ignored the fact that the trial dealt with self-contained issues in respect of which he was the “successful party” for the purposes of CPR 44.2(2)(a). He relied on my decision on costs after the trial of meaning in Vardy v Rooney [2020] EWHC 3831 (QB).Mr Hodson said the Judge’s second reason was not clear, cogent, or a sufficient ground for withholding a costs order. These points remain for our consideration, as the outcome of this appeal has not materially changed the relative success of the parties on the issues litigated below.

I would dismiss this aspect of the appeal.Decisions as to costs are discretionary. This court will not interfere, unless there is an error of principle or the decision is outside the range of reasonable decisions available to the judge. Judges of the Media and Communications List have not always taken the view I took in Vardy v Rooney. I understand that orders for costs in the case are, if not the norm, frequently made. We do not need to lay down any general rule. In my judgment the Judge’s second reason is coherent, tied to the particular facts of this case, and we have been given no sufficient grounds on which to interfere with her assessment.

I would allow the appeal to the extent I have indicated. As for consequential orders, I would need persuasion that this outcome represents a victory for Mr Hemming such as would justify an order for costs in his favour. It will in any event remain for us to set directions for appropriate amendments of the statements of case and for the case to progress towards a trial of the remaining issues. I would invite the parties to attempt to agree directions or, if they cannot, to file written representations as to what they should be.

I agree.

An individual defendant to a libel claim is in an unenviable position. Defamation remains, even when explained as lucidly as in Warby LJ’s judgment, a highly complex and technical area of the law. The costs of losing at a trial are potentially ruinous. The minute, line-by-line examination of the Update which we had to conduct illustrates that a defendant publishing a fundraising webpage is treading on eggshells in what she can safely say to encourage contributions. But these are not problems which we can solve. Accordingly, despite these misgivings, I also agree with the judgment of Warby LJ.