Monir v Wood

On 7 May 2015, there was a general election in the United Kingdom. One of the parties fielding candidates for election was the United Kingdom Independence Party (“UKIP”). Like most political parties, UKIP had local branches. One of those branches was Bristol UKIP. It had a Twitter account - @BristolUKIP – which was used for campaigning. At 20.42 on 4 May 2015, a Tweet was posted on the Bristol UKIP Twitter account

The 4 May Tweet was actually written, and posted on Twitter, by John Langley, the Vice Chairman of Bristol UKIP branch.

Mr Monir is not a taxi driver, and no one suggests that he had been involved in any “child grooming”. The allegation was false. Mr Monir has brought these proceedings against Stephen Wood, the then Chairman of the Bristol UKIP branch, contending that he was libelled in the 4 May Tweet and that Mr Wood is legally responsible for it. When the Claim Form was issued, Mr Langley was named as a defendant. However, Mr Monir chose not to serve the proceedings on Mr Langley. Mr Wood therefore faces the claim on his own. It has become clear during the trial that Mr Wood feels very strongly that it is unjust that he should have been sued rather than Mr Langley, the author of the 4 May Tweet.

Mr Monir was born in Rotherham in 1979 and has lived there all his life. His father achieved some prominence in the Rotherham area for his charity and community work and was awarded an MBE in June 2001 for his work. Mr Monir has been active in local politics. He is a supporter of the Labour party and campaigned for Ms Champion when she was first elected as an MP in 2012. His support continued after that election and he was considering standing himself in local elections. He had been successful in gaining a place on the Labour Party’s ‘Future Candidates Programme’ and had attended a training weekend in November 2013 and a further training course in September 2015.

In terms of employment, Mr Monir has spent his career in various community engagement and training roles. He has also been involved in charity and voluntary community work in Rotherham.

Mr Wood was born, and has lived most of his life, in Bristol. He spent 5 years serving as a police officer with Avon & Somerset Constabulary before leaving to work as a private investigator. In 1995, Mr Wood became a certified bailiff. In 2003, Mr Wood decided to concentrate on enforcement work and he set up his own business, Able Investigations. Able’s business grew steadily and now has some 12 full-time and 15 part-time employees. Mr Wood has been a bailiff for over 24 years. Outside of this work, Mr Wood has become a student and affiliate of the Chartered Institute of Legal Executives and he is working towards his associateship and diploma in law and practice. Mr Wood has also volunteered as a mentor for the charity, MIND.

Mr Wood started to take an interest in politics in 2010 and became a supporter of UKIP. He joined the Bristol UKIP branch in 2011, becoming Chairman of the branch in February 2013.

The Bristol branch of UKIP was staffed entirely by volunteers. It owned no premises. It was an ad hoc group of people who shared a common interest in and support of UKIP. At the end of July 2014, it had a membership of around 115 and over 500 supporters. At one point in his cross-examination, Mr Wood described the Bristol UKIP branch as follows:

“It was a group of volunteers that I ran. We were a group of volunteers. There is no business activity there. We were not an agency. Nobody got paid. Nobody got expenses. If somebody didn’t turn up to a meeting, yes, we got a bit narky, but I couldn’t sack them for it. We had no contractual agreements and, therefore, I cannot be held responsible for somebody putting something on [Twitter]. With the greatest of respect to John [Langley], who is sat in this court, if John had posted these I didn’t know about it. Why am I being held responsible for somebody else’s actions?”

That perhaps neatly encapsulates Mr Wood’s objection to (and sense of injustice of) being alleged to be responsible for the 4 May Tweet.

The national party had a Constitution and Rules of Procedure. No reference has been made to the Constitution, but it is common ground that the members of the Bristol UKIP branch were bound by the Rules of Procedure. So far as material, the Rules of Procedure provided:

Mr Wood was elected Chairman of Bristol UKIP branch in February 2013. He stood as the UKIP candidate for the Bristol South Constituency at the general election on 7 May 2015.

Michael Frost became a member of the Bristol UKIP branch in 2013, joining when Mr Wood was Chairman. He was the first to achieve electoral success for the branch when he was elected as a local councillor for the Hengrove Ward in Bristol on 22 May 2014.

Mr Langley was the Vice-Chairman of the Bristol UKIP branch. He had also assumed the role of unpaid assistant to Mr Frost following his election as a local councillor in May 2014. In that role, he maintained a Twitter account for Mr Frost (@TheFrostReport) (“The Frost Report”) as a means by which Mr Frost could keep in touch with constituents in his Ward.

In his evidence, Mr Wood stated that, when he became Chairman, he made it known that he was keen on developing Bristol UKIP’s web and social media presence as a way of increasing the profile of Bristol UKIP. The branch’s website was registered in Mr Wood’s name because, he said, he had purchased the domain name in 2013 and donated it to the branch. The domain also hosted the branch’s email accounts.

The Bristol UKIP Facebook account was set up on 18 March 2013. In his evidence, Mr Wood did not recall whether he personally had set up the account or whether someone else had done so using his email address. He was one of the administrators of the account. The documentary evidence strongly supports the conclusion that Mr Wood did set up the account himself.

The Bristol UKIP Twitter account was set up on 1 April 2013. Mr Wood’s email address was registered to the account. Although not the subject of formal evidence, I think I can take judicial notice of the basic operations of a Twitter account. A Twitter account holder can gain access to his/her account via a web browser by visiting www.twitter.com and entering his/her account name (@forexample) and the account password that s/he would have selected when the account was created. An account holder who has forgotten his/her password can reset the password by clicking on a link. After identifying the relevant account, s/he can choose to have a link to reset his/her password sent to the email address registered on the account. If the user follows the instructions in the email, then s/he can create a new password for the account.

In his Defence, Mr Wood stated that the Twitter account had been “set up, managed, edited and used exclusively by Mr Langley”, but in his witness statement Mr Wood stated that he could not remember who had set up the account. In his affidavit, Mr Langley stated that, to the best of his recollection, he had set up the Twitter account and had made the passwords available to certain committee members to enable them to post material if he was not available. Mr Wood was cross-examined on the evidence which showed that his email address had been given when the Twitter account was created. Mr Wood initially stated that he could not remember who had set up the account and that it might possibly have been set up by Mervyn Laxton. Later he accepted that he had set up the account. It certainly appears clear that Mr Langley’s recollection that he set up the account is not correct. There is a posting on the UKIP Facebook page on 1 April 2013 from Mr Wood announcing that Bristol UKIP now had a Twitter account, and providing a link to it. Mr Wood also accepted that he had embedded a link to the Twitter feed on the homepage of the Bristol UKIP website.

The evidence of Mr Wood, Mr Langley and Paul Turner (who joined in 2013, became a committee member of Bristol UKIP branch from 2014, stood for election as an MP in 2015 and latterly became its Treasurer) is that committee members of Bristol UKIP were given the login details of the Twitter account for administrative access. Mr Turner stated in his statement: “we were only given access as we were Committee members and may need to access the Twitter account if ever needed”. Mr Turner stated the he had never logged into the Twitter account. There is no evidence that any of the other committee members utilised the access they had been given to the Twitter account.

Initially, responsibility for the branch’s social media output appears to have been given to Alan Thomas. However, in a post on the Bristol UKIP branch Facebook account on 28 August 2013, Mr Wood informed members of the branch that Mr Thomas had had to step down and that there was a vacancy for a “social media secretary who is willing to take over the running of Facebook and the twitter accounts, keeping the UKIP name and brand out there”. He solicited volunteers for the post. The minutes of the meeting on 5 September 2013 similarly record that the branch was looking for someone to run the Twitter and Facebook pages. The search for the social media secretary was apparently on-going in January 2014 as Mr Wood is noted in the minutes of the meeting on 13 January 2014 as still looking to fill the post. Another call for volunteers was made at the AGM on 14 February 2014. Mr Wood stated that, before January 2014, the post of social media secretary had been filled by David Hancock and Peter Brown, but neither stayed in post for long as both were unable to devote the necessary time to it.

In his witness statement, Mr Wood says Mr Langley had become the branch’s “sole publicist” at some point in 2014 and that “control of the Branch’s Twitter and Facebook

In his Defence, Mr Wood stated that the branch Twitter account was used “exclusively” by Mr Langley and, in his witness statement, he stated and that it had been agreed that

Other witnesses, relied upon by Mr Wood, described Mr Langley’s role in relation to the branch’s social media accounts.

At the meeting on 3 January 2015, Mr Wood said that the branch needed a campaign manager. He thought that Mr Langley would be suitable for the role. It was also thought that a support manager was needed. Mr Frost recommended Mr Langley for the post because “he is a great wordsmith and administrator and, more importantly, he has time on his hands.” The issue of social media was discussed, in the context of a suggestion by Mr Wood that candidates standing for election should create their own Facebook accounts. He noted that the head office of UKIP had warned against using social media accounts, but Mr Wood thought that, providing people were careful what was posted, there should not be a problem. Mr Langley arrived late to the meeting. Mr Frost recapped that Mr Langley might make a good candidates’ support manager. Mr Langley said that he thought that the role was similar to that of a media manager and he was happy to do that.

Mr Wood chaired the AGM of Bristol UKIP branch on 4 February 2015. The branch was looking for 6-7 candidates for the local elections to be held in May 2015. The prospective UKIP parliamentary candidate for Bristol South had withdrawn and Mr Wood had been chosen as the replacement. The three other UKIP candidates were James McMurray for Bristol East, Paul Turner for Bristol West and Mr Frost for Bristol North-West. The minutes suggest that the mood of the meeting was upbeat and much

There was a candidates’ meeting on 17 February 2015. It was attended by Mr Wood, Mr Langley, Mr Frost and Mr McMurray together with the local election UKIP candidates. The purpose of the meeting was to talk about strategy and to allow the candidates to meet each other. Mr Langley was standing for election in the Stockwood Ward in Bristol. The minutes record Mr Wood having stated:

“What’s needed to be done [in the campaign] is to remind [the voters] why we are there. They are very community orientated and we need to remind them of Rotherham and the fact that it was Labour at the heart of it. We need to remind them that it’s Labour that started selling off the NHS. We did very well last year in the elections.”

The reference to Rotherham was to the child sexual exploitation scandal and the fact that the Council was controlled by Labour when it took place.

In posting on the branch’s social media accounts, Mr Langley was, as a member of UKIP, bound by the Rules of Procedure including the obligation to ensure that any post was “compliant with Party policy, electoral law, the publishing requirements of the Electoral Commission, the Advertising Standards code of practice and the law relating to defamation” (Rule J.2.6 – see [9(vi)] above). He also received direct instructions from Mr Wood.

Mr Wood accepted that the branch had no formal guide or rules for posting on social media, but he was firm in his evidence that he made it clear to all members of the branch, including Mr Langley, that they should not post anything on social media that was offensive, inappropriate, libellous or racist. He said that he initially told Mr Langley “not to post anything on social media in the Branch’s name without [his] consent”, although he said that it was quickly realised that a requirement of prior approval was impractical.

I accept Mr Wood’s evidence about the instructions he gave to members of UKIP Bristol. He would not tolerate racism and said that he had a “strong desire to eradicate racism from the party”. Examples of the instructions that he gave to members of Bristol UKIP are:

When he gave evidence at trial, Mr Wood stated:

“I made it plainly clear, no racist attacks, xenophobic attacks, no homophobic attacks, no attacks personally. I made it perfectly clear, every single meeting, this was to be a clean ship. I detest dirty politics… If you look at my campaign, my campaign was inclusive. There is nothing in my campaign which is racist, homophobic, xenophobic at all…”

I accept that evidence. Mr Wood, in this respect, appeared to me to be both genuine and sincere. His evidence is, as I have noted, consistent with the contemporary documents and is also supported by other witnesses: Mr Frost, Ms Couzens and Mr Fear all gave evidence that Mr Wood had made clear how he expected members to conduct themselves.

The instruction had clearly been understood by Mr Langley (although I deal below with the extent to which he observed it). In his evidence, he said:

“I was asked to exercise care in what I published on Facebook and Twitter and not to post anything which might harm UKIP’s interests or might be unlawful. In addition, when [Mr Wood] became Chairman, [he] made it clear to all members

(including me) that he would not tolerate any form of racism or xenophobia within Bristol UKIP… [Mr Wood] kept telling members (me included) that he wanted a clean-up within the Bristol UKIP when he became Chairman… [and] kept telling members (me included) that he did not want any member to make personal attacks on any individuals and that he wanted a clean fight in the next General Election. I understood these branch-wide house rules…” When re-examined Mr Langley said:

“… there was a general guidance not to publish anything which is racist or too contentious, very vague guidelines, but it was very much, I think, I was left to my own devices to decide what was appropriate and what wasn’t.”

Mr Santos cross-examined both Mr Wood and Mr Langley about some of the latter’s postings on Bristol UKIP’s social media channels in the run up to the 4 May Tweet. Entirely consistent with his views as to the unacceptability of racism, Mr Wood was visibly discomforted by being taken through some of Mr Langley’s Tweets and posts; some he described as “abominable”. Mr Langley, on the other hand, seemed positively to enjoy the experience, describing himself as a “maverick”. It was not impressive.

I need to set out some of the Tweets posted by Mr Langley on the UKIP Bristol Twitter account because Mr Santos submits that they demonstrate, first, that Mr Langley was disregarding Mr Wood’s instruction not to post material that was racist, and second that Mr Langley was nevertheless acting in accordance with the instruction to highlight the Rotherham child abuse scandal and connect that with the Labour Party.

It is important to note that these Tweets appeared with others that dealt with many other issues and attacked other political parties and politicians. Many were retweets of material from other third parties, including UK newspapers. Nevertheless, I accept Mr Santos’ submission that some of the posts were clearly racist and, overall, there was a distinct theme linking Muslims and the Labour Party with the Rotherham abuse scandal.

Mr Santos also submits that the Bristol UKIP Twitter output was the campaigning platform of Mr Wood. He points to the frequent appearance of Tweets promoting Mr Wood. When he was cross-examined, Mr Wood was reluctant to accept that the account was being used as his personal campaigning account. He said that the Twitter account was promoting all the UKIP candidates but accepted that the account was being used by others to campaign on his behalf. Certainly, the Bristol UKIP Twitter account sent out a large number of Tweets promoting Mr Wood’s candidacy:

As to his personal activities on Twitter, and particularly his use of the Bristol UKIP Twitter account, in his witness statement Mr Wood stated that he did not recall posting any Tweets on the Bristol UKIP Twitter account “at any time”. He explained (in paragraph 38 of his witness statement):

“I do not recall posting any tweets via the Branch’s Twitter account at any time. While I am familiar with Facebook, which I use for Able’s business marketing, I do not know much at all technically about how to use Twitter. I would need to be taught or have it demonstrated to me. I do not use Twitter and was not able to monitor the Branch’s Twitter account. I did not have the Twitter app installed on my phone or computer or other device.”

During cross-examination, Mr Wood initially confirmed that this was an accurate statement of his knowledge of and activity on Twitter. However, Mr Santos’ crossexamination of Mr Wood on various Tweets from the Twitter accounts of both Bristol UKIP and Able Investigations has left me unable to accept Mr Wood’s portrayal of himself as a Twitter ingénu. On the contrary, although perhaps not an habitual user, the evidence satisfies me that Mr Wood was familiar with Twitter, had significant experience of the platform and, contrary to the impression given in his witness statement, he was perfectly capable of using (and did use) Twitter.

Mr Santos relies upon this as part of Mr Monir’s case that, contrary to his denial, Mr Wood did have a sufficiently active and direct involvement with the Bristol UKIP account to render him liable for the publication of the 4 May Tweet. But it is also has a bearing on the credibility of Mr Wood’s evidence as a whole.

At this point, I can state my findings of fact on the evidence about the operation of the Bristol UKIP Twitter account:

Mr Langley had agreed, at the January 2015 meeting, that he would collect the necessary nomination papers from each candidate and submit them before the deadline. In the period of February to March 2015, Mr Wood lost confidence in Mr Langley.

Mr Langley had again forgotten to bring the candidate nomination papers to the meeting, but promised to bring them in to Mr Wood’s office the following day. He did not do so, and it took three further attempts before Mr Langley finally provided the necessary nomination papers. Even then, it was discovered that they had been completed incorrectly. Much effort was required to get the forms completed correctly and lodged in time. Mr Wood was concerned that “all hard work would have been for naught simply because John was exhibiting juvenile and unexpected behaviour”.

At perhaps an inopportune moment in the midst of campaigning, on 9 April 2015 an article appeared in Mail Online concerning Mr Langley: “Ukip candidate exposed as a PORN STAR called ‘Johnny Rockard’ but insists: ‘It’s no big deal’”. The article gave details of Mr Langley’s career in the adult entertainment industry but also quoted a spokesman of UKIP saying that the party was aware of Mr Langley’s “sideline as a porn star and adult film producer” when he first stood as a candidate and that he was not doing anything illegal.

The story was picked up by other newspapers and Mr Wood said it “spread through the press like wildfire”. Mr Langley gave interviews to BBC News and the Independent. Mr Wood gave an interview to the Independent defending Mr Langley and was quoted in the headline of the resulting article on 10 April 2015: “As long as it’s not kids and animals, it gets my vote”. In his witness statement, Mr Wood said, “the Independent attributed me as saying ‘at least [John] is not a paedophile’. I did not make this statement and would have been mad to have done so a month before a general election that I was standing in.”

More unwelcome publicity about Mr Langley was to follow. In his witness statement, Mr Wood explained:

“… around 9 April 2015, the Branch learned through the press that John had also made a sex video with a University of the West of England student on campus and a sex video of John engaging in oral sex with her at Castle Park, Bristol. UWE were up in arms about the video filmed on their campus without their consent. The Committee members at the Branch were furious. What goes on behind closed doors between consulting adults is one thing, but making a porn film in public where there were possibly children and young people around was not acceptable.

Inevitably the media approached John about both sex videos. John engaged with them without agreeing with the Branch what he might say. This I felt represented a risk to any success which we might achieve. He was enjoying the notoriety too much, I sensed. Consequently, I sent John an email stating that the Branch was unhappy and concerned with his actions. In it, I asked him not to make any public statements and told him that he was not to do any more media interviews…

John seemed to like the limelight and took no notice of the Branch’s request. Contrary to our request, John agreed to do TV and newspapers interviews. It became clear that John loved the attention. I did not move to try to sack or remove John then, as for practical reasons the General Election was almost upon us and I felt there was no time to attend to something like that. All the time he was producing election output, and the immediate run-up to an election is considered critical, as many decide how to vote at the last minute. It was however clear that collectively the Branch would need to look at John’s position after the election was out of the way, as he risked bringing us into disrepute.”

Bristol UKIP branch had a meeting on 23 April 2015. Mr Wood encouraged people to continue campaigning, but insisted that this should not denigrate opponents. Mr Langley did not attend the meeting and there appears to have been no discussion of the publicity concerning him.

Mr Wood’s hope that he could postpone dealing with Mr Langley until after the election did not go to plan. At the end of April 2015, some 10 days before the election, Mr Langley posted racially offensive material on the Frost Report (“the Frost Report Incident”). Mr Frost explained in his evidence:

“I had just come home from a Council meeting when I decided to log onto

@TheFrostReport at about 11.45pm and check what had been uploaded that day… [T]o my absolute dismay, I saw several verses from the Quran and a tirade of abuse toward followers of Islam. The post, I remember, mentioned 72 virgins with a number of other comments which appeared to be broadly anti-Islamic. I was in little doubt that this represented the kind of material which would cast UKIP in a bad light and would only set us back…”

Mr Frost immediately contacted Mr Langley. Mr Langley said that he did not see anything wrong with the material he had posted but Mr Frost demanded that it be removed, which it was. Mr Frost believed that, as it had only been online for around 12-15 minutes late at night, few people would have seen it and so he decided to “let the matter rest”. He did, however, inform Mr Wood. Mr Wood’s evidence was that Mr Frost had told him about the incident and that Mr Langley had removed the material reluctantly, believing that “he was only posting the truth”. Mr Wood telephoned Mr Langley:

“I reprimanded John telling him that this was not the sort of thing I expected to come from him. The publicity which he had so far brought about had been sexrelated, and nothing had suggested that he had anti-Islamic beliefs. I warned John specifically that he was never to post any type of material like this again. I also asked John whether he had any recent problems and whether he had taken his eye off the ball. I also told John that although the Branch had defended his choice of adult entertainment work, I thought what he did in his personal life was beginning to bring Bristol UKIP into disrepute. This included the student sex video and his erratic behaviour with his younger girlfriend. The reply I receive from John was a verbal torrent of abuse back at me…”

When cross-examined about this part of his statement, Mr Santos put it to Mr Wood that “by this point, it should have been absolutely clear to you that Mr Langley should not have been representing the branch?” Mr Wood answered: “At that point, I will agree with you”, but added that, at the time, he had many other issues to deal with. The cross-examination continued:

Mr Santos put to Mr Wood that, as the election approached, his concerns about Mr Langley’s erratic behaviour were at “fever pitch”. Mr Wood agreed, adding: “but what you have to remember is I was running an election, running a business, looking after an ill daughter, and trying to do everything I possibly could.” There was then this exchange:

In his affidavit, Mr Langley does not refer to any of the incidents that had given rise to these concerns. On the contrary, he said, simply:

“To the best of my recollection, there were no problems with my management of the Bristol UKIP Facebook and Twitter accounts… I believe the Committee trusted me and my experience of using social media to communicate the party’s message nationwide in a proper way.”

This is one of a number of peculiarities in Mr Langley’s affidavit, to which I shall return below ([70]-[72]).

In my judgment, Mr Langley’s claim that there were “no problems” with the Bristol UKIP Facebook and Twitter accounts was, at best, misleading in its omission of any reference to the Frost Report Incident. A more reliable insight into the thinking at the time is to be found in the minutes of two meetings of the Bristol UKIP Committee held after the election.

I find that, by the end of April 2015, Mr Wood (and Mr Frost) had lost confidence in Mr Langley as a result of his unreliability and increasingly erratic behaviour. Mr Wood was fully aware of the incident of the racist posting on The Frost Report and the sex video involving Mr Langley. He recognised that there was a clear risk that Mr Langley could bring Bristol UKIP into further disrepute. Nevertheless, Mr Wood decided not to relieve Mr Langley of responsibility for the output of the Bristol UKIP Twitter and Facebook accounts. Although Mr Wood denied it, I am satisfied that this decision was clearly born of political expediency. The election, in which Mr Wood was a candidate, was looming. Mr Wood was worried about further damaging press coverage of Mr Langley’s antics but did not want to lose his social media and campaigning services. He was therefore prepared to tolerate whatever risk Mr Langley’s erratic behaviour presented and chose to postpone dealing with matters until after the election. I do not accept that the reason for not removing Mr Langley was because Mr Wood was too busy with other matters. Mr Langley’s ability to post via the Bristol UKIP Twitter account could have been deactivated in a matter of moments (as subsequently it was). Mr Wood would have been acting well within the UKIP Rules of Procedure had he done so.

I deal with the publication (and re-publication) of the 4 May Tweet below ([117(ix)][128]).

Mr Monir received a telephone call from a friend, Shakoor Adalat, in the evening of 4 May 2015. Mr Adalat told Mr Monir that he had received “a disturbing picture of [him] being labelled a paedophile” (see [126(i)] below). It was this call that first alerted Mr Monir to the 4 May Tweet. Mr Adalat sent Mr Monir a copy of the Tweet via WhatsApp.

Mr Monir’s evidence was that, once he had seen the 4 May Tweet, he tried to find out who was responsible for it. He carried out a Google search, and discovered Mr Wood’s name as the “main man” in Bristol UKIP. He found an election leaflet of Mr Wood’s on the Internet and that included his mobile telephone number. In his first witness statement, Mr Monir said that he called this mobile number in the evening of 6 May 2015. He said that he did not use his own mobile telephone to make the call as he did not want Mr Wood to know his number. He used a separate mobile phone which his

Mr Monir stated that he got through to Mr Wood when he called. He said that he spoke calmly and clearly and told Mr Wood that he was calling about the Bristol UKIP Twitter account and that he, Mr Monir, was the person in the photograph on the left next to Sarah Champion MP and that the Tweet had accused him of being a paedophile. Mr Monir said that he told Mr Wood that he was from Rotherham and asked him to remove the Tweet from Twitter. Mr Wood, he claimed, told him to “piss off” and put the phone down.

Telephone records of calls from Mr Monir’s landline have been obtained and disclosed. No records are available for the mobile telephone because it was a pay-as-you-go.

In his second witness statement, made after disclosure of telephone records and a transcript of a call he made to the police on 8 May 2015, Mr Monir said that he may have been mistaken about making the call on 6 May 2015.

Mr Wood’s position is that he was not aware of the 4 May Tweet until he was contacted by a police officer from South Yorkshire Police (“SYP”) on 1 June 2015 (see [63]-[69] below). Mr Wood accepts that there was a call, which he now believes was from Mr Monir, but his account of the call is very different. Mr Wood has given several accounts of the call, so I need to set out what he has said on each occasion.

After the final call, Mr Wood stated that he made inquiries, including with members of the Bristol UKIP branch, about whether they knew anything about these accusations or to what they related. No one could help him, he claimed.

Mr Wood explained in his witness statement that he had just finished a high-profile eviction of some protesters in Bristol on or around 6 May 2015 and his name appeared

“all over the Internet and local press”. He said that it was easy for the protesters to know that he was the managing director of Able and that, as a result of the eviction, local activists had listed on a website his name, home address and telephone number asking people to ‘get him’.

As noted already, Mr Monir telephoned the police on 8 May 2015. The call was recorded by the police. I have listened to the recording and a transcript has been prepared for the trial. Mr Monir reported the 4 May Tweet and similar posts about him on Facebook and that the material online was “wrong”. The police told Mr Monir that it was a civil matter and suggested he should speak to a solicitor. During the call, Mr Monir said that he had called the Bristol UKIP office and they had “hung up”. As noted above, the call lasted 15 minutes ([56(i)(d)]).

On 12 May 2015, the TellMama group reported the Tweet as hate crime to SYP. The matter was assigned to PC (now Sergeant) Adam Wood on 22 May 2015. On 1 June

PS Wood located the 4 May Tweet online. Having attempted – but failed – to contact Bristol UKIP by telephone, PS Wood sent an email, at 09.44 on 1 June 2015. Mr Wood was one of the recipients of the email. The officer said that he was investigating a report of a hate incident relating to Bristol UKIP’s Twitter account and requested that the 4 May Tweet be removed.

Fortuitously, as a result of Mr Wood serving a witness summons on PS Wood to attend trial to give evidence, PS Wood carried out a search of his emails and discovered further email exchanges with Mr Wood on 1 June 2015. PS Wood was due to give evidence on 18 April 2018. The day before, as it happened when Mr Wood was giving evidence, PS Wood forwarded to Mr Wood’s solicitors the emails he had located:

“I have just returned to Sheffield after working in Coventry today, and due to set off to London shortly. I wanted to make you aware that just prior to me leaving I have double checked my emails and came across one that I was not aware of or had forgotten. It relates to a reply from Mr Steve Wood which is fairly pertinent to the case. I have only just discovered it now but wanted to bring it to your attention. I have printed off a hard copy to bring with me.”

These emails showed that Mr Wood had responded to PS Wood’s email on 1 June 2015 at 11.18. He said that he had tried to call the officer, but he was engaged. Mr Wood provided his mobile telephone number. In his witness statement, PS Wood stated that he then telephoned Mr Wood using the number that he had provided. Mr Wood confirmed that he had read PS Wood’s email and there was a discussion over whether the 4 May Tweet was a hate crime.

In his witness statement, Mr Wood described the call he had with PS Wood:

“When I spoke to PC Wood, he explained that there was a picture, which had been placed on Twitter by Branch which the Police were investigating as a hate crime… PC Wood further explained that the post called 2 persons, who were standing next to an MP, paedophiles. My first reaction was ‘what picture?’. PC Wood then directed me to the link on his email. During the call with PC Wood, Mr Monir’s name was not mentioned. No requests were made by PC Wood save for his request that the referred tweet should be deleted… [W]hilst on the phone with PC Wood, I logged on to the Twitter account, having looked up my original administrator access, and looked for the post. I found the post and saw the picture and read the text with it. I finally understood why the Tweet was being complained about and got around to delete it whilst PC Wood was still on the phone with me…

During the call, I did not form the link that someone had made threatening calls to me because of the tweet. It was only after I put the phone down that the penny dropped that the ravings and threats I had received in the anonymous withheld calls must have been the same matter…”

PS Wood made a contemporaneous note of the conversation with Mr Wood in the Log (“the Log Entry”):

“I have contacted the Bristol UKIP Chairman Steve Wood… asking for the offensive Tweet to be removed, which has now been done. I have been told that the Vice-Chair [name redacted, but clearly Mr Langley] was suspected to be responsible for the post, but has since been sacked from the party on 18 May, due to posting 5 other offensive posts and a separate act of party gross misconduct… Steve Wood stated that a male phoned him 3 weeks ago, being abusive on the phone demanding the Tweet be taken down, although he hung up before he could find out who it was. Mr Wood believed that all the offensive Tweets were removed until being informed by myself.”

PS Wood’s evidence at trial varied, in some limited respects, with the account recorded in the Log. This I ascribe to the natural difficulty of recalling events that took place nearly 3 years earlier. I will rely upon the facts set out in the contemporaneous entry in the Log as this is much more likely to be a reliable record of the facts.

That same day, following the call, Mr Wood sent a further email to PS Wood at 16.50 (“the 1 June Email”). This is a very significant document, as it captures, contemporaneously, Mr Wood’s account of what had happened:

“Thank you for your email, firstly I can confirm that the post has been taken down from twitter. If I may introduce myself, I am Steve Wood, the Chairman of the Bristol Branch of UKIP. Up until 18th May the Bristol Branch Twitter account was run by the Vice chair of the branch, during the run up to the elections the VC started to act inappropriately by posting number of Tweets which the committee deemed to be unsuitable for publication these we immediately removed and his access blocked. I regret to say that I missed this one, however a week after the election the VC was removed from his post and a complaint has gone into to National office applying to have his membership cancelled, we are awaiting a decision on that one.

However, that being said I am not sure who your complainant is, but if it is one of the males in the picture this could have been dealt with in a quicker manner. I received two calls from a male who stated that his photo was on our Twitter account, I asked what photo and who I was taking to, the male refused to give his name and stated that I should “Fucking Know” what photo he was talking about, it was also said that If I refused to remove it he would come down to Bristol to sort me out. On the second occasion that the male phoned, I again received a torrent of verbal abuse, informing me that if the photo did not come down he would take my Fucking head off. Once again I asked him what photo (I don’t do twitter so rarely on it) to which I again received further abuse, at this stage I will admit to putting the phone down. On both occasions the phone number was withheld, therefore I was unable to identify the caller, or assist further.

The VC Chair has been removed from his post and banned for having any interaction with party activities in Bristol or nationally, we trust that this is sufficient to put a stop to any further line of enquiry. As for me I made no report of these incidents as I receive threats quite regularly working in the sector that I do, so its water off a ducks back. Had the person responded to me with the details, and no verbal abuse or threats to my personal safety, I would have worked with them to clear this matter up within minutes

Just one question if I may, I note that your email related to a Hate Crime, as far as I can see and having checked up with 2015 Blackstone's, the photo nor text made no reference to any persons nationality or religion, it also stated “Suspected” So how can it be referred to as a hate crime.

Thanks for your time in this matter and if I can help further please do not hesitate to contact me.

Regards

Steve”

Mr Langley, in his affidavit, gave a strikingly different account of the deletion of the 4 May Tweet. He stated that he had received a call from Mr Wood telling him that he had been alerted by the police to the 4 May Tweet and had received death threats in consequence. Mr Langley claimed that Mr Wood told him to take down the 4 May Tweet, but that he had refused to do so. Mr Langley’s evidence was:

“… I told the Defendant that he could ‘stuff it’, that I would not follow his instruction, and that if someone wanted to put up a battle, I would be happy to put up a battle with them. I do not know what the Defendant then went on to do about taking the tweet down.”

Some of the contents of Mr Langley’s affidavit – and what was done with it – give rise to concern. The affidavit was sworn by Mr Langley on 10 October 2016.

Mr Langley’s evidence was materially different from Mr Wood’s evidence about how the 4 May Tweet came to be deleted. Mr Wood’s account was that he had deleted the 4 May Tweet, on 1 June 2015, whilst he was on the telephone with PS Wood. Mr Langley claimed that Mr Wood had asked Mr Langley to delete it, but he refused.

Mr Santos cross-examined Mr Wood about this. Mr Wood confirmed that he had seen and approved the letter of 17 November 2016 and also accepted that Mr Langley’s evidence on this point in his affidavit was inaccurate. Asked why he was prepared to rely upon evidence he did not consider was accurate, Mr Wood stated that it was “John’s version of events”. That was a surprising answer. Mr Wood could hardly have failed to appreciate that Mr Langley’s affidavit was being submitted as evidence supporting his case and, indeed, to try and persuade Mr Monir to reappraise the strength of his claim. It was inappropriate, to say the least, for Mr Wood to allow this affidavit to be relied upon when it contained evidence upon which Mr Wood would not rely and, indeed, would contradict. Mr Wood must also have realised that Mr Langley’s claim, in the affidavit, that his operation of the Bristol UKIP social media accounts had been ‘trouble-free’ (see [49]) was also not true, yet he was also content for that to be deployed to encourage Mr Monir to compromise his claim.

It is convenient here to state my assessment of Mr Wood as a witness. Mr Wood certainly appeared intelligent and articulate. He is forthright and confident. In parts of his evidence he demonstrated stubbornness – even intransigence – in refusing to accept obvious points. My clear impression is that Mr Wood does not like his authority being challenged. His role as a bailiff means that he frequently encounters people who do challenge his authority, even to the point of personal abuse and threats of violence. In his evidence, he described his attitude to this as “water off a duck’s back”. He feels very strongly that he ought not to be held liable for the publication of the 4 May Tweet and that he has done nothing wrong. That conviction, together with his stubbornness and self-confidence, has led him to have adopted an uncompromising approach to Mr Monir’s claim.

Assessing the documentary evidence now available together with Mr Wood’s and Mr Monir’s evidence at trial, I can state my findings of fact as follows:

An important issue when I come to consider whether Mr Wood is liable for the publication of the 4 May Tweet on the Byrne -v- Deane basis, is when did Mr Wood first see the 4 May Tweet. I am quite satisfied that, following the complaint by Mr Monir, Mr Wood had been effectively put on notice of the details about the 4 May Tweet set out in [75(ii)] above. But Byrne -v- Deane liability is about ratification (see below [175]), so precisely what Mr Wood knew about the publication is very important.

Mr Santos has submitted that following the material call(s) between Mr Monir and Mr Wood, the latter had all the necessary ingredients at his disposal to identify and remove the 4 May Tweet, and yet chose not to do so. He suggests this explains why Mr Wood was able quickly to identify and delete the 4 May Tweet during the call with PS Wood on 1 June 2015.

Certainly, I accept that Mr Wood was clearly dismissive of Mr Monir’s complaint. This is consistent with (and supportive of) my conclusion as to Mr Wood’s attitude generally (see [74] above). It would have taken a matter of moments – as subsequently it did – to locate the 4 May Tweet. In substance, PS Wood was merely providing the same details to Mr Wood that Mr Monir himself had provided previously. Mr Santos relies on the fact that, in the 1 June Email, Mr Wood told PS Wood that “during the run up to the elections”, he (and others) had removed “unsuitable” Tweets by Mr Langley but that Mr Wood had “missed that one”, referring to the 4 May Tweet. The reference to unsuitable Tweets may well have embraced the Frost Report Incident, but the reference was to Tweets (plural).

If what Mr Wood said in his call with PS Wood and the 1 June Email is taken at face value, there is evidence which suggests strongly that Mr Wood must have found the 4 May Tweet earlier than on 1 June 2015. However, I have reached the conclusion that Mr Wood was not giving PS Wood an accurate account of what had happened. He was, in material respects, trying to convince the officer that he and UKIP Bristol had more of a grip on the situation then actually was the case. Mr Wood was doing this, in my judgment, to try and reduce the risk of PS Wood taking the matter further: in Mr Wood’s own words “sufficient to put a stop to any further line of inquiry” ([69] above). If he could persuade PS Wood that the matter was being dealt with firmly by UKIP Bristol, greater was the likelihood (as Mr Wood assessed it) that PS Wood would take no further action. The false or misleading parts of what Mr Wood told PS Wood were: (1) that Mr Langley had already been sacked; (2) that his access to social media accounts had already been blocked; and (3) that unsuitable Tweets had already been located and deleted, but that Mr Wood had “missed” the 4 May Tweet. I consider that the true position was that neither UKIP Bristol nor Mr Wood had any real knowledge of the full extent of Mr Langley’s racist postings. There had been no combing of the Twitter account to remove any such posts (see [75(viii)] above). Had there been, Mr Wood could not have failed to have found the 4 May Tweet. Mr Santos urges that, for that

My assessment of the evidence, however, leads me to the conclusion that Mr Wood did not carry out a review of Mr Langley’s Tweets. Either he had failed to appreciate the seriousness of Mr Monir’s complaint, or (more likely) he did not care. Mr Wood did nothing to investigate it until he was contacted by PS Wood. I am satisfied, on the basis of my assessment of Mr Wood’s genuine attitude towards negative and/or racist campaigning (see [38(ix)] above), that had he found the 4 May Tweet at any stage after it was posted, he would have deleted it. He did not delete it prior to 1 June 2015 because it was only then that he first focused on it and took the matter seriously after PS Wood’s intervention. In what I regard to be a telling – and truthful answer – Mr Wood told Mr Santos, when cross-examined: “I wish I’d found it. I really do”.

Mr Wood may be open to criticism on a number of bases for his reaction to Mr Monir’s complaint and for not having discovered the 4 May Tweet earlier. Certainly, Mr Wood knew that, on or around 8 May 2015, he had received a complaint about a Tweet on the Bristol UKIP Twitter account that had called someone a paedophile, but I am not satisfied that Mr Wood focused on the precise terms of the 4 May Tweet until he found it when he was on the phone with PS Wood on 1 June 2015.

The parties are agreed that the issues for determination are:

There is no dispute as to the principles the Court must apply when determining meaning:

Mr Santos submits that the meaning of the 4 May Tweet is plain from its wording. The words “child grooming taxi drivers” contain no ambiguity whatsoever. The natural and ordinary meaning of the words is that Mr Monir was a paedophile who was guilty of child-grooming.

He contends that the Court should reject Mr Wood’s assertion that the 4 May Tweet meant only that “there were grounds to suspect” that Mr Monir had unlawfully groomed children for sex because this does not reflect the words used in the Tweet. He argues that there is no equivocation in the 4 May Tweet; the text identifies Mr Monir as a child groomer. It is put forward as the reason why voters should not vote for the Labour party. The 4 May Tweet would not make sense if the allegation was merely at a Chase Level 2.

Mr Santos emphasises the principle from Jeynes that the Court should not be overelaborate in its analysis.

Mr Hirst submits that the meaning ascribed by Mr Monir is overly simplistic, ignores the information that the taxi drivers were “suspended” and overlooks the nuance in the word “grooming”.

He argues that the ordinary reasonable reader would understand that a person is “suspended” whilst an allegation made against him is being investigated. If the allegation was that the men in the photograph were guilty, a reasonable reader would expect the word “suspended” either to be omitted entirely or replaced with “jailed” or “convicted” or similar word.

Mr Hirst submits that “grooming” means that someone, usually a minor, is being prepared for a sexual encounter. It does not have to be with the person doing the grooming. It is an important fact, he argues, that in the words complained of the groomers were expressly identified as taxi drivers. He contends that it was well-known, from the Rotherham child sexual exploitation scandal, that taxi drivers ferried children to people who abused them. “Child grooming”, in context, means no more than that, he argues. To infer that the person doing the grooming was also the person engaging in the unlawful sexual act is to jump to a conclusion which the words do not bear.

It is very important when assessing the meaning of a Tweet not to be over-analytical. Twitter is a fast-moving medium. People will tend to scroll through messages relatively quickly. Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.

In terms of the Chase level, if analysed closely (which is not the right approach), the 4 May Tweet does have something of a contradiction within it. Mr Hirst is right that the usual connotation of a suspension is that a judgment on the alleged wrongdoing has not yet been reached. There are some professions or jobs in which a suspension can be imposed as a sanction, but use in that sense will usually be clear from the context. Against that, the allegation is clearly that the two men in the photograph are “child groomers”, not that they are suspected of being so or are under investigation. There is also a disconnect between the gravity of the conduct alleged and what has been done about it. Suspension from operating as a taxi driver is an unusual response to child sexual abuse. Finally, the conduct of the two men is being clearly put forward as a reason why readers of the Tweet should not vote Labour in the election. That connotes actual wrong-doing rather than grounds to suspect or investigate. Balancing these factors, and avoiding over-analysis, I consider that the 4 May Tweet would be understood as alleging that the two men were guilty of “child-grooming”.

Child-grooming would be readily understood as the sexual abuse of children. Mr Hirst is strictly correct when he submits that child-grooming is the pre-cursor to actual abuse, and it may or may not be successful. He is also right to say that the grooming may be carried out by someone other than the ultimate abuser. But these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this.

I reject Mr Hirst’s submissions as to common knowledge about taxi drivers being involved in transporting victims of sexual abuse. First, I have no evidential basis on which to make a finding that this was common knowledge, but more importantly, this is to attribute a meaning to “taxi drivers” that, in context, it cannot bear. It is a forced construction that only emerges as a product of significant over-analysis.

In context, I am satisfied that the ordinary reasonable reader would understand the 4 May Tweet to mean that the two men were involved in the sexual abuse of children. I do not consider that, in the context of the 4 May Tweet, the ordinary reasonable reader would reach a precise conclusion as to the nature of the men’s involvement.

To be actionable, words in a publication that are alleged to be defamatory must refer to the claimant. If s/he is not named, reference to the claimant can be intrinsic – i.e. from the words themselves (e.g. X’s father is a thief) – and/or established by the proof of extrinsic facts, knowledge of which would cause a reasonable reader to understand the words to refer to the claimant: Economou -v- De Freitas [2017] EMLR 4 [9].

Understanding the law relating to reference must start with the appreciation of the fundamental principle that the test is objective. The question is whether the hypothetical ordinary reasonable reader (if necessary, attributing knowledge of particular extrinsic facts) would understand the words to refer to the claimant: Morgan -v- Odhams Press Ltd [1971] 1 WLR 1239, 1243B, 1245B, per Lord Reid; 1261E-F per Lord Guest; and 1264A per Lord Donovan. In assessing this, the Court adopts the same approach as to the determination of meaning: 1245G per Lord Reid.

That being the rule, it might be thought that inclusion of a photograph of the claimant as the person being referred to in the publication satisfied the requirement, but the majority of the Court of Appeal in Dwek -v- Macmillan Publishers Limited [2000] EMLR 284 held that, if a claimant is not named in the matter complained of, s/he must establish that the words (and photograph) were published to people who were able to identify him/her as the person in the photograph (see May LJ at p.291 approving Hunt J in Barbaro -v- Amalgamated Television Services [1985] 1 NSWLR 30).

Sedley LJ, doubted this conclusion (pp.294-295):

“I would not be prepared, without at least fuller argument than has been appropriate today, to adopt the proposition derived by Hunt J. from earlier Australian authority in the case of Barbaro -v- Amalgamated Television Services that there is a difference of principle between the identification of a claimant by publishing his name and by publishing his picture; a difference such that in the latter case he must be able to give particulars of persons who have identified him before he can be said to have a sustainable case that the publication referred to him. I can see at present no logical or factual distinction between the two. Identification by appearance can, it seems to me, be at least as potent and as direct as identification by name. Either, in a particular case, may be sufficiently plain to fall for no elaboration by particulars or by evidence. Either, by contrast, may require pleading and proof of extrinsic facts to establish that publication was of and concerning the claimant.”

Sedley LJ was there referring to the well-established general rule that when the claimant is named in a defamatory publication: “the question is not whether anyone did identify the claimant but whether persons who were acquainted with the claimant could identify him from the words used” (§7.3 Gatley, 10^th edition). The general rule is subject to exceptions. The authors of Gatley give the example of a defamatory publication that names “John Smith”. Not every “John Smith” can bring a claim. Where a common name is included in a publication, the name alone will not suffice to identify any individual who bears that name. The context in which the name appears, coupled with the name may, however, do so: Jameel -v- Dow Jones & Co. Inc. [2005] QB 946 [45].

Paradoxically, on the issue of reference, a photograph is more likely to identify a particular individual than a common name. For example, if a Twitter user with millions of followers Tweeted a photograph of Elton John together with a defamatory statement, it would be questionable for the law to treat that case differently from one where his name, rather than a photograph, had been used. The position becomes even more stark if, in the example, the Tweet referred to “Reg Dwight”. How many more people would identify Elton John from a photograph than from his birth-name? Like Sedley LJ, I am doubtful that it is right to draw a distinction between publication of the name of the claimant and publication of his/her photograph. I agree with the authors of Duncan & Neill on Defamation (§7.12, 4^th edition) that “there is no special rule in respect of visual identification and that the question in every case is whether reasonable readers would reasonably understand the statement to refer to the claimant” and that, relying upon Jameel, “it is an oversimplification to say that, merely because a claimant’s name is used in the statement complained of, reference will be established without more”. The answer, I suggest, is that, while the legal test is clear ([95]), proving reference (whether by name or by photograph or by other extrinsic facts) is a highly fact-sensitive exercise that does not admit of bright-line rules.

A claimant seeking to establish that the hypothetical ordinary reasonable reader would have understood words in a defamatory publication to refer to him/her, may rely upon evidence in three main categories:

Given that the test is objective, the question might legitimately be posed why evidence in categories (ii) and (iii) is relevant and admissible. In Economou, Warby J observed [11]:

“Some suggest that there is subjective element, in the sense that a claimant has to prove that there were people who did in fact understand the words to refer to him. I do not believe this is the law: see Lachaux -v- Independent Print Ltd [2016]

QB 402 [15] and Undre -v- Harrow LBC [2016] EWHC 931 (QB) [24]-[26], [31]. In Baturina -v- Times Newspapers Ltd [2011] 1 WLR 1526 the majority expressed the view that such evidence was not even admissible: see [56] (Sedley LJ) and [57] (Hooper LJ). This was obiter, but consistent with the view I take as to the objective nature of the test…”

The short answer to the admissibility of this evidence is because, notwithstanding the principled (but obiter) remarks in Baturina, the authorities cited in (ii) and (iii) have established that it is. Unlike the issue of meaning (where such evidence has been clearly held to be irrelevant and inadmissible) such evidence is admissible in relation to reference, but it is not determinative. It is advanced by a claimant on the basis that the Court is invited to accept the evidence as a reliable indicator that the hypothetical ordinary reasonable reader would have understood the words to refer to the claimant. But this is subject to two points:

Another important principle flows from the fact that the test is objective: it is immaterial, on the issue of liability, that people who were able to identify the claimant as the subject of the libel did not believe the allegations made against him/her to be true. Such evidence is relevant only to damages (and, following the coming into force of s.1 Defamation Act 2013, to the issue of serious harm): Morgan -v- Odhams Press Ltd (p.1246D-F per Lord Reid; p. 1252D-F per Lord Morris).

Mr Hirst submits that, where the publication relied upon includes a photograph of a claimant but s/he is not named, the extrinsic facts the claimant must establish are known to publishees are (1) what the claimant looks like; and (2) “knowledge of facts to connect him with the defamatory statement so that it applies to him”. That is unnecessarily to complicate matters. All that is required is proof that the 4 May Tweet was published to individuals who were able to recognise the claimant from the photograph.

Relying upon Budu -v- BBC [2010] EWHC 616 at [39]-[43], Mr Hirst also submits that, as Mr Monir has not identified the people who had knowledge of the “extrinsic facts”, his claim fails on pleading grounds. I reject this, both as a matter of principle and on the evidence in this case.

On the evidence, Mr Hirst submits that Mr Monir’s case depends upon his proving that there were readers of the 4 May Tweet who could identify Mr Monir from the photograph and who “held the belief, as a matter of fact, that [he] was both a taxi driver and suspected of child-grooming (otherwise they did not have a state of knowledge to 'connect the libel with the claimant')”. This leads him to the submission that, as the identification evidence relied upon by Mr Monir includes people who knew him very well, they would know that he was not a taxi-driver and would therefore have not understood the words in the 4 May Tweet to refer to him.

A fundamental heresy lurks at the heart of that submission. I accept that, when assessing reference, the Court must consider any pieces of evidence which might tend to negative the conclusion that the ordinary reasonable reader would understand the words as referring to the claimant (Morgan -v- Odhams Press Ltd p.1252D-E per Lord Morris). Even if some publishees recognised Mr Monir from the photograph and knew that he was not a taxi-driver, it does not follow that the words of the 4 May Tweet did not refer to him. The test is objective, and it is impossible to say that every reader of the 4 May Tweet, who recognised Mr Monir from the photograph, would know that he was not a taxi-driver (and it is also irrelevant – on the issue of reference – if knowledge of that fact caused them not to believe the allegation in the 4 May Tweet).

In Dwek, for example, the claimant was wrongly identified in a photograph together with text which the claimant contended referred to him bore the meaning that he “consorted and had sex with a well-known prostitute”. May LJ summarised the argument advanced by one of the defendants (which has similarities to Mr Hirst’s argument in this case):

“If a reader recognised the claimant, he or she would simply conclude that there had been a mistake; that the obvious intention was to refer to Dodi Fayed and the inclusion of a photograph of the claimant was just a pure mistake, taking the matter nowhere. It is said that reference to Dr Dwek can only be achieved by innuendo, that is to say by relying by relying on additional special facts to the effect that identified individuals in fact recognised the photograph as being that of the claimant and did not appreciate that there was a mistake.”

The position in Dwek was different from Mr Monir’s case. The caption to the photograph read: “Fantasies. Louise ‘Michaels’ was a prostitute who befriended Dodi (left in the photograph) at ‘Tramp’ and was thereafter seen at 60 Park Lane.” The person who appeared to the left in the photograph was Dr Dwek not Mr Fayed. That was an important piece of evidence that tended to negative the conclusion that the ordinary reasonable reader would understand the words as referring to Dr Dwek. It was relevant to that assessment because it was intrinsic to the publication: the hypothetical reasonable reader (who, for these purposes, was assumed to be able to recognise Dr Dwek from the photograph) would be taken also to have read the caption. Nevertheless, the Court of Appeal held that; (a) the text was still capable of referring to the claimant and that the issue whether it did would have to be resolved by the jury at

Before stating my conclusions on the issue of reference, I need to examine the evidence about the publication, and republication, of the 4 May Tweet and make findings about the extent of its publication and republication.

I gratefully adopt Warby J’s description of “How Twitter Works” from the Appendix to his judgment in Monroe -v- Hopkins [2017] EMLR 16. For the purposes of this case, to that summary I would add the following:

The Twitter analytics data is unavailable for the 4 May Tweet because it was deleted on 1 June 2015 (see [75(vii)] above). In default of the analytics data, Mr Wood’s solicitor, Paul Wong, has set out evidence as to publication (and his analysis of it) in his witness statement. Of the followers of the Bristol UKIP Twitter account, based upon information from each user’s profile or other information in the account, he assessed 144 came from Bristol and the West Country; 27 from the North-West of England; 12 from the North-East; 56 from the South-East; 15 from Wales; 27 in the Midlands and 18 from Yorkshire. Some 208 followers, Mr Wong identified as being Twitter accounts of other UKIP branches, members, councillors, MEPs or candidates. One of these was UKIP Yorkshire Dales. 28 accounts appeared to be registered to users outside the UK.

On 13 December 2016 and on 29-30 March 2017, using the Bristol UKIP Twitter account, Mr Wong Tweeted a photograph of Mr Monir with the question whether people who followed Bristol UKIP recognised him. That was followed, between 4 April to 15 May 2017, with individual direct messages being sent to each of the Bristol UKIP Twitter followers asking whether they recognised Mr Monir from the photograph and whether s/he had retweeted the 4 May Tweet. 61 accounts responded. All indicated that s/he did not recognise Mr Monir. A handful of respondents were able to identify MP Sarah Champion. By August 2017, around 10% of the Bristol UKIP Twitter followers had replied. The balance did not respond.

In August 2017, Mr Wong sent a further Tweet to 95 of the Bristol UKIP Twitter followers who he had identified as either providing no details as to their location or who he identified as being based in Yorkshire. 10 people responded to Mr Wong’s further message. Some of these identified where they lived, but none was from Yorkshire.

One of the complicating factors in this case is that the 4 May Tweet did not stand in isolation. At around the same time, others were Tweeting (and publishing via other platforms) the photograph that appeared in the 4 May Tweet and adding comments. Care therefore needs to be taken in analysing the evidence. Mr Wood could only be liable – if he is liable at all – for reputational damage caused to Mr Monir by the 4 May Tweet (and any proved republication of it).

Some of the evidence about these other publications has been conveniently gathered in Mr Wong’s witness statement. It has not been challenged by Mr Santos. I have added some other relevant material from the documents in the trial bundles.

Mr Hirst submits that, on the evidence, I should find that the Eddie English Facebook Post had been created by Mr English based on the Tommy Robinson Tweet. Mr Santos however contends that I should reject that because there are several differences between this and the Eddie English Facebook Post, namely: (1) it has a different ordering of different words; (2) it capitalises “Champion”; (3) it refers to Sarah Champion as “MP”; (4) it uses a hashtag before “Rotherham”; (5) it refers to Mr Monir as a “groomer taxi driver” rather than a “child grooming taxi driver”; (6) it uses a hashtag before “groomer”; and (7) it makes no reference to Labour.

Mr Wong also states in his witness statement that the followers of the Bristol UKIP Twitter account did not include anyone called Eddie English. That may be correct, but

The Eddie English Facebook Post was commented upon by his Facebook “friends”. Of particular importance are the following exchanges between Marc David, Jake Cresswell, Tyler Dyas and Liam Terrence that took place around 21.15 on 6 May 2015:

Marc David shared the Eddie English Facebook Post with his “friends” with the comment: “Denaby main youth club hires people like him on left, dirty cunt!”. Mr Monir knows both Mr Cresswell and Mr David as individuals that live at Denaby, near Rotherham. He knew them from when he worked for Doncaster Youth Services at the Denaby Youth Club called MyPlace. They had both attended MyPlace when they were 16 or 17 years-old and when Mr Monir had worked there in 2014. He used to mentor them and knew them well.

Another Facebook user, Barry Horner, also shared the Eddie English Facebook Post with his “friends” on 7 May 2015 with the comment: “sue your neighbour int it?”. Mr Monir explained in his evidence that Mr Horner lives in East Dene, a 15-minute walk away from his home. The unchallenged evidence is that Mr Horner’s question was directed to Sue Horner, one of Mr Monir’s next-door neighbours. In his second witness statement, Mr Monir said that he had been receiving “hassle” from his neighbours and attributed that to their knowledge of the Eddie English Facebook Post.

The ‘percolation’ or ‘grape-vine’ effect of defamatory allegations is well-recognised in defamation: Slipper -v- BBC [1991] 1 QB 283, 300 per Bingham LJ. The Court of

That evidence provides a firm foundation for the conclusion that there were at least some people who could identify Mr Monir from publication of the 4 May Tweet (and its republication), but Mr Monir also relies upon a general inferential case that the 4 May Tweet would have been seen by at least some who could recognise him.

I was somewhat sceptical of the value of Mr Wong’s attempt at a detailed analysis of the extent of publication of the Tweet. Much of it represented speculation or the drawing of conclusions from an inadequate factual base (e.g. the assumptions about

“active” accounts). Mr Wong’s conclusion that his inquiries with the Bristol UKIP Twitter followers demonstrated that none had identified Mr Monir, falls to be assessed against the actual evidence of identification. As the example of the Eddie English Facebook Post clearly demonstrates, the direct publication to actual followers (and retweeting) of a defamatory Tweet may well be just the start of a chain of republication. In this instance, within 48 hours, the defamatory message in the 4 May Tweet had jumped platforms from Twitter to Facebook. That cross-over between social media is both easy and obvious. Again, Mr Wong’s conclusion that there were potentially 18 followers of the Bristol UKIP Twitter account in Yorkshire (none of whom responded affirmatively to his question whether s/he had identified Mr Monir) falls to be measured against the clear evidence that, with just one link in the chain, the defamatory contents of the 4 May Tweet had reached Yorkshire and, with two, it had reached Mr Monir’s next-door neighbour.

Mr Monir has also relied upon other evidence which he contends demonstrates publication of the 4 May Tweet to people who were able to identify him:

Mr Monir also invites the Court to draw the inference as to the extent of publication of the 4 May Tweet (and that people must have identified him from the photograph) because of various things that happened to him.

I am satisfied on the evidence that Mr Monir has established that the following people were able to (and did) identify him from the photograph in the 4 May Tweet and its republication: (1) Shakoor Adalat; (2) Shazana Monir; (3) Mohammed Hussein; (4) Shamraz Monir; (5) Marc David; (6) Jake Cresswell; (7) Tyler Dyas; (8) Liam Terrence; (9) Barry Horner; and (10) Sue Horner. Mr Daad did not know Mr Monir, so he could not have identified him.

I am satisfied that the WhatsApp Republication is likely to have led to the 4 May Tweet being published to around 1,000 recipients and that, because of the WhatsApp groups’ connection with Rotherham, a significant, but unquantifiable, number of those would have been able to identify Mr Monir from the photograph. It may be that some of the 20 or so people who asked Shamraz Monir about the 4 May Tweet had received it via this route, but I cannot reach a firm conclusion on that.

Mr Wong’s evidence as to identification of Mr Monir (or lack of it) by the followers of the Bristol UKIP Twitter account does not assist. It certainly does not undermine the very clear evidence of identification that I have found.

I am therefore satisfied that Mr Monir has established that the 4 May Tweet was published to people who understood the words contained in it to refer to him.

Mr Wood did not personally post the 4 May Tweet on the Bristol UKIP Twitter account. However, there are four bases on which Mr Monir contends that Mr Wood is nevertheless liable for its publication:

Direct participation/authorisation

I can deal with this alleged basis for finding Mr Wood liable for publication of the 4 May Tweet shortly. It fails on the facts.

The basic principles are clear and not disputed by the parties.

Mr Santos relied upon Ricci -v- Chow [1987] 1 WLR 1658 as authority for the proposition that members of unincorporated associations are liable as primary publishers for publications by the association. That is to state the proposition too widely. The existence of an unincorporated association does not alter the basic requirement to show that the relevant individual participated in or authorised publication. The liability of individual members of an unincorporated association depends upon their individual involvement with the publication: see Mercantile Marine -v- Toms [1916] 2 KB 243, 246-247 per Swinfen Eady LJ.

It is common ground that it was Mr Langley who composed and posted the 4 May Tweet on the Bristol UKIP Twitter account. Indeed, Mr Monir originally contemplated suing Mr Langley. He was included as a defendant in the Claim Form when it was originally issued. However, his name was deleted by amendment prior to service of the Claim Form. As such, Mr Wood became the sole defendant to the claim. That was a tactical choice by Mr Monir. He decided that Mr Langley was not worth suing whereas he clearly concluded that Mr Wood was. Mr Wood is clearly aggrieved at this, but a claimant is entitled to choose against whom he pursues his claim. If a defendant who is sued considers that another person is jointly liable for the claim s/he faces, then s/he can join another party under CPR Part 20. Mr Wood did not do so, perhaps also recognising that Mr Langley would be unlikely to satisfy any judgment. Nevertheless, where a claimant chooses to sue someone other than the primary publisher, he takes on the burden of establishing that this other person is liable for the publication.

The facts are clear. The 4 May Tweet was composed and posted by Mr Langley without reference to (or seeking approval from) Mr Wood. Mr Wood did not write the 4 May Tweet and he had no knowledge of its contents before it was published by Mr Langley. He did not directly participate in its publication. It is true that Mr Wood had given the Prior Approval Instruction to Mr Langley regarding what he posted on the Bristol UKIP branch’s social media accounts. And, had this instruction been followed, and had Mr Wood given direct approval to the 4 May Tweet before it was published, then he would have been liable as a primary publisher. But, as I have found, that Prior Approval Instruction was not observed. Indeed, on the evidence there does not seem to have been a single occasion on which Mr Langley sought Mr Wood’s specific authorisation or approval for any social media posting. The 4 May Tweet was no different. Mr Langley was the only person who participated directly in its original publication and Mr Wood did not specifically authorise it.

In consequence, I find Mr Wood is not liable as a publisher of the 4 May Tweet as a result of personal or direct participation in publication.

Agency

Mr Monir’s reliance upon agency as a basis for establishing Mr Wood’s liability has been contentious. Mr Hirst submitted, at the outset of the trial, that neither the case on agency, nor vicarious liability, was properly pleaded in Mr Monir’s statements of case. I was never asked specifically to rule upon this point, but I am satisfied that the objection has no substance.

Mr Santos contends that, when he published the 4 May Tweet, Mr Langley was

Further, Mr Santos submits that Mr Langley had been appointed Bristol UKIP’s Campaign Manager and was therefore acting as Mr Wood’s agent in the context of an election. As such, he argues, the Court should apply by analogy the principles from election law as to the candidate’s liability for the actions of his/her agent: Erlam -v- Rahman [2015] EWHC 1215 (QB) [51] to [58]; and Ali -v- Bashir [2013] EWHC 2572 (QB) [71] to [76]. Based on these authorities, he contends that, Mr Wood was liable for the actions of his agent, Mr Langley, “even if they are committed without his knowledge and consent or, indeed, contrary to his express instructions”. Knowledge of what agents are doing does not need to be proved against a candidate for him to be fixed with responsibility for their actions.

Mr Hirst argues that, in the absence of express authorisation, a principal will be liable for the acts of his agent (who is not an employee) only in respect of a statement made by the agent in the course of representing his principal and where the agent has actual or apparent authority to make the statement: §§8-176 to 8-182 Bowstead and Reynolds on Agency (21^st edition, 2017). He submits that agency is a fiduciary relationship where the principal assents to the agent acting on his behalf giving the agent authority to affect the principal's relations with third parties.

He argues that, in the context of defamation, a principal is not necessarily responsible for everything said by an agent: Bezant -v- Rausing [2007] EWHC 1118 [72]. Mr Langley's role was not as a representative of any individual and he was not able to affect that person's relations, legal or otherwise, with third parties. The 4 May Tweet was not an act in which Mr Langley was representing Mr Wood with actual or apparent authority. Finally, when Mr Langley posted the 4 May Tweet, he was acting outside the scope of his agreed role.

Before turning to consider the treatment of agents under election law, I will consider the position under the general law of agency.

The general principle, as formulated by the authors of Bowstead (§8-177) (footnotes omitted) is:

“A principal is liable in tort for loss or injury caused by his agent, whether or not his servant, and if not his servant, whether or not he can be called an independent contractor, in the following cases:

(a)

if the wrongful act was specifically instigated, authorised or ratified by the principal.

(b)

(semble) in the case of a statement made in the course of representing the principal within the actual or apparent authority of the agent: and for such a statement the principal may be liable notwithstanding that it was made for the benefit of the agent alone and not for that of the principal.

(c)

where the principal can be taken to have assumed a responsibility for the actions of the agent.”

There are very few authorities that directly bear on the issue of liability for publication of a defamatory statement by an agent, as opposed to an employee. Many of the cases rely upon principles from vicarious liability and apply them in the context of agency, but it is clear from the discussion in Bowstead (§8-176) that care needs to be paid to the circumstances where it is right to do so.

The oldest, and clearest, authority is Colonial Mutual Life Assurance Society Ltd -v- Producers & Citizens Co-operative Assurance Company of Australia Ltd. A canvasser and agent, Mr Ridley, was engaged by an insurance company under an agreement, one of the terms of which prohibited him from defaming any other person or institution. While attempting to obtain business, he made defamatory statements concerning another insurance company. It was held that in so doing he was acting, not independently, but as a representative of the first assurance company conducting negotiations for that company, and that company was liable for his statements.

In their joint judgment, Gavan Duffy CJ and Starke J held:

“It was said that the defendant reserved to itself no power of controlling or directing Ridley in the execution of the work he was employed to do or of dismissing him for disobedience of orders: in short, that Ridley was an agent of the defendant in the nature of an independent contractor, and not servant of the defendant for whose tort in the course of his employment the defendant would be responsible. The nature of Ridley’s employment, however, gave the defendant a good deal more power of controlling and directing his action than was conceded by the argument addressed to us. Nothing in the agreement or the position of the parties denied the right of the [defendant] to control and direct Ridley, when, where and whom he should canvass. In our opinion the judgment of the Judicial Committee in Citizens’ Life Assurance -v- Brown [1904] AC 423 really concludes the present case. But if it does not, still we apprehend that one is liable for another’s tortious act ‘if he expressly directs him to do it or if he employs that other person as his agent and the act complained of is within the scope of the agent’s authority”. It is not necessary that the particular act should have been authorised: it is enough that the agent should have been put in a position to do the class of acts complained of… And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it. The class of acts which Ridley was employed to do necessarily involved the use of arguments and statements for the purpose of persuading the public to effect policies of insurance with the defendant, and in pursuing that purpose he was authorised to speak, and in fact spoke, with the voice of the defendant. Consequently the defendant is liable for defamatory statements made by Ridley in the course of his canvass, though contrary to its direction.” 150. Dixon J (with whom Rich J agreed) held:

“… In my opinion, the liability of a master for the torts committed by his servant in the course of his employment is not imposed upon the appellant by the agency agreement, but I do not think that it follows that the appellant incurs no responsibility for the defamation published by the ‘agent’ in the course of his attempts to obtain proposals.

In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal.

But a difficulty arises when the function entrusted is that of representing the person who requests its performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity. In this very case the ‘agent’ has authority to obtain proposals for and on behalf of the appellant; and he has, I have no doubt, authority to accept premiums. When a proposal is made and a premium paid to him, the Company then and there receives them, because it has put him in its place for the purpose. This does not mean that he may conclude a contract of insurance which binds the Company. It may be, and probably is, outside his province to go beyond soliciting and obtaining proposals and receiving premiums; but I think that in performing these services for the Company, he does not act independently, but as a representative of the Company, which accordingly must be considered as itself conducting the negotiation in his person… [the Judge then referred to some academic commentary]

Some of the difficulties of the subject arise from the many senses in which the word ‘agent’ is employed. ‘No word is more commonly and constantly abused than the word agent. A person may be spoken of as an agent and no doubt in the popular sense of the word may properly be said to be an agent, although when it is attempted to suggest that he is an agent under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading’ (per Lord Herschell in Kennedy -v- De Trafford (1897) AC 180, 188). Unfortunately, too, the expressions ‘for,’ ‘on behalf of,’ ‘for the benefit of’ and even ‘authorise’ are often used in relation to services which, although done for the advantage of a person who requests them, involve no representation.

If the view be right which I have already expressed, that the ‘agent’ represented the Company in soliciting proposals so that he was acting in right of the Company with its authority, it follows that the Company in confiding to his judgment, within the limits of relevance and of reasonableness, the choice of inducements and arguments, authorised him on its behalf to address to prospective proponents such observations as appeared to him appropriate. The undertaking contained in his contract not to disparage other institutions is not a limitation of his authority but a promise as to the manner of its exercise. In these circumstances, I do not think it is any extension of principle to hold the Company liable for the slanders which he thought proper to include in his apparatus of persuasion.

The wrong committed arose from the mistaken or erroneous manner in which the actual authority committed to him was exercised when acting as a true agent representing his principal in dealing with third persons.

I do not think a distinction can be maintained between breaches of duty towards third persons with whom the agent is authorised to deal and breaches of duty towards strangers, committed in exercising that authority. If what he does is done as the representative of his principal, it cannot matter, apart from questions of estoppel and of apparent as opposed to real authority, whether the injury which it inflicts is a wrong to one rather than another person.”

The most recent edition of Bowstead cites the case as authority for the proposition, from the judgment of Bowen J, that “the principal is liable for the actions of the agent when the function entrusted is that of representing the person who requests his performance in a transaction with others, so that the very service to be performed consists in standing in his place and assuming to act in his right and not in an independent capacity” (§8-182, and see also Illustration (24) in §8-196).

Regan -v- Taylor and Bezant -v- Rausing do not assist.

Gros -v- Crook is another case of pure agency, rather than vicarious liability for the acts of an employee. The editor of a weekly publication invited a writer to contribute an article. He did, it was published, and the writer was paid for it. The article was defamatory of the claimant who brought a claim for libel against the editor and the publishers. The writer’s identity was not known to the claimant and he was not a party. The writer was found to be malicious, but the editor was not. The issue was whether the defendant editor and publishers were responsible for the malice of the writer, as their agent. The defendants contended that the writer was an independent contractor and that they were not responsible for his malice. Relying upon Egger -v- Chelmsford [1965] 1 QB 248 and Citizens Life Assurance Co Ltd -v- Brown [1904] AC 423, Blain J held that “there was no doubt about the defendant’s liability for the writer’s tort”. He noted that there was a “dearth of authority on the position if the writer had been an independent contractor”, but concluded that “if the writer had not been found to be contractually the publishers’ agent they would not have been held vicariously

In Brown, the Privy Council held that the defendant company was liable for the defamatory (and malicious) publication of its employee even if he was acting outside his authority in writing and publishing the libel. Lord Lindley held:

“[The employee] had no actual authority, express or implied, to write libels nor to do anything legally wrong; but it is not necessary that he should have had any such authority in order to render the company liable for his acts. The law upon this subject cannot be better expressed than it was by the Acting Chief Justice in this case. He said: “although the particular act which gives the cause of action may not be authorized, still if the act is done in the course of employment which is authorized, then the master is liable for the act of his servant.” This doctrine has been approved and acted upon by this Board (in Mackay -v- Commercial Bank of New Brunswick (1874) L. R. 5 P. C. 394; Swire -v- Francis (1877) 3 App. Cas. 106), and the doctrine is as applicable to incorporated companies as to individuals.”

The authors of Bowstead suggest that: “a person should be liable in respect of all tortious statements, whether in deceit, negligence, defamation or injurious falsehood, made by his agent (not being a servant) in the course of representing him, provided that the statement made was within a category which the agent had actual or apparent authority to make”. In support of this proposition, reliance is also placed on the High Court of Australia’s decision in Sweeney -v- Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161. This was a personal injury claim. The claimant had been injured by the door of a faulty refrigerator in a service station and convenience store. The door had been negligently repaired by an engineer. The engineer was not an employee of the defendant, but a contractor engaged from time to time by the defendant. The trial judge held that the defendant was vicariously liable for the mechanic's negligence. He concluded that the mechanic “was acting as a servant or agent of [the defendant] with the authority and the approval of [the defendant] to undertake the work that he did”.

The finding of liability was reversed by the New South Wales Court of Appeal and the appeal against that decision to the High Court was dismissed. As part of the judgment, however, the Court considered the rationale for the principles derived from Colonial Mutual Life. The single judgment of the Court included the following:

The defendant in Colonial Mutual Life was liable for the slanders of the agent that were incidental to his primary function of soliciting business. Here, the defamatory publication of the 4 May Tweet was part of the essential function of the task delegated to Mr Langley: to post material on the campaigning social media platforms for Mr Wood and, in the words of Dixon J, Mr Wood left it to Mr Langley to decide what to include in the “apparatus of persuasion”.

In Colonial Mutual Life and Gros -v- Crook, the agent was engaged under a contract and was remunerated for his work. Is that a necessary requirement? In my judgment, it is not. There is no need for a contract or payment. A person can act as an agent on an ad hoc basis (or as a “servant without remuneration”) if he is given a task to perform and is doing the principal’s work for him: Hewitt -v- Bonvin at 192 per Mackinnon LJ. It is the delegation of performance of a task by the principal to someone to act on his behalf that gives rise to the liability on the basis of agency: at 195 per Du Parcq LJ.

Sweeney establishes that the conduct of which complaint is made must have been undertaken in the course of, and for the purpose of, executing the task that the principal had delegated to the agent.

What if the agent acts beyond the authority given by the principal? In my judgment the authorities make clear that, in relation to liability for defamatory publications of the agent, where the agent has been delegated the task of sending out publications on behalf of the principal, it is no answer if the agent breaches an instruction given by the principal not to publish certain material. That principle emerges clearly from Colonial Mutual Life; finds support, by analogy, in the passage of the judgment of Lord Linley from Brown set out above; and is endorsed in a passage in Oriental Press Group Ltd -v- Fevaworks Solutions Ltd:

Applying these principles to the current case, in my judgment Mr Langley was quite clearly acting as the agent of Mr Wood when he was posting material on the Bristol UKIP Twitter account, including the 4 May Tweet. I have set out my factual findings as to the operation of the Bristol UKIP Twitter account above (particularly in [38] and [51]), but in summary:

I reach my conclusion on agency without considering the election law authorities, but they are entirely consistent with the conclusion that Mr Langley was acting as Mr Wood’s agent.

In Erlam -v- Rahman, Commissioner Richard Mawrey QC gave a clear exposition of those who were regarded as agents of a candidate standing at an election for the purposes of election law (he had given a similar explanation in Ali -v- Bashir):

Although Mr Langley was not Mr Wood’s nominated election agent, he would nevertheless comfortably fall within the definition of ‘agent’ under election law.

Mr Santos relied upon these authorities to support the submission that, if an election candidate is held responsible for corrupt or illegal practices by his agents for the purposes of criminal liability or the voiding of an election result (as recognised in Erlam), there would appear to be no good reason why he should not be held responsible for their tortious actions. I cannot accept that simple submission. The definition of ‘agent’ in election law is specific, particularly, to election law offences. It cannot simply be applied directly into the general law of agency. I do accept, however, that the authorities provide a very clear indication that, as a matter of policy, candidates standing at elections cannot hide behind their ignorance of what their agents are doing in their name.

In the final analysis the point does not need to be resolved because, for the reasons

Vicarious Liability

Vicarious liability is an area of the law that has undergone significant change in recent years. Mr Santos argues that the law has developed to the point that Mr Wood can be held vicariously liable for Mr Langley’s actions. That is despite the fact that Mr Langley was a volunteer and he was not employed.

Based on the Supreme Court decisions in Cox -v- Ministry of Justice [2016] AC 664 and Mohamud -v- Wm Morrison Supermarkets plc [2016] AC 677, Mr Santos contends that a party is liable for torts committed by a person in a position akin to that of an employee.

In Cox, the Supreme Court held that the prison service, an executive agency of the defendant, was vicariously liable for the negligent act of a prisoner in the course of his work in a prison kitchen, even in the absence of a contract of employment. In his judgment, Lord Reed JSC summarised the current state of the common law of vicarious liability, and endorsed the approach of Lord Phillips PSC in Various Claimants -v-

Mr Santos submits that following principles emerge from the authorities:

Mr Hirst submits in response:

Initially, I was very sceptical that Mr Wood could be held vicariously liable for

Nevertheless, the arguments advanced by Mr Santos are interesting and raise difficult issues. In light of my conclusion that Mr Wood is liable for Mr Langley’s publication of the 4 May Tweet on the basis of agency, I do not need to decide whether he was also vicariously liable. It seems to me that, given the complexity of the arguments, I should leave them to be argued and determined in a case where they arise squarely for determination. The Court of Appeal has cautioned Judges about expressing what would necessarily be obiter views in cases that can be and are determined on another basis: Floe Telecom Ltd (in liquidation) -v- Office of Communications (T-Mobile (UK) Ltd intervening) [2009] BusLR 1116 [20]-[23] per Mummery LJ. If I were wrong in my conclusions as to agency, then I have found the facts which would enable the Court of Appeal to decide the point on vicarious liability if that were to be advanced by Mr Monir as an alternative basis supporting my decision on liability.

Byrne -v- Dean ratification

The fourth basis on which Mr Monir seeks to hold Mr Wood liable for publication of the 4 May Tweet is self-standing and is an alternative to the first three bases. In summary, Mr Santos contends that, following Mr Monir’s telephone call to him on 8 May 2015, Mr Wood became aware of the 4 May Tweet. He thereafter failed to remove it and is taken therefore to have ratified its continued publication. From that point, it is contended, Mr Wood became liable for its publication.

The principle from Byrne -v- Deane [1937] 1 KB 818 can be stated, shortly, as follows:

It is important to acknowledge that liability based upon authorisation of publication, albeit on an inferred basis, is as primary publisher. Liability as a secondary publisher is different. At common law, all of those who were actively involved in the publication and dissemination of defamatory material were liable, even if they did not know that what was published contained a libel. Those who were ignorant that the publication contained a libel were regarded as secondary publishers. The paradigm example was the distributor of a newspaper. Secondary publishers were afforded defences under common law, but these have now been placed on a statutory footing: principally s.1 Defamation Act 1996 and latterly ss. 5 and 10 Defamation Act 2013: see discussion of Warby J in Richardson -v- Facebook, Google (UK) Limited [2015] EWHC 3154 (QB) [29]-[35]. There is occasionally confusion in the authorities in distinguishing clearly between (1) those who are not publishers at all under common law (e.g. ISPs that take an entirely passive role as conduit for a publication – see Bunt -v- Tilley; and Davison -v- Habeeb [2012] 3 CMLR 104 [38] per HHJ Parkes QC) and who have no need of any form of innocent dissemination defence; and

Once liability is established under the Byrne -v- Deane principle based on actual authorisation of publication, the defendant cannot avail himself of any type of innocent dissemination defence. From the point of authorisation, he has become a primary publisher (cf. Davison [47]). In this case, on this issue, Mr Wood either has primary liability for publication of the 4 May Tweet or he has no liability at all. There is no room, in this case, for any form of liability as secondary publisher. I had received submissions on s.1 Defamation Act 1996, but this issue does not arise.

The fundamental distinction between primary and secondary liability is knowledge that the publication contains some defamatory matter and the ability to control its publication or continued publication.

To my mind, there is no better summary of the common law than the following paragraphs from the decision of the Court of Final Appeal of the Hong Kong Special Administrative Region in Oriental Press Group Ltd -v- Fevaworks Solutions Ltd:

Ribeiro PJ uses the terms “first” or “main” publisher to refer to what I have called the

“primary” publisher; and “subordinate” publisher for what I have termed “secondary” publisher. Conceptually, there is no difference, but I prefer the terms “primary” and “secondary” because, in the context of Byrne -v- Deane liability, it avoids the potential confusion that the relevant publisher is not the “first” publisher, yet his liability (by authorisation) is primary. The same would apply to those who consciously choose to republish the publication of another. Chronologically, they are not the “first” publishers, but their liability is also primary.

Tamiz -v- Google is an example of primary liability on the basis of the Byrne -v- Deane concept of authorisation: the defendant having knowledge of the defamatory publication, after being given notice, and the ability to control its continued publication [34].

Mr Hirst has relied upon Underhill -v- Corser [2010] EWHC 1195 (QB). In that case the defendant, who was on the board of an unincorporated association and was able to prevent publication, failed to do so. He was not liable for publication as the mental element to fix him with responsibility for publishing was absent.

The particular facts were that Mr Corser was the secretary and treasurer of an association for steam train enthusiasts. A defamatory editorial was published in the magazine of the association about the former chairman. A draft had been sent by email to Mr Corser, with a suggestion that legal advice should be obtained. Mr Corser admitted he had received the material and had skim read it but neither approved it nor had taken any other action. He had failed to prevent it being published although, as he was on the board, and had seen it, he was in a position to do so.

The decision in Underhill does not, on analysis, assist Mr Wood. The claimant’s submission was that, as a result of having read the article prior to publication and done nothing to stop it, the defendant should be taken to have authorised it [25]. However, Tugendhat J found that he had simply not turned his mind to the publication and so it could not be inferred that he authorised the publication [106]-[111].

It seems to me that the real question, at the heart of this case, is what knowledge of the publication is sufficient to sustain liability on the Byrne -v- Deane basis? Does the defendant have to know the precise words of the publication, or will some less detailed knowledge suffice?

Urbanchich -v- Drummoyne Municipal Council (1991) Aust Torts Reports 81-127, is a decision which makes it clear that whether a defendant’s omission to remove the defamatory publication can be taken to authorise the continued publication is a matter of fact. There, the local council had still not removed a defamatory poster affixed to one of its bus shelters a month after notification. Hunt J held that the imposition of an obligation, on a local government authority, to remove such a poster could be unreasonably onerous or expensive and the council could well decide to schedule its works in a particular way for a wide variety of reasons. Depending upon the particular

As a general proposition, I accept Mr Hirst’s submission that actual knowledge, not imputed knowledge is required: Murray -v- Wishart [2014] NZCA 461; [2014] 3 NZLR 722. The basis of liability is knowledge not negligence. But this begs the question, ‘actual knowledge of what?’ To adjust slightly the facts in Byrne -v- Deane, would the defendants have been liable if, instead of seeing the notice for themselves, they had simply been told of its existence? And if yes, how much would they need to know about the publication before they could become liable for its continued publication.

In my judgment, the starting point is a passage in the judgment of Greene LJ in Byrne -v- Deane (at 838):

“The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?”

In Bunt -v- Tilley [23], Eady J held that there must be “knowing involvement in the process of publication of the relevant words”. In Oriental Press Group Ltd -v- Fevaworks Solutions Ltd [84], Ribeiro PJ suggested:

“The important question is whether the publisher knew or can properly be expected to have known the content of the article being published. Eady J stated that knowledge of ‘the relevant words’ contained in the article complained of must be shown. That should be taken to mean that the publisher must know or be taken to know the content—not necessarily every single word posted—but the gist or substantive content of what is being published…”

I do not read Eady J’s judgment as suggesting that liability on a Byrne -v- Deane basis can only be sustained if the defendant is shown to have knowledge of the precise words that are being published. In [21], the Judge recognised that the issue was fact sensitive but that, as a general statement, “if a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue.”

I consider that Ribeiro PJ is correct when he held that it was not necessary to demonstrate knowledge of every single word that had been posted. Knowledge of the “gist or substantive content” may well, depending upon the circumstances be sufficient. In this respect, the element of control that the defendant can exert is likely to be important. The closer the connection of the defendant with the means of publication and the easier it is for him to identify and remove the defamatory publication complained about, the easier it will be to draw the inference of authorisation from the refusal/failure to prevent its continued publication. Ultimately, it is not possible to draw

Mr Hirst made an ambitious submission that the Court should hold that nothing short of written notification should suffice to sustain the inference of authorisation from continued publication following notification. No doubt written notification would be powerful evidence to which the Court would have proper regard when assessing the issue, but it is not a requirement that, to be effective, notification must be in writing.

I have set out my findings of fact about Mr Wood’s knowledge of the 4 May Tweet in [75]-[81] above. In my judgment, the evidence of Mr Wood’s knowledge of the 4 May Tweet is sufficient to draw the inference that he acquiesced in and thereby authorised its continued publication. My reasons for this conclusion are:

In the premises, I find that Mr Wood is also liable for the continued publication of the 4 May Tweet after he was put on notice of its publication by Mr Monir’s complaint on or around 8 May 2015.

By section 1(1) of the Defamation Act 2013 a statement is not defamatory “unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

The Court of Appeal considered the issue of “serious harm” under s.1 in Lachaux -v- Independent Print Limited [2018] QB 594. The principles set out by the Court of

Another principle that was reaffirmed in Lachaux was the rule in Dingle -v- Associated Newspapers Ltd [1964] AC 371: publication by other persons on other occasions of substantially the same libel is of no relevance on the matter of general damages [90], [92]. “The inference of serious harm… arises from each publication … of these seriously defamatory statements” ([89] per Davis LJ). The rule in Dingle therefore continues to apply in relation to serious harm (see Sube -v- News Group Newspapers Ltd [2018] EWHC 1234 (QB) [28]-[29]). On the issue of liability, the fact that other publications have also caused serious harm to a claimant’s reputation – perhaps on a much larger scale – is no answer to the harm caused by the defendant’s publication. Substantial disparity between the harm caused to the claimant’s reputation by different publications may provide a basis on which the defendant responsible for the more limited publication could argue that pursuit of litigation over that smaller publication was Jameel abusive, but that requires a very careful consideration of the facts of the individual case and what the claimant seeks to achieve by the proceedings (see e.g. Alsaifi -v- Trinity Mirror plc [2019] EMLR 1 [40]).

Dingle does not dispose of the need to consider the issue of causation, however. As Sharp LJ has observed in Economou ([40]-[41]), depending upon the facts of an individual case, a claimant may still be required to establish that the publication complained of caused serious harm, rather than some other publication. As is clear from Sharp LJ’s analysis, in cases where the Court has drawn the inference of serious harm based upon the seriousness of the defamatory imputation, then there may well be little (if any) room for an argument as to causation.

In a case where, either the defamatory allegation is not of such seriousness as to raise the inference of serious harm and the claimant is therefore seeking to establish that harm by evidence, or where (as in Economou) there are live issues as to reference and the effective extent of publication of the defamatory allegation, the issue of causation

Mr Santos submits that the allegation made against Mr Monir is of such seriousness that its publication plainly raises the inference of serious harm to his reputation. He refers, by analogy, to the decision of Jay J in Umeyor -v- Nwakamma [2015] EWHC 2980 (QB), in which the Judge was satisfied that the publication of an allegation of forgery had caused serious harm to the claimant’s reputation [52]. He submits that allegations of the sexual abuse of children are of the utmost seriousness and, to the extent that any authority is required for that proposition, he relies upon Lillie -v- Newcastle City Council [2002] EWHC 1600 (QB) [1538].

Mr Santos submits that there has been significant publication of the 4 May Tweet, “likely in the thousands”. He suggests that the evidence demonstrates that the publication of the Tweet goes beyond the followers of the Bristol UKIP Twitter account. Mr Santos also relies upon the republication of the Tweet (the Eddie English Facebook Post and the WhatsApp Republication). He also submits that the responses to the Eddie English Facebook Post (see [120] above) demonstrate the serious harm that has been caused by the 4 May Tweet. Mr Monir was called a “nonce” who should be castrated, “needs his head caving in” and “his teeth taking out of his head”.

The evidence as to whether the identified publishees believed that Mr Monir was involved in the sexual abuse of children is as follows:

Mr Hirst submits that Twitter is the most ephemeral kind of publication - informal, brief, instant and continuous - where users quickly move on to the next thing. A libel claim based on a single isolated Tweet, in which the claimant was not named, should call for the clearest evidence that some harm has been caused. He contends that, in Economou -v- De Freitas, the Court refused to infer serious harm based on mass media publications in BBC broadcasts and in The Guardian where a claimant was not named. Whilst there was evidence that seven different groups of people had the specialist knowledge to identify Mr Economou, and upwards of 148 were identified in his evidence, there was no evidence that any of them responded to him adversely as a direct result of the particular article in question. Hostility to Mr Economou was more likely to have been caused by other contemporaneous oral and media publications not sued upon ([77]).

Mr Hirst submits that Mr Monir has not pleaded and shown a sufficient case that publication of the 4 May Tweet has caused serious harm, or any inference of serious harm has been rebutted, for the following reasons:

I have found the meaning of the 4 May Tweet to be that Mr Monir was involved in the sexual abuse of children ([94] above). That is a very seriously defamatory allegation. The conduct alleged is a serious criminal offence that, following conviction, would be likely to lead to the imposition of a substantial term of imprisonment. I have no hesitation in drawing the inference that the publication caused serious harm to Mr Monir’s reputation.

Has Mr Wood rebutted the inference of serious harm? In my judgment he has not.

I have found that the 4 May Tweet was published (or its contents republished) to 10 identifiable individuals (see [129] above) who understood the 4 May Tweet to refer to Mr Monir. Mr Wood has only demonstrated that two of those publishees did not believe the allegation (Mr Adalat and Shamraz Monir - [202(i) and (iii)] above).

I am satisfied that there exists an unquantifiable number of further publishees who were members of Mr Hussain’s WhatsApp groups and who are likely to have been able to identify Mr Monir because of the connection of the groups to the Rotherham area (see [130] above). It is impossible for Mr Wood to rebut the inference of serious harm that arises in respect of these publishees because he cannot know who they are, and so cannot begin to demonstrate that they did not believe the allegation.

I accept that Twitter is an ephemeral medium, but that does not have a direct bearing on the issue of serious harm. As I have recognised ([90] above), this feature is something to be considered when determining the objective single meaning. Once the meaning that the hypothetical ordinary reasonable reader would understand the publication to bear is determined, what other (ex hypothesi unreasonable) readers made of the Tweet is irrelevant. Where the seriousness of the defamatory imputation raises the inference of serious harm, it is for a defendant to demonstrate that, in fact, notwithstanding the seriousness of the imputation no serious harm was caused.

The submission, based on (1) Tamiz -v- Google (as to duration of publication); and (2) the limited number of publishees who were able to identify him from the photograph in the 4 May Tweet, that Mr Monir’s claim does not amount to a ‘real and substantial’ tort is misplaced in the context of serious harm. If it had relevance, it would have been to a submission that Mr Monir’s claim was Jameel abusive. In light of the seriousness of the allegation, a suggestion that Mr Monir’s claim was ‘trivial and undeserving’ and ‘not worth the candle’ would have been untenable, but no Jameel argument was advanced.

The suggestion that Mr Monir’s response to the publication of the 4 May Tweet is incompatible with it having caused serious harm to his reputation is a confused submission. First, Mr Monir’s subjective assessment of what harm was caused to his reputation by the 4 May Tweet is irrelevant to the objective assessment of serious harm. Second, if it be suggested that Mr Monir does not care about the damage to his reputation (a submission I would reject without hesitation on the evidence), then that could only have been relevant to (a) the assessment of Mr Monir’s hurt feelings in the

The fact that there were, on Mr Wood’s case, 29 other similar defamatory publications to the same or similar effect is not relevant on the facts of this case. They have no bearing on the issue of serious harm because of the principle in Dingle and, in any event, Mr Monir has satisfied me, on the evidence, that it was the 4 May Tweet (not some other publication) that has caused the reputational damage when it was read by the identified 10 individuals and those in the WhatsApp Republication.

Finally, in the absence of evidence that the TellMama publications (asserting the falsity of the allegation made against Mr Monir in the 4 May Tweet) had (a) come to the attention of the relevant publishees; and (b) been accepted by them as completely rehabilitating Mr Monir’s reputation in their eyes, these publications have no bearing on the issue of serious harm. They certainly do not rebut the inference that publication of the 4 May Tweet caused serious harm to Mr Monir’s reputation.

I conclude that Mr Monir has satisfied the requirements of s.1 Defamation Act 2013.

The claim having succeeded, I must turn to consider the remedies that are sought.

Mr Monir seeks:

I gratefully adopt the summary of the relevant principles gathered together by Warby J in Barron –v- Vines [2016] EWHC 1226 (QB):

I will group the submissions made by Mr Santos and Mr Hirst on the various factors that they say have a bearing on the assessment of damages

Mr Santos submits that there has been a very substantial publication of the 4 May Tweet when the extent of the republication is taken into account.

Mr Hirst contends that the starting point for any award of damages would be “extremely low”, based on what he suggests is the lack of any evidence of any significant number of people having seen and believed the imputation in the 4 May Tweet.

Mr Santos submits that the publication of the 4 May Tweet has had a “devastating impact” upon Mr Monir. He suggests that the impact upon Mr Monir is evident from the telephone call he made to the police on 8 May 2015.

Before publication of the 4 May Tweet, Mr Santos contends that Mr Monir had dedicated his career to working in community engagement and volunteered with charities that help young people in his community and beyond. The 4 May Tweet, branding him a paedophile, has had a significant negative impact on his family life and relationships with his wife and young children, his charitable work and his employment.

Mr Hirst has not sought to challenge any of this evidence.

Mr Hirst has not referred me to any previous awards of damages. Mr Santos has referred me to the following cases:

Mr Santos submits that Mr Woods’s conduct of these proceedings has been unreasonable, aggressive and high-handed throughout. He contends that it justifies an award of aggravated damages. Mr Monir relies on the following alleged unreasonable behaviour, which have served to aggravate the severe injury caused to his feelings by the original libel:

By way of response, Mr Hirst submits that whether the absence of any apology aggravates damages depends on the facts of the case. He contends that where a defence is based on lack of reference (or a denial of responsibility for publication) the absence of an apology is explicable: Morgan -v- Odhams Press Ltd [1971] 1 WLR 1239.

Mr Hirst advances the following points in mitigation “to reduce or (more likely extinguish)” any award of damages:

Damages for libel cannot be calculated on any mathematical basis. By definition, they seek to provide compensation for harm that it is almost impossible to quantify in monetary terms. The Court attempts to achieve consistency in awards by applying the principles I have identified above, but in reality, no case presents exactly the same circumstances and only some level of commonality or general principle can be extracted.

In this case, the gravity of the defamatory allegation puts it towards the top end of seriousness. The extent of publication, measured simply by the number of publishees who would have understood that the allegation was being targeted at Mr Monir, was very limited. Nevertheless, the assessment of damages is not a ‘numbers game’. The Court will also assess the significance of the publishees and the extent to which publication to them (a) has caused damage to the claimant’s reputation and (b) has increased the hurt and embarrassment that the claimant feels. Here, Mr Monir was particularly upset that the contents of the 4 May Tweet had ended up being published to people that he knew from his local area and even his next-door neighbour. In this case, the understandable reaction to the publication was not only hurt and embarrassment but what I find to be genuine fear and distress on Mr Monir’s part. I find that, notwithstanding the fairly limited publication, there is evidence of serious and significant reputational harm (see e.g. [120] above).

I am quite satisfied on the evidence of Mr Monir and his wife that the publication of the allegation that he was involved in the sexual abuse of children was life changing. It has transformed the life of Mr Monir and his family for the worse. Mr Monir has become something of a recluse; afraid to carry on his normal life. The consequences of that extend beyond Mr Monir and touch his whole family. Of course, damages for libel

One difficulty in this case is that it is very difficult to isolate the harm caused by the 4 May Tweet. As I have set out above ([116]-[117]), there were others who published similar allegations at the time. Save for that consequences that, on the evidence, can be directly attributed to the contents of the 4 May Tweet, it is impossible to determine whether the people who threw a brick through Mr Monir’s window were acting as a result of the publication of the allegation that Mr Monir was involved in the sexual abuse of children and, if so, from where they had gained the impression that he was. Mr Wood is only liable for the consequences that flow from the publication of the 4 May Tweet, not the independent and unconnected publications of similar allegations by others.

One striking feature of this case is the intransigence of Mr Wood and his refusal publicly to apologise and to withdraw the allegation that Mr Monir was involved in the sexual abuse of children. The fact that Mr Wood regards this allegation as “inappropriate and regrettable” makes this refusal even more difficult to comprehend. I am driven to the conclusion that this is a further example of Mr Wood’s stubbornness. He has become completely convinced that he has done nothing wrong and therefore he will not apologise for or retract the allegation. On simply a human level, this is a difficult stance to understand. It is possible to maintain the belief that one is not responsible for some wrong done to another, but nevertheless to recognise the harm that has been caused and do what one can to remedy it. Mr Wood could have done that and, as an intelligent man, he must have realised that this was a course that could have been taken. He could have maintained, as a matter of principle, that he was not liable for the publication of the 4 May Tweet yet done the decent thing of making it as clear as he could that there was absolutely no truth in the allegation that was published in the 4 May Tweet by an organisation of which he was Chairman.

The consequence of what can only be called a mean-spirited stance has been: (a) to deprive Mr Monir of an unequivocal statement that this allegation was false and should never have been published; and (b) substantially to increase the hurt and stress occasioned to Mr Monir. These are all matters which have a significant effect on the award of damages. Some of the points made on behalf of Mr Wood come perilously close to the unattractive submission that Mr Monir is himself to blame for at least some of the harm to his reputation. I reject that completely.

A person in Mr Monir’s position could easily have felt completely overwhelmed by the situation he faced. He identified the 4 May Tweet, because that was what he was first alerted to, and he set about doing what he could to have it removed. It is unattractive for any defendant to advance in mitigation that other people have also libelled the claimant, particularly in relation to an allegation as serious as this one.

It needs to be stated clearly: Mr Monir is completely innocent. He has been seriously libelled. He has been forced to fight a libel claim all the way through to trial with every single conceivable point being taken against him. That is not to say that a defendant is not entitled to advance legitimate points in defence of a claim, but when this delays the obtaining of what the Court finds is the vindication to which the claimant is entitled, the conduct of the defendant becomes a relevant factor in the assessment of damages. The strain that it has put on him was obvious to me when he gave his evidence. I am doubtful even the success in this claim, the award of damages and his public vindication through this judgment will restore him to the life he enjoyed before this libel.

Had this libel been published in a national newspaper, an award of £250,000 or more could easily have been justified. Necessarily, I have to ensure that the award I make is proportionate to the limited scale of publication and it also has to take proper account of the difficulties of causation to which I have referred. Taking all these matters into account, I consider that the appropriate award is one of £40,000.

I can deal with the claim for an injunction shortly. An injunction is a discretionary remedy. It is granted only where it has been demonstrated, by evidence, that the defendant threatens to republish the libel and the injunction is necessary to prevent the commission of further torts. There is no evidence of Mr Wood threatening to republish the 4 May Tweet or anything similar. In the circumstances, an injunction is neither necessary nor justified.

The purpose of this section is to provide a remedy that will assist the claimant in repairing the damage to his reputation and obtaining vindication. Orders under the section are not to be made as any sort of punishment of the defendant.

Orders under s.12 are discretionary both as to whether to order the publication of a summary and (if the parties do not agree) in what terms and where. Exercising the power to require a defendant to publish a summary of the Court’s judgment is an interference with the defendant’s Article 10 right. As such, the interference must be justified. The interference may be capable of being justified in pursuit of the legitimate aim of “the protection of the reputation or rights of others”. Whether an order under this section can achieve this aim will be a matter of fact in each case. If the interference represented by a s.12 order is justified, then the Court would then consider whether (if the parties agree) the terms of the summary to be published is proportionate. The Court should only make an order that the defendant publish a summary of the Court’s judgment if there is a realistic prospect that one or other of these objectives will be realised and that the publication of a summary is necessary and proportionate to these objectives.

There is an obvious purpose, in an appropriate case, for ordering a newspaper to publish a summary of the judgment because there is a realistic basis on which to conclude that the published summary will come to the attention of at least some of those who read the original libel and others who may have learned about the allegation via the “grapevine” effect. In a smaller scale publication, where it is possible for the original publishees (or at least a substantial number of them) to be identified, again an order requiring the publication to them of a summary of the judgment may well help realise the objectives underpinning s.12. Each case will depend upon its own facts. If the defendant has already published a retraction and apology then, depending upon its terms, that may mean that an order under s.12 is not justifiable or required. The claimant will be able to point to that to assist in his vindication or repair to his reputation.

It is difficult to justify ordering a defendant to publish a summary of the court’s judgment when there is no realistic prospect that by doing so it will come to the attention of any of those to whom the original libel was published (or republished). Put simply, the legitimate aim cannot be realised, and the order will either not be necessary at all or the requirements as to publication will be disproportionate.

In this case, there is no method by which Mr Wood could be ordered to publish a summary of the judgment that would provide a realistic prospect of it coming to the attention of the original publishees or at least a significant number of them. Mr Wood does not have access to a reliable method of reaching the original publishees. As a matter of practical reality, Mr Monir is likely to achieve more effective vindication as a result of his success in this claim being publicised in the Rotherham area, as it is likely to be, by local media.

In consequence, I am satisfied that is not a case where it would be appropriate to order the publication by Mr Wood of a summary of the court’s judgment. Mr Monir is likely to secure vindication of his reputation through the publicity this judgment is likely to receive through other channels.