John Alexander Melvin Hemming v Sonia Vanessa Poulton

permitting the requested amendments to the Counterclaim, with the consent of the Claimant (subject of course to his application) and of the Third Party and the Fourth Party (both of whom participated briefly, representing themselves) - in the case of the latter two, on terms as to payment of their costs, which were agreed (in the case of the Third Party) and summarily assessed (in the case of the Fourth Party); and

deciding to consider the requested amendments to the Defence in the course of the Claimant's application. That way, it would be possible to consider the merits of both applications in the light of the case that the Defendant wishes to put forward.

At that point, the Third Party left the hearing, as he was not party to the Claimant's application, and had indicated in advance that he did not wish to participate, or to stay and observe, once the matters directly concerning him had been dealt with. (The Fourth Party remained as a non-participating observer.)

Background - the Parties and the Claim

"I am pleased that the Police have now made it clear that there has been a concerted effort to promote false criminal allegations against me and that the allegations had no substance whatsoever".

It went on to describe what had happened to him as a "dreadful experience", involving a "concerted campaign involving your political opponents and many others in public", to refer to the creation of "an environment in which it is reasonable to be concerned about ill founded vigilante attacks on your family and yourself", and to mention a lobby supportive of him "which included many people who were themselves real survivors of abuse, which has helped". I infer that this was the first formal public identification of the Claimant as the object of Ms Baker's allegations, although he says that some people had put two and two together, and named him in internet postings.

the Claimant emailed the Defendant saying that he had been told that she had "put up a video in which you republish Esther Baker's false allegations about me", adding that he had already sued a Mr Graham Wilmer for "promoting" those allegations, and that Mr Wilmer had submitted a Defence (which the Claimant attached) which did not claim that those allegations were true, and further suggesting that she might wish to edit her video to remove those false allegations;

later the same day, the Defendant responded that (this is not the entire email):

the Claimant sent the Defendant a link to Channel 4's Producer's Handbook, and the Defendant responded that she had nothing to do with Channel 4, adding that "this is starting to sound like threat and I don't appreciate it";

the Claimant suggested that he could approach the matter more formally, although he had not yet threatened legal action, but said that "I have had death threats on the back of the false allegations hence I do not appreciate their repetition";

the Defendant invited the Claimant to be interviewed by her, adding "It's legitimate reporting and I stand by it";

the Claimant said he would have to get an analysis of the video done, that he needed to protect his family from "this harassment campaign", and that he had already issued one set of proceedings for defamation and would "need to work out whether to add your case to that set of proceedings or to issue a separate set of proceedings";

the Defendant's response was in the following terms:

It is a matter of record that the Claimant did not, in the event, issue any claim against the Defendant arising out of PIP.

it illustrates the important differences in approach of the Claimant, who wished to protect himself and his family from the continuing serious and unpleasant effects (whether actual or prospective) of these matters being placed in public domain yet again, and of the Defendant, who regarded her activity as legitimate and important journalism. These differences are carried forward to the instant proceedings;

the Defendant recognised that the Claimant has himself "fought long and hard for vulnerable people";

the Claimant relies upon this to illustrate that the Defendant knew, as early as August 2018, both that he took exception to this matter being publicised again, and that he had already sued Mr Wilmer, who had not chosen to assert the truth of Ms Baker's allegations;

this email chain does contain a threat of legal action against the Defendant which was not carried into effect. Whilst it is true that at this point, the Claimant had not seen PIP or been informed of the precise words used in it (it may be that, upon scrutiny, they did not cross any line which might have made them actionable), I suspect that this set of communications informed the Defendant's observation in the video podcast referred to below about the Claimant's previous threat of legal action.

Page 23

SA: Today we have Sonia Poulton on the Video. This Video is gonna go over everything from Jimmy Saville to more contemporary big story in that category Epstein. We've a whole slew of political names that are gonna come up and I have watched Sonia's documentary three times now. It’s just absolutely blown my mind the level of research she has done into this and whereas you see some people putting videos out really sensationalising and getting into the most extreme claims, what I like about Sonia is that she draws the line at an appropriate place and it enhances the reliability of what she's about to tell us. But before we go to that dark realm, how are you qualified to speak on this subject?

SP: Well um apart from the fact that I was actually abused as a child so I do understand that, um but that isn't really my entrance. My entrance was meeting people who had been extensively abused as children, finding an empathy with them, understanding them, where they were coming from, seeing that their biggest problems were actually dealing with the system and challenging the system that had enabled them to be abused.

…

Pages 54 - 56

SA: So, going back to “Paedophiles in Parliament” then Esther Baker and Hemming, we’ve not discussed them yet, have we? […]”

SP: What I can say to you is, 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…”

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. 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. 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. 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. 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…

SA: So did he actually take any court action to you or did he try and get you to do like a strike against those documentaries?

SP: Well, I don’t know if he tried to get a strike. I don’t know that. But 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. 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.

SA: Did you have any other legal action from any other quarters?

SP: I have threats, almost on a regular basis. Erm, I have been, oh now let me see, I’ve been, fallen foul of the McCanns several times, as everybody does, everybody who speaks out and err I’ve… their spokesman, Clarence Mitchell, went into a newspaper and called me a conspiracy theorist which was absolutely designed to just say ignore her, you know, as soon as you start that person dabbles in conspiracies, we know what it’s about. It’s the… might as well have just said, you know, she’s got mental health problems, it would’ve had the same impact. So, I’ve had that kind of stuff where people use their establishment contacts to demonise me, to smear me, to try and make me lose work, but I’m still around.

SA: Just adds more credibility to you as far as I’m concerned.

SP: Well the thing is, honestly, you know and I said this to you two earlier (Footnote: ²) is my attitude very much is: we’re all gonna die, so I’d rather go down in a hail of bullets than on my knees. [SA laughs]. That’s really the bottom line. Right, because I’m not going to submit to anybody, right but if that’s the way it has to be then that’s the way it has to be.

SA: You’re the personification of a Spitfire.

Meaning 1 - that the Claimant is a paedophile who raped Esther Baker when she was a child; and

Meaning 2 - that the Claimant has used baseless legal threats to attempt to hide his sexual misdeeds with children.

Law and Procedure

CPR

Rule 3.4 - Power to strike out a statement of case

In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

The court may strike out a statement of case if it appears to the court—

Rule 24.2 - Grounds for summary judgment

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—

it considers that—

that claimant has no real prospect of succeeding on the claim or issue; or

that defendant has no real prospect of successfully defending the claim or issue; and

there is no other compelling reason why the case or issue should be disposed of at a trial.

I refer below where necessary to CPR part 53 (Media and Communications Claims) and its Practice Direction B.

Defamation Act 2013

Section1 Serious harm

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. ...

Section 2 Truth

It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.

If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation

Section 3 Honest opinion

It is a defence to an action for defamation for the defendant to show that the following conditions are met.

The first condition is that the statement complained of was a statement of opinion.

The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

The third condition is that an honest person could have held the opinion on the basis of—

Section 4 Publication on matter of public interest

It is a defence to an action for defamation for the defendant to show that—

Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.

For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. ...

Protection from Harassment Act 1997 (PHA)

Section 1 - Prohibition of harassment

A person must not pursue a course of conduct—

which amounts to harassment of another, and

which he knows or ought to know amounts to harassment of the other.

...

For the purposes of this section ... the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

Subsection (1) ... does not apply to a course of conduct if the person who pursued it shows—

Section 3 provides a civil remedy (damages and injunction) for a breach of section 1.

The Issues

meaning;

responsibility for extent of publication;

"serious harm";

truth;

opinion;

public interest;

DPA/GDPR; and

the harassment Counterclaim.

I deal with these in turn, always bearing in mind that for the purposes of summary judgment I must in particular

- consider whether the defendant has a realistic, as opposed to a fanciful, prospect of success;

- avoid conducting a “mini-trial” without the benefit of disclosure and oral evidence, and likewise avoid being drawn into an attempt to record conflicts of fact which are normally resolved by a trial process;

- take into account not only the evidence actually placed before me on the application for summary judgment, but the evidence that can reasonably be expected to be available at trial; and

- determine any point of law, as long as I am satisfied that all the evidence necessary for the proper determination of the question is before me;

see e.g. Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37; [2017] 4 WLR 163, per Hamblen LJ.

Meaning

Meaning 1 - that the Claimant is a paedophile who raped Esther Baker when she was a child;

Meaning 2 - that the Claimant has used baseless legal threats to attempt to hide his sexual misdeeds with children.

The Claimant relies (Particulars of Claim paragraph 9) on the annexed transcript of the Video.

"The traditional rule is that the defendant may not say what he says the words mean. The rule was questioned over 30 years ago by Mustill LJ in Viscount de L’Isle v Times Newspapers Ltd [1988] 1 W.L.R. 49, 58C–D:

“… it is submitted that this rule needs re-examination; in many cases one of the crucial issues at trial is the meaning of the words and it would be clearly convenient if the precise issue between the parties was placed on the record in the pleadings before the hearing.”

The reasons for defendants’ reluctance to state their position had to do with jury trial, and make little sense now that trial by jury is a dead letter. See Nicklin J’s characteristically fresh and lively discussion of the issue in Bokova v Associated Newspapers Ltd [2018] EWHC 2032 (QB); [2019] Q.B. 861; [2019] E.M.L.R. 6 at [7]–[10]."

Meaning 1

" i. The Defendant is aware of, but does not know the truth of, Ms Baker’s allegation that she was abused as a child by the Claimant, which the Claimant denies;

Like the Defendant, Ms Baker has been subjected to trolling and stalking, although both their allegations against the stalker were thrown out of Court and it later transpired he was offered a role on the Child Abuse Inquiry, which must have been very difficult for Ms Baker if she is a victim of child abuse as she alleges;"

"Paragraph 8 is denied. The reasonable viewer of the video would not have understood the words complained of to bear such serious meanings. The Claimant’s first meaning is based on an overly simplistic and mechanistic approach to the repetition rule."

As mentioned in paragraph 29 above, the omission at this point of any pleaded case as to meaning does not preclude the Defendant from disputing the meaning alleged by the Claimant. (It is different if truth is to be alleged - see paragraph 4.3 of Part 53 Practice Direction B, considered further below.)

"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. “One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that” (the final important sentence from the quotation in para 22 above).

30 In my judgment, 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. As the New South Wales Court of Appeal put it, succinctly, in Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43, 49–50: “There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted.” In John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; 64 NSWLR 485 McColl JA analysed the authorities ( paras 98–102) before concluding at para 119:

“This review of the authorities demonstrates that: (a) Republication of defamatory hearsay constitutes adoption of the defamatory statement —using ‘adoption’ in the primary sense; (b) As a general rule the republisher is liable in defamation as if the author of the defamatory hearsay; (c) To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication.”"

the Defendant expresses herself forthrightly and with considerable confidence when dealing with the people whose names appear in the title, and with some of the other individuals who form the subject of discussion. I do not comment here on the nature or likely accuracy of all the claims that she makes: suffice it so that many of them would be widely regarded as highly controversial. But by contrast, her words when dealing with the Claimant (p 54) are rather more guarded: she states that "I'm not making any allegations about [the Claimant]", and invites Mr Attwood to "imagine how [Ms Baker] felt as somebody who is, I'm saying alleging, alleging that that she is a victim of child abuse at the hands of a - of a politician" (the following reference to a "stalker" is not a reference to the Claimant); and

the Claimant is not a named as a subject in the title of the interview, and it appears that the Defendant was not particularly expecting questioning about him to come up (she has said so in evidence). Her response "OK, alright" (p 54) when the subject of Ms Baker and the Claimant was put to her supports this. The passage dealing with Meaning 1 takes up a little more than half a page of a transcript of a 61 or so pages.

"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."

"To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication.”

I conclude that the Defendant has a real prospect of showing that the words used, taken "as a whole" (Footnote: ³), show that the Defendant was "reporting the story" in a journalistic context, but without actually adopting or endorsing the accusations, and indeed with an express disclaimer of any adoption of Ms Baker's allegations. As I have indicated, this was in the context of a long interview in which the Defendant does seem to have set out and adopted (and not disclaimed endorsement of) a large number of other allegations against different people.

Meaning 2

The Defendant was a contributor and journalist for the Publication and had editorial control of the Publication. She herself spoke (into video recording equipment for later publication) most of the words of which the Claimant complains in the Publication, but the words of the host (Mr Shaun Attwood) in the Publication are also relied upon for context in relation to meaning.

Mr Attwood has accepted liability for his publication of the Publication, removed it from his Youtube channel and published an apology entitled, “Shaun Attwood’s Legal Correction” at the URL https://www.youtube.com/watch?v=Q2Om8g2Mcc4. The Claimant nevertheless holds the Defendant joint and severally liable for the damages caused by the video whilst it remained online and relies on the two separate publications of the Publication, one of which remains online."

As to paragraph 10, save that it is admitted that the Defendant was a contributor to Mr Attwood’s programme by speaking the words complained of whilst she was being interviewed by him as a journalist, it is denied that the Defendant had any control, editorial or otherwise, over Mr Attwood’s recording containing the words complained of. He stored the recording. He transmitted the recording to viewers and/or listeners on his chosen platform(s). Mr Attwood managed the content. The Defendant had no control over way in which the video was uploaded, including the manner, timing and forum of its communication. Paragraph 9 above is repeated.

The first sentence of paragraph 11 is admitted. The Defendant understands that Mr Attwood published his apology and correction on 21 September 2020. As to the second sentence, paragraphs 9 and 13 above are repeated."

where a defendant has authorised its republication;

where a defendant has intended such republication;

where republication was the "natural consequence" of the original publication; and

where there was a moral obligation to republish the statement.

He contends that each of the first three of these applies here. But that is not the same as what is actually pleaded, which is - whatever may be the strength of his submission about the underlying facts - actual editorial control. I have identified no strong evidence, let alone conclusive evidence, that the Defendant exercised - or was entitled to exercise - control over what Mr Attwood was airing on his YouTube channel. (Mr Munden persuasively compared the Defendant's position with that of a guest on a television chat show, who would attend and have their say, but have no further involvement with either the editorial or the broadcasting process.)

Serious Harm

The allegations outlined above in the Publication (‘the Allegations’) are defamatory at common law and have caused and were likely to cause serious harm to the reputation of the Claimant pursuant to section 1 of the Defamation Act 2013 (‘the Act’).

The Allegations include some of the most serious allegations which could be made about anyone, including systemic rape and sexual abuse of children. Such allegations are so vilifying that they have a tendency to incite members of the public into acts of violence against the subject. Indeed, as the as the Defendant said herself in the Publication: “being accused of being a child abuser or a paedophile is a horrendous thing and it makes your life dangerous”; and “nobody who isn’t a paedophile approves of them. Everybody wants to see them dead or on an island or just away from me.” It is therefore safe to infer that the Allegations caused and were likely to cause serious harm to the Claimant’s reputation pursuant to section 1 of the Act.

The Allegations made by Esther Baker against the Claimant previously led to his receiving death threats and a man named Declan Canning to being convicted for making threats to kill him (this conviction before the Publication). Therefore, the Claimant believes that their repetition in the Publication is likely to inspire others to wish him harm and put his life at risk.

The court is bound to interpret the law, as far as possible, in a manner consistent with the European Convention on Human Rights per s3 Human Rights Act 1998. The nature of the allegations made and their prominence engages the Claimant’s Article 2, 3 and 8 rights under the European Convention on Human Rights and the Human Rights Act 1998. It is trite law that Article 8 encompasses both work and relationships.

Further or alternatively, the Allegations have caused, were and are likely to cause serious harm to the Claimant’s reputation in actual fact. The Claimant will rely, inter alia on the following facts and matters:

The extent of publication of the Publication, as to which paragraphs 12 and 13, above, are repeated;

The interference with his ability to start up new businesses;

Comments on the YouTube videos by YouTube users which demonstrate that the Publication has seriously harmed the Claimant’s reputation (as to which the Claimant will rely on screenshots of those comments in Annex 3);

Repeated references in the Publication to how credible the Defendant is and how well-researched her allegations are; and

The undermining by the Defendant of the vindicatory effect of the previous defamation proceedings and in particular the Baker v Hemming Judgment.

Paragraphs 14 and 15 are denied. The Defendant denies that the words complained of, in the meanings contended for by the Defendant, bore any meaning defamatory of the Claimant:

It is denied that the mere mention by the Defendant in answer to a question during the long interview of the fact that Ms Baker had made an allegation that she was abused as a child by the Claimant (albeit a very serious allegation), in circumstances when the Defendant made it clear that the Claimant denied the allegation, when the Claimant’s denial of the allegation was extremely widely known, and the Defendant stated that she did not know the truth of the allegation and was not seeking to make any allegation herself;, is sufficient to have a tendency to cause harm or satisfy the statutory threshold of seriousness pursuant to s.1 of the Defamation Act 2013;

ia. S.1 must be interpreted in accordance with Article 10 of the European Convention on Human Rights. This requires, inter alia, that politicians must show a greater degree of tolerance as to any potential damage to their reputation than private citizens, especially in respect of reports of allegations made by third parties: see, eg, Olafsson v Iceland, ECHR case no. 58493/13, (2018) 67 E.H.R.R. 19.

Paragraphs 8, 9, 10, 11, 13, 14 and 16 above are repeated;

The Defendant published the words complained of to 3 people whilst the interview took place on 3 November 2019: Mr Attwood, his cameraman and an audio engineer;

The imputation contended for by the Defendant falls short of asserting that the Claimant has behaved in such a way as to bring suspicion on himself or to provoke the need for an investigation;

All of the matters referred to in the words complained of were already in the public domain, including having been published in far more disparaging terms and on websites with far greater prominence, such that anyone with any interest in or importance to the Claimant already knew of them. Paragraphs 19(i) (ii), (iii), (v), (vii) and (viii) below areis repeated; each of those matters were widely reported in the media. The Claimant also spoke to the media about these matters on several occasions, emphasising his innocence, for example in an interview with the Daily Mail and MailOnline (the world’s most popular news website) published on 22 June 2018. The Claimant is put to strict proof of the precise alleged harm resulting from the words complained of published to 3 people, given, in particular, the above matters already known to anyone with any interest in or significance to the Claimant, and that the Defendant was not suggesting she had any new information about the truth of the allegations.rather than from any other publications;.

Conveying information about threats of legal action, whether to protect reputation or otherwise, is highly unlikely to cause people to think less of the Claimant;

The Claimant is put to proof that he had a good reputation, particularly insofar as his sex life was concerned;

Paragraphs 16 and 17 are not admitted;

Paragraph 18 is not admitted. Further:

For the avoidance of doubt, if the Court rules in favour of the Claimant’s pleaded meanings, it is admitted that the meanings contended for by the Claimant both have a tendency to cause harm and satisfy the statutory threshold of seriousness pursuant to s.1 of the Defamation Act 2013, subject to the defences pleaded herein. The extent of any alleged harm and the cause of it is not admitted.

Secondly, section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.

and he continued

Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.

that people in public life must show a greater degree of tolerance as to potential damage to their reputation (see Article 10 of the European Convention of Human Rights, and Olafsson v Iceland ECHR case no. 58493/13, (2018) 67 EHRR 19);

that all of the matters referred to in the words complained of were already in the public domain, and in any event would have been familiar to people with an interest in such matters (perhaps themselves the only likely viewers of the Video) - see the observations of Warby J (as he then was) in both Economou v de Freitas [2017] EMLR 4 at paragraph [77, 83-85, 90-91] and in Alexander-Theodotou v Kounis [2019] EWHC 956 at paragraphs [67 - 68]; and more recently, with explicit reference to causation of "serious harm", by Knowles J in Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB), at paragraph [361] (to which Mr Munden has drawn my attention since the hearing, and in respect of which both counsel have provided written submissions);

that at the time of the interview on 3 November 2019, the decision in Baker v Hemming dated 5 November 2019 had not yet been handed down (the Defendant says that she did not in fact learn of it until February 2020).

I accept Mr Munden's submission that such matters are proper to be taken into account when considering serious harm. Whilst I recognise Mr Hodson's observation that these cases are not authority for the proposition that no inference of serious harm can be drawn, the question of whether or not such an inference should be drawn here is one for the trial judge, not least because it will depend upon the exact meaning of the words, as determined at trial. (The Defendant acknowledges that if - but only if - the Claimant succeeds on either meaning in full, then "serious harm" follows.)

Further or alternatively, if and insofar as the words conveyed the natural and ordinary meaning that:

Like the Defendant, Ms Baker has been subjected to trolling and stalking, although both their allegations against the stalker were thrown out of Court and it later transpired he was offered a role on the Child Abuse Inquiry, which must have been very difficult for Ms Baker if she is a victim of child abuse as she alleges; and

The Claimant has threatened the Defendant with legal action to protect his reputation over her refusal to remove her documentary, PIP, from online;

then the Defendant has a defence in the meaning contended for by the Defendant as set out above, pursuant to s.2 of the Defamation Act 2013, as the words are substantially true. If necessary, the Defendant will rely on s.2(3) of the Defamation Act 2013.

PARTICULARS OF TRUTH

In or around May 2015, Ms Baker made allegations that she had been raped and sexually abused as a child by a Member of Parliament. She initially made her allegations on Sky News, which was reported by other major news channels soon afterwards (including the BBC and the Guardian). The Herald referred to her as a “victim” who was “speaking out” about a “VIP paedophile ring”, an article which remains online to date: https://www.heraldscotland.com/news/13499895.victimspeaks-out-about-britains-vip-paedophile-ring-the-rich-and-powerful-knew-i-wasbeing-abused/;

During her interview, Ms Baker told Sky News of how police officers would stand guard for the perpetrators and on some occasions even joined in the abuse in woodland on Cannock Chase in Staffordshire. From the age of six, Ms Baker said she was taken to be abused by different men on Cannock Chase, at various properties around Staffordshire and beyond;

She told Sky News that she was taking part in the interview with them in the hope of finding other victims or the police officers who were involved;

At the time, Ms Baker received ongoing support from the Lantern Project in Merseyside, who work with survivors of sexual abuse;

In or around 2015, Ms Baker gave the name of one politician to the police and a detailed account of the years of abuse she said she had suffered;

The police investigated Ms Baker’s allegations. They interviewed the Claimant. No charges were brought against the Claimant;

In or around 5 September 2017, the Claimant published a statement online declaring that he was the Member of Parliament that Ms Baker was referring to in her allegations to the media, but that he denied those allegations;

On 14 September 2017, an application was made by Ms Baker for core participant status in the Independent Inquiry into Child Sexual Abuse (“IICSA”). On 16 January 2018, Professor Alexis Jay OBE, Chair of the Inquiry, concluded that Ms Baker should be designated as a core participant. During this Inquiry, Ms Baker expressed that she felt that her allegations had not been taken seriously or properly examined by the police. At around the same time, Ms Baker’s friends also conveyed this information to the Defendant. In around November 2019, the IICSA published that many of Ms Baker’s allegations about institutional failings since 2015 involve allegations that the Claimant had interfered with the proper investigation of her claims;

In or around 2013, the Defendant began researching for a documentary that she would later title PIP. She published PIP on 2 August 2018. Her intention was to create a publication that would reflect allegations and investigations of child abuse in Parliamentary and Establishment circles over the past four decades. Given the extensive media interest in Ms Baker’s allegations, her involvement in the IICSA and the fact that the Claimant had put his identity in the public domain as the accused, the Defendant included details of both Ms Baker’s and the Claimant’s version of events in the PIP documentary;

Following its publication, on 2 August 2018, the Claimant wrote to the Defendant, threatening her with legal action if she did not remove PIP from online. The Defendant responded the same day by stating that it represented a fair piece of journalism. The Defendant offered the Claimant the opportunity to take part in a follow-on interview to be published alongside PIP. He declined. The Defendant declined to remove PIP from online. In or around December 2020, PIP was removed from online;

In May 2016, the Defendant, during the course of a police investigation into her stalking allegations, was asked by the police to provide a witness statement. In it, she detailed the extensive online and offline attacks she had endured from approximately 2012 to 2016. It started following the Jimmy Saville revelations in 2012, after she began interviewing former care home children on issues of abuse;

The Defendant was the victim of ‘gang stalking’ by internet trolls including Mr Darren Laverty. Their attacks totalled thousands of tweets/blogs/social media posts about her, many of which contained abuse, threats and harassment. The police detective investigating on behalf of the Defendant advised prosecuting the worst offender, who was, at the time, Mr Laverty. In or around December 2016, he was also charged with harassing Ms Baker in a similar manner. During this period, the Defendant and Ms Baker shared their experiences of being stalked and harassed;

The CPS dropped the charges against Mr Laverty. The Defendant was advised by the CPS that there was insufficient evidence to secure a prosecution. He had failed to provide his twitter login details and twitter had failed to provide them on his behalf;

In or around May 2017, Mr Laverty claimed that he had been given core participant status in the IICSA. In 2017 or 2018, Mr Laverty gave evidence to the IICSA;

The entirety of the Counterclaim pleaded below is repeated and relied upon.

I read this as addressing introductory sub-paragraph (i) to Meaning 1, and introductory sub-paragraph (ii) to Meaning 2. I deal with these separately.

Further or alternatively, in so far as the said words made or contained the following comment or expression of opinion:

The Defendant is aware of, but does not know the truth of, Ms Baker’s allegation of sexual abuse against the Claimant;

After the Defendant’s and Ms Baker’s stalking case was unsuccessful at Court and the person they had accused was given a role in the IICSA, it must have been very difficult for Ms Baker, if she is a victim of child abuse as she alleges.

The Defendant contends that, pursuant to s.3 of the Defamation Act 2013, the words were a statement of opinion.

PARTICULARS OF OPINION

The bases of the opinions were made clear because:

The opinions were honestly held by the Defendant. In particular:

Where a defendant relies on the defence under section 3 of the Defamation Act 2013 that the statement complained of was a statement of honest opinion, they must—

specify the imputation they seek to defend as honest opinion; and

set out the facts and matters relied on in support of their case that—

Further or alternatively, the words complained of were or formed part of, statements on a

matter of public interest and/or were protected by an occasion of qualified privilege.

PARTICULARS OF PUBLIC INTEREST

The interview and, in particular, the words complained of, were about matters of public and general concern and interest. In particular, but without prejudice to the generality of the foregoing:

It was justifiable to include the words complained of in the article because growing concern of a parliamentary and Establishment cover up regarding child abuse was highly topical at the time, both in the mainstream media and on the parliamentary agenda itself. This was the very reason the IICSA was launched;

The information obtained by the Defendant was of a high quality. The Defendant began investigating allegations of historic child abuse in the British Establishment following the Jimmy Savile revelations in 2012. She was very well researched. She had the first-hand experience of being ‘trolled’ as a result of it. The Defendant worked as much as possible with original sources, including interviews with police, politicians, parliamentary assistants, judges, intelligence agents, survivors of child abuse and their families;

The words complained of therefore were a matter of public interest. Paragraph 19 and 21 above are repeated;

In the circumstances, the tone of the Defendant was measured and responsible. The words complained of were spoken pursuant to s.4 of the Defamation Act 2013 and/or the Defendant had a moral/social duty to convey them and the public at large had a corresponding legitimate interest in receiving the information.

"I would consider a belief to be reasonable for the purposes of section 4 only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case"

He goes on in paragraph 73 to raise a number of points which he contends shows that she cannot have had a reasonable belief that this was in the public interest, because of the many exculpatory and qualifying points which she failed to raise.

Section 4 requires the court to have regard to all the circumstances of the case when determining the

all-important question arising under s.4(1)(b): it says the court must have regard to all the circumstances of the case in determining whether the defendant has shown that he or she reasonably believed that publishing the statement complained of was in the public interest. In my judgment, all the circumstances of the case must include the sort of factors carefully identified by the judge, including, importantly, the particular role of the defendant in question. The statute could have made reference to the Reynolds factors in this connection, but it did not do so. That is not to say however, that the matters identified in the non-exhaustive checklist may not be relevant to the outcome of a public interest defence, or that, on the facts of the individual case, the failure to comply with one or some of the factors, may not tell decisively against a defendant. However, even under the Reynolds regime, as Lord Nicholls made clear, the weight to be given to those factors, and any other relevant factors, would vary from case to case. As with Reynolds therefore, with its emphasis on practicality and flexibility, all will depend on the facts.

I do not consider either that the Defendant has no real prospect of successfully relying on this line of defence, or that it falls to be struck out.

Further or alternatively, the Defendant has breached the Claimant’s right to data protection as set out in Article 8 of the EU Charter of Fundamental Rights (‘the Charter’); General Data Protection Regulation (EU) 2016/679 (‘GDPR’); and the Data Protection Act 2018 (‘the DPA’).

Paragraphs 3 to 18 and subparagraphs thereof, above, are repeated. The Publication constituted the Claimant’s personal data pursuant to Article 4(1) of the GDPR (‘the Personal Data’), which by publishing those publications the Defendant processed unlawfully.

The following sets of operations (together ‘the Processing’) constituted processing of the Personal Data within the meaning of Article 4(2) of the GDPR:

At all material times the Defendant was the data controller within the meaning of Article 4(7) GDPR in respect of each of these processing operations. Further or alternatively she was the data processor.

To the extent that the Allegations relate to (alleged) criminal offences, the Personal Data constitute special category data as per section 10 of the Data Protection Act 2018 and Article 10 GDPR, for which the Defendant had no exemption under any of Parts 1, 2 or 3 of Schedule 1 Data Protection Act 2018.

By the Processing of the Personal Data the Defendant acted in breach of Article 8(2) of the Charter as well as her statutory duty pursuant to Articles 5 and 10 of the GDPR to process the Personal Data in accordance with the data protection principles, and in particular:

The generic assertion at paragraph 19 is embarrassing for want of particularity.

As to paragraph 20, it is admitted that the words spoken constituted the Claimant’s personal data. It is denied that the Defendant was a ‘processor’ pursuant to Article 4(2) of the General Data Protection Regulation (EU) 2016/679 (“GDPR”). Paragraphs 8, 9 and 13 above are repeated.

As to paragraph 21, it is denied that the Defendant was a processor. As a matter of law, her actions as already pleaded fell squarely outside of the Article 4(2) GDPR definition. In particular, but without prejudice to the generality of the foregoing:

Paragraph 22 is denied. The Defendant did not determine the purposes and means of any processing, contrary to the Article 4(7) GDPR. Paragraphs 8, 9, 13 and 24 above are repeated. The Claimant fails to plead which ‘processing operations’ he is referring to.

Paragraph 23 is denied. The Claimant has failed to plead which of the words complained of related to allegations of criminal offences and therefore allegedly constituted special category data pursuant to s.10 of the Data Protection Act 2018 (“the 2018 Act”).

Alternatively, if (which is denied) the Defendant is found to have been a processor and/or controller (of special category data or otherwise), it is denied that the Defendant has acted in breach of statutory duty, whether as alleged in paragraph 23 or at all.

The Defendant will rely on the exemption arising from Article 85(2) GDPR (for reasons of freedom of expression and information) implemented into paragraph 26, Schedule 2 of the 2018 Act. The Defendant’s actions fell within the ‘special purpose’ of journalism pursuant to exemption 26(1)(a) and were accordingly exempt from Article 10 GDPR because the criteria in exemption 26(2)(a) and (b), 26(3), 26(4) and 26(9) applied. Paragraph 22 above is repeated.

In the further alternative, any such processing met the requirement in Article 10 GDPR because conditions contained within Parts 2 and 3 of Schedule 1 of the 2018 Act apply:

For the reasons pleaded at paragraphs 23 to 30 above, paragraph 24 to 29 are denied in their entirety. Because the Claimant has failed to specify what the act(s) of processing and controlling are alleged to be, the pleading is embarrassing for want of particularity. In any event, pursuant to paragraph 26, Schedule 2 of the 2018 Act, the Defendant has at all material times been exempt from the provisions of the GDPR relied upon by the Claimant. In the circumstances, even had the Defendant been the processor and/or controller at the (unspecified) time(s), the application of Articles 5 and 10 of the GDPR would have been incompatible with the Defendant’s special purpose.

PARTICULARS OF EXEMPTION

The Defendant was at all material times acting in a professional capacity in her occupation as a journalist;

The Defendant was being interviewed about her work involving people associated with Parliament or the establishment generally, such as Prince Andrew, Jeffrey Epstein and Jimmy Savile, and allegations of inappropriate behaviour, including sexual abuse, made against them. During the interview, the Defendant emphasised the importance of alleged victims feeling they could come forward with their allegations;

The Defendant was asked about the allegations made by Ms Baker against the Claimant. The Defendant explained that allegations of sexual abuse had been made against the Claimant which were, in fact, disputed by the Claimant, and that she was not passing judgment as to the truth or falsity of those allegations;

The Defendant explained that Ms Baker had been subjected to stalking and trolling since making her allegations. She likened it to threats and harassment she had also been subjected to for reporting about such issues;

All of the above matters were already in the public domain;

In the premises:

At all material times, the Defendant reasonably believed that her answers to the questions she was asked would be in the public interest;

The Defendant complied with Article 5(1)(a) of the GDPR in that processing was lawful under Article 6(1)(e) and/or (f), being necessary for the legitimate interests of the Defendant as a journalist acting in the public interest which were not overridden by the fundamental rights or freedoms of the Claimant as a data subject; and

The Defendant’s conduct as set out above was compliant with Clause 1 of the Independent Press Standards Organisation’s Code of Practice, and, further, Clause 2, qualified as that clause is by the clause permitting publication of private (or in this case, public) matters in the public interest.

Further, as to paragraph 29, it is denied that the Claimant’s Letter Before Action dated 19 August 2020 alleged unlawful processing. The Claimant chose not to pursue any allegation in data protection law in his Letter Before Action dated 19 August 2020.

is paragraph 23 of the Defence correct in contending that paragraph 19 of the Particulars of Claim is "embarrassing for want of particularity"?

was the Defendant a "controller" and/or a "processor" of the Claimant's personal data within Articles 4(7) and 4(2) respectively of the GDPR, by creating and contributing towards the Video in relation to the Claimant and/or by retaining his personal data on her computer systems (including smartphone(s)) and/or by "other personal use of the Personal Data" by her?

if so, of what precise personal data was the Defendant a processor?

to what extent (if any) did the Defendant refer to (alleged) criminal offences, so as to render the Personal Data special category data for the purposes of section 10 of the DPA and Article 10 of the GDPR and accordingly excluded from exemption under any of parts 1, 2 and 3 of Schedule 1 to the DPA?

does the Defendant's case that she is entitled to rely on exemptions in Schedule 1 to the DPA (which is attached to section 10 of the DPA, which in effect provides for exemption, or "authorisation", if certain conditions spelled out in Schedule 1 are met) have a real prospect of success?

I consider each of these points in turn.

‘personal data’ means any information relating to an identified or identifiable natural person ...

processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

....

‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law;

‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

The definitions of these words in the material part of the DPA are to the same effect.

"information which— (a) is being processed by means of equipment operating automatically in response to instructions given for that purpose, (b) is recorded with the intention that it should be processed by means of such equipment, (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, or (d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; …”.

The previous Council Directive (which the DPA 1998 implemented) provided that

“This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system.”

Thus, the framework and definitions being considered in Scott were not identical to those which now apply.

61 I agree with the LGBT Foundation’s submission that a verbal disclosure does not

constitute the processing of personal data, and thus cannot give rise to a claim under the DPA.

62 In response to the LGBT Foundation’s submissions, and as I understood his argument, Mr Scott sought to argue that the material was, in effect, “stored” in Ms Lambe’s mind with a view or intention to it being put into an automated record/filing system in due course, and therefore it was “data” as defined in the DPA. I reject that submission. It does not fit within the DPA scheme.

63 I should also add that I can quite see the force of Mr Scott’s point (made in his written arguments and orally) that it may seem unfair that oral onward disclosure of the private information which he first orally provided to the LGBT Foundation is not prohibited. But that is not what the DPA is concerned with: it is a very specific scheme based around records and processing.

the underlying principle that data protection is "based around records and processing" continues to hold, and that the reference to "operations" supports that analysis, and

the list of activities in Article 4(2) indicates ways in which "operations" may be carried out, but does not in itself stipulate that doing one of those activities is necessarily or inherently an "operation" so as to constitute "processing".

I do not consider that the contention that any conversational disclosure of "personal data", whether recorded or not, and whether broadcast or not, amounts to an "operation" is one which is so obviously correct - particularly in a developing area of law - that it can attract a summary judgment (or for that matter a strike-out of its denial).

the special purpose" of journalism so as to be entitled to the exemption set out in Article 85(2) of the GDPR (paragraph 26 of Schedule 2 to the DPA),

the special interest provision of journalism "in connection with unlawful acts and dishonesty etc" (paragraph 13 of Schedule1); and,

paragraph 32 of Schedule 1, concerning "Additional conditions relating to criminal convictions etc", which provides that "this condition is met if the processing relates to personal data which is manifestly made public by the data subject".

Schedule 1, annexed by section 10, deals with exemptions in relation to (alleged) criminal acts; and schedule 2, annexed by section 5, contains general exemptions.

26(1) In this paragraph, “the special purposes” means one or more of the following—

Sub-paragraph (3) applies to the processing of personal data carried out for the special purposes if—

The listed GDPR provisions do not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible with the special purposes.

In determining whether publication would be in the public interest the controller must take into account the special importance of the public interest in the freedom of expression and information.

She also relies on paragraph 26(9), the effect of which is to confirm the exemption from provisions as to processing when any of the "special purposes" applies.

the purpose of the interview was a journalistic one (and although in his Reply the Claimant merely acknowledges in paragraph 6 that the Defendant "purports to be a journalist", and sets out in paragraph 73 detailed criticisms of her professional practices, I cannot definitively conclude on a summary judgment application that she was not one);

this interview was being carried out with a view to publication of journalistic material - effectively, one journalist interviewing another; or

the Defendant believed that the publication of the material would be in the public interest. Again, the Claimant contends that any such belief was not a reasonable one, and relies in paragraph 80 of his Reply on the matters set out in paragraphs 62 - 74. I have dealt with this contention in paragraphs 81 and 82 above.

But on this last point, it must be noted that the reasonable belief must be that of the "controller": here, the Claimant alleges that the Defendant was the "controller" (or "joint data controller with Mr Attwood" (para 92 of Mr Hodson's skeleton argument), although the Defendant denies this. But to get this far, the Claimant needs to have shown that the Defendant was at least a processor, and possibly a controller. (It may be that if it was Mr Attwood alone who was the "controller" for these purposes, then it would have to be his belief as to public interest that was reasonably held in relation to the publication of the Video.)

carried out for the purposes of journalism;

carried out with a view to the publication of that data; and

necessary for reasons of substantial public interest, in circumstances where the controller reasonably believes that publication of the personal data would be in the public interest.

As to paragraph 30 of the Defence, as to (ii) it is denied. The personal data was not manifestly put into the public domain by the Claimant, who did not ‘out’ himself. It was put into the public domain by others and the Claimant was forced to respond.

The Claimant had not named himself to the public at large before 5 September 2017. The police had kept him nominally anonymous, but there had been considerable stress and jigsaw identification, for example by the journalist David Hencke referring to the anonymous accused (the Claimant) as being a Liberal Democrat MP, aged 55, a Birmingham politician and musician. In a television piece on Welt Spiegel on broadcast on 16 August 2016 the Claimant was identified as a Birmingham politician by the broadcaster. The Claimant had been subject to harassment and death threats as a result of the allegations, for example by Declan Canning who was later convicted.

As a result, by the time the Claimant commented his identity was already in the public domain, on the internet and in the death threats he received.

was party to the publication of a podcast on 15 October 2020 by the Third Party (under the name "Matthew Hopkins, Witchfinder General") entitled "Episode 8 - Brand New Tube's Data Protection Breaches, Muhammad Butt and Sonia Poulton " ("the Episode 8 Video"). The Claimant admits this (Reply and Defence to Counterclaim paragraph 134). She complains that the podcast refers to the Claimant's libel action against the Defendant, asserts that the Defendant had "been making extreme statements about people for years. Whilst we are committed, of course, to only using legal means to deal with her...it may be that others will be less law-abiding”, and contained other threatening material - sub-paragraph (viii);

re-tweeted the Episode 8 Video to the Defendant on 16 October 2020, so as to re-publish it to a far greater audience - sub-paragraph (x);

sent an email to the Defendant on 20 October 2020, telling her that she was under police investigation for many offences, including malicious communications over her "apparent attempt to procure the murder of a law graduate who is assisting as my lay advisor" (meaning the Third Party) and suggested she remove certain tweets and retweets about him, adding that the Third Party had also "opened up legal correspondence with YouTube’s legal team about the existence of your two channels”. The Defendant regarded this as showing that the Claimant and the Third Party were working together (which she had not known) and were seeking to threaten her "wellbeing, livelihood and liberty" - sub-paragraph (xiii);

acted in concert with the Third Party and the Fourth Party to "vex and harass the Defendant under the guise of “legal correspondence” or “news articles” about the vast amounts of litigation they each generate. They blur the line between litigation and acts which by themselves constitute harassment. They create rather than report news. They pass information amongst themselves in relation to these proceedings and their respective legal proceedings, primarily to Mr Smith to publicise online. He will then publish the updates in a menacing manner, to pressurise and bully the Defendant into submission to each of the spurious allegations currently being litigated by each of them". A number of examples are given, but the one that is particularly striking is in an email of 5 November 2020 from the Claimant to the Defendant's then solicitor Mr O'Donnell, referred to in sub-sub-paragraphs (xiv) e. and f.:

“You should also not assume that Mr Smith is to be taken lightly… Mr Smith is also a Conservative Party member and has some influence with various senior MPs. Mr Smith restored Mr Shapps career by having him exonerated of smearing cabinet colleague on YouTube. I believe your behaviour is making him concerned about your suitability as a candidate – I know you have Parliamentary ambitions so best not to be too closely associated with maniacal anti-Semites and conspiracy theorists”

and suggesting that if the Defendant’s solicitor was acting on a reduced rate or pro bono “the court is likely to conclude you are an interested funder and liable for the costs." - sub-paragraph (xiv);

Discrete points raised for strike-out purposes

The Claimant in paragraphs 7 to 11 of his witness statement of 23 January 2021 raises some additional procedural points about the Defence and Counterclaim with which I should deal:

Conclusion

the Claimant's application for summary judgment is refused;

the Claimant's application for strike-out of the Defence and Counterclaim is refused, save to the limited extent of striking out

the Defendant's application to amend is successful, save that the proposed new introductory sub-paragraph (i) of paragraph 19 is disallowed.

Deputy Master Bard

11 June 2021 (revised 15 June 2021)