Turley v UNITE the Union & Anor

This judgment is divided into the following sections:

Introduction

This is the judgment following the trial of the claims for libel, misuse of private information, breach of confidence and breaches of the Data Protection Act 1998.

After the close of the evidence, the parties notified the Court that they had resolved by agreement the non-libel claims. That has narrowed the issues that I have to decide. The First Defendant has agreed to pay the Claimant damages of £2,000 for these claims. The parties have agreed no order for costs. That settlement does rather support the conclusion that resolution of the issues (several of them complicated) in relation to the non-libel claims risked being wholly disproportionate.

At the heart of the claim is the publication of an article on a blog operated by the Second Defendant, The Skwawkbox, on 7 April 2017 (“the Article”). The text of the Article is set out in Appendix 1 to this judgment. The Claimant claims that the Article defamed her. The First Defendant denies that it is liable for the publication of the Article and both Defendants rely upon substantive defences of truth and public interest.

The Parties

Until Parliament was recently dissolved in advance of the general election, the Claimant was the Member of Parliament for Redcar representing the Labour Party. She was first elected at the general election in May 2015 and was re-elected in June 2017. In the 2015 election, the Claimant received 17,946 votes (representing 43.9%) and had a majority of 10,388. In 2017, the Claimant received 23,623 votes (representing (55.5%) but her majority reduced to 9,485). Largely that appears to be a result of an improvement in the Conservative Party vote (and reduction in the votes for UKIP and the Liberal Democrats). The Claimant was unsuccessful in her re-election campaign in the general election last week. She lost her seat to the Conservative candidate, who was elected with a majority of 3,527.

The Claimant is a member of the trade union, Community, which she joined in 2012. In her evidence, the Claimant has identified herself as being on the centre-left of the political spectrum and within the Labour Party as a ‘moderate’. She has previously worked as a Special Political Advisor to ‘New Labour’ politicians, David Blunkett MP and Hilary Armstrong MP. She supported, respectively, Andy Burnham and Owen Smith against Jeremy Corbyn in the Labour Party leadership elections of 2015 and 2016. The Claimant served briefly in Jeremy Corbyn’s shadow cabinet, as Shadow Civil Society Minister, but resigned from it on 27 June 2016 in advance of the Parliamentary Labour Party’s vote of no confidence in Mr Corbyn, which she supported.

The First Defendant is a trade union. It was formed on 1 May 2007 by the merger of Amicus and the Transport and General Workers’ Union. It is the UK’s largest trade union, with a membership of nearly 1.3 million. The First Defendant is affiliated to the Labour Party. Len McCluskey is the General Secretary of the First Defendant. He has held that post since 2011. The First Defendant and Mr McCluskey have been supporters of Jeremy Corbyn as leader of the Labour Party.

On 6 December 2016, Mr McCluskey called an election for a new General Secretary of the First Defendant. Gerard Coyne was one of the candidates who stood against him.

The Second Defendant is the publisher and editor of The Skwawkbox which he established in May 2012. In his evidence, the Second Defendant stated that he had established the blog to report information and analysis and to offer opinions which he believed were not receiving sufficient or fair coverage from traditional media outlets. He is a member of the Labour Party and has in the past been the chair of his local Constituency Labour Party. In his statement he said that he supported the leadership of Jeremy Corbyn and also supported Mr McCluskey as General Secretary of the First Defendant. He stated that his blog had a completely open editorial position and political stance, but added this in relation to the blog’s support for Mr McCluskey in the General Secretary election:

“My support for his 2017 re-election campaign was based on a political assessment of his candidacy and the importance of his winning to the wider Labour movement. This is entirely in line with the well-publicised and completely open left-wing political stance of both the blog and personally. The blog is highly opinionated and strong in its defence of Mr Corbyn’s leadership, to which a significant number in the Labour Party are vehemently opposed. As a result, my blog is often under strong attack from political opponents of Mr Corbyn whom I have criticised…”

The Witnesses

During the trial, in addition to giving evidence herself, the Claimant called the following witnesses: (1) Sarah Freeney, the Claimant’s Senior Case Worker; (2) Christopher Leslie, MP for Nottingham East; (3) Ruth Smeeth, MP for Stoke-onTrent North; (4) Alec Brown, the Claimant’s Constituency Office Manager; and (5) Jordan Hall, the Claimant’s Parliamentary Researcher.

The Defendants called the following witnesses: (1) Stephen Walker, the Second Defendant; (2) Karen Reay, the First Defendant’s Regional Secretary for the North East, Yorkshire and Humberside region; and (3) Howard Beckett, one of First Defendant’s Assistant General Secretaries responsible for political and legal affairs.

By agreement, the witness statements of the following witnesses for the Claimant were admitted into evidence without the witness being required to attend for crossexamination: (1) Charles Brady, one of the Claimant’s Caseworkers; (2) Jonathan Keenan, the Claimant’s husband; and (3) Simon Gallant, the Claimant’s solicitor.

The Claimant has relied upon the witness statement of Angela Smith, MP for Penistone and Stocksbridge, as a hearsay statement. Ms Smith was unable to attend the trial because she was campaigning for re-election in the forthcoming election. The Defendants have relied upon the witness statement of Pauline Doyle, Director of Campaigns and Communications of the First Defendant, as a hearsay statement. Ms Doyle was unable to attend the trial because of a family bereavement.

There have not been many areas of factual dispute in the witness evidence. The few matters upon which I must make an assessment of the credibility of the witnesses are addressed in my factual findings in Section D of this judgment.

The Facts

The First Defendant established a new category of membership in 2012, called Unite Community. Mr Beckett, in his evidence, explained:

“[Unite Community] was intended to promote equality, dignity and respect for all. In particular, Unite Community allows for those who may be on the margins of society, who are not in employment, to organise collectively and obtain support, particularly for local and national activist campaigns…”

The launch of Unite Community was noted in a Guardian article on 1 May 2012:

“UK’s largest union redefines Cameron’s ‘big society’

Unite is offering legal, debt and benefits advice for out of work people in their local communities to win new followers to its cause.

When a visitor enters the Casa Bar in central Liverpool, evidence of a community’s transformation is visible from the front door… The Casa is one of the founding branches of a community membership programme launched by Britain’s largest trade union, Unite. For 50p a week, people not in work over the age of 16 can receive a range of benefits, including access to Unite’s legal helpline, debt counselling and assistance on claiming benefits. Unite says the scheme is a natural extension of its activities and values, but it is also an attempt to reclaim members who have been lost to economic upheavals in the past three decades…”

In December 2016, the First Defendant published information, principally on its website and in publicly available videos, about Unite Community membership. During the trial, particular reference was made to:

My conclusions on the information provided by the First Defendant in the categories (ii) to (vi) in the preceding paragraphs are that the message was diffuse, and did not clearly communicate that Unite Community membership was solely for those not in

In the written materials, again, the overall message was promoting the value (and strength) of communities acting together: “Unite’s community membership scheme brings together people from across our society”. Whilst the next sentence, “Those not in employment are welcome into the union family”, is relied upon by the Defendants as a clear statement of eligibility for membership, in context it does not signal clearly that membership was limited exclusively to this category of member. The document in (iii), similarly referred to Unite Community membership as “bring[ing] together people outside of the workplace into the union community, linking families and workplaces together to strive for a better, more caring society”. It is true that the document includes a statement, “If you are not in paid employment… membership costs just 50p”, but the overarching message of the document is inclusivity, not a membership category that had strict limits. I accept that if one looks at these materials asking the specific question, “who is eligible for Unite Community Membership?” a close reading of the text might lead the reader to have some doubt, but this is not how these documents would be read by ordinary people. Poring over these documents in the intensive theatre of a trial, subjecting them to minute – word by word – analysis is unlikely to divine the message that would be conveyed to an ordinary reader.

Screenshots of the process of joining Unite Community via the First Defendant’s website have been produced in evidence. These show that someone seeking to join as a member of Unite Community would, in December 2016, have gone through the following steps:

It is here convenient to note that at no stage in the application process was an applicant required to confirm or declare that s/he was not in employment or even that s/he was eligible for membership of Unite Community. An applicant who wished to learn more about Unite Community membership – and who accepted the invitation to follow the offered link – would have been taken to the Unite Community Homepage (see [17(ii)] above). If the applicant clicked on the link to the First Defendant’s rules at Stage 8, then s/he would have been taken to the page headed “Structure” and, if s/he had then clicked on a link to the “Unite rule book” then s/he would have been provided with the full text of the First Defendant’s Rule Book (see [17(i)] above). Only the Rule Book made it clear – by Rule 28.1 – that Unite Community Membership was limited “to all not in paid employment as well as those not seeking employment”.

Once the applicant had completed the online process, s/he would receive a welcome email, generated automatically, in standard form:

“Thank you for completing your application for Unite’s Community membership which has now been processed.

Your Member Number is: XXXXXXX

Your User ID is: [applicant’s email address]

Thank you for joining Unite and welcome to our community membership. Unite is the UK and Ireland’s largest trade union. Unite is organising in workplaces and communities across the nations and working hard to ensure fairness, dignity and respect for all within our society.

You will soon receive your union card and details of the wide range of individual benefits you will get with your membership, in particular can I draw your attention [to] our freephone legal hotline…

In addition to the personal benefits, trade unionism is about collective support. We are at our best when acting together, uniting to resolve the issues that really concern us.

Effective campaigning that unites the broadest range of people and organisations is a skill. We intend to offer practical training to our community activists that will give you the benefits of collective organisation and effective campaigning.

Unite will work with you to ensure that your voice is heard and that you gain the respect and recognition you deserve in your community. If you are interested in becoming a Unite Community Activist and would like details of how to access training options and organise a community branch in your area contact Community Support.

We hope you have a long and happy association with Unite.”

In December 2016, the Claimant was a member of a private WhatsApp group, called The Birthday Club. The group chat facility on WhatsApp enables members of a group to exchange messages privately with other members of the group.

The Birthday Club WhatsApp Group (“The Birthday Club”) was set up by Christopher Leslie in late 2015/early 2016. As a result, Mr Leslie became the group administrator, and he could join others to the group. In his evidence, Mr Leslie stated that The Birthday Club emerged from discussions between Labour Party Parliamentarians who were disenchanted with the direction in which the Party was going after the election of Jeremy Corbyn as the party leader. Mr Leslie described The Birthday Club as a “mechanism that allowed for the efficient and confidential exchange of information amongst a trusted group of politicians who shared the same outlook”.

The membership of The Birthday Club numbered some 50 MPs, and, in December 2016, included the Claimant, Ruth Smeeth, Stella Creasy and Angela Eagle.

At 22.40 on 5 December 2016, Ruth Smeeth posted to The Birthday Club a link to the PoliticsHome article (see [8] above) with the comment:

“And in other news it’s game on in Unite. We’ll need to be careful though to ensure that it’s not positioned by McCluskey as him versus us…”

Other members of The Birthday Club responded as follows (with times shown in brackets; ellipses in the original text):

In her evidence, Ms Smeeth said that she had been a member of the First Defendant since its creation in 2007, and before that a member of its predecessor unions since she was 18 years old. She stated that until she read the Article, she was not aware that Unite Community membership was reserved for the unwaged. On the contrary, in her witness statement she said:

“I knew in December 2016 (and continue to know today) people in my local branch of Unite who were in the Community branch even though they were in work. I believed that the Community membership was at least partly a way of allowing people to join a Union who were based in a non-unionised workplace. So, even to today’s date [19 June 2019], I still believe that Unite Community membership is held by a large number of people in work… I would never have encouraged my colleagues in the Birthday Club group to join the Community section of Unite if I thought for one moment that that was contrary to the rules of the Union or was in any way dishonest…”

When cross-examined, Ms Smeeth did not accept that Unite Community was established to provide access to union-support for those who were not employed. Ms Smeeth maintained that, in her experience, people in non-unionised workplaces joined Unite Community. When it was put to her that this was not in accordance with the First Defendant’s rules, Ms Smeeth said that she had not read the rulebook. She accepted that, in December 2016, she knew that the subscription rate for Unite Community membership was discounted. In relation to her message in The Birthday Club suggesting that others should join the First Defendant, she accepted that she wanted people to join to vote in the General Secretary election and to vote against Mr McCluskey. She did not accept that encouraged others to join Unite Community because this was the best means of joining without it coming to the attention of the union; she said “No, it genuinely was cheaper”.

The Claimant, as indicated in her message at 22.51, took up Ms Smeeth’s suggestion and joined Unite Community, and did so in little more than 9 minutes. In her witness statement, she confirmed her recollection that she went through the online process in the stages identified in [20] above. She stated that at no stage in the process had it been indicated to her that employed people could not be members of Unite Community and she did not have to make any declaration that she was not in employment. She stated: “If at any point there had been any indication that employed persons could not join Unite Community, I would not have submitted my application to the Community section.” The Claimant’s evidence was that she had “no inkling” that Unite Community was reserved for the unwaged. She had not read or seen any of the materials or videos describing and promoting Unite Community (described in [17] above). When she was cross-examined, the Claimant accepted that there was a link at Stage 2 of the online process which offered more information about Unite Community, but she stated that she had not followed it because she felt she had a sufficient understanding of Unite Community. This was based on her knowledge of its campaigning activities in her constituency. The Claimant accepted that she had ticked the box – at Stage 8 – confirming that she agreed to abide by the First Defendant’s rules, but stated that she had not read them. In relation to the subscription rate, she accepted that 50p per week was substantially lower than a member of a union could expect to pay and what she paid for membership of her own union, but stated that she thought that the lower rate was because it was for membership of a community action group rather than conventional membership of a union providing work-place representation.

In cross-examination, Mr Hudson QC suggested to the Claimant that the reason that she had not read Unite’s rules was because she had been desperate to join to gain a vote in the General Secretary election. The Claimant did not accept this and stated that she had believed that she was entitled to join. She accepted that she had breached the rules by joining Unite Community, because she was in employment, but stated that she had not done so knowingly. Pressed as to her reason for joining, the Claimant frankly accepted that she had joined for the sole purpose of gaining a vote in the General Secretary election and, had it not been for that, she probably would not have joined at all. She had intended to vote against Mr McCluskey’s re-election. She also accepted that she had joined the Community section of the union as she believed that would enable her to join covertly and that was what she had had in mind when she had asked Ms Smeeth whether she thought that the union would notice her joining. The Claimant stated that she believed that if Mr McCluskey had become aware that MPs had joined, he would have tried to stop them getting a vote in the General Secretary election, but she denied that she had demonstrated that she was willing to conceal and deceive. The Claimant stated that she had wanted to join as a lay member, not as an MP. She feared that if she joined as an MP, she would then become a “Unite MP” and forced to follow Len McCluskey’s ‘whip’, which she did not want to do.

After she had completed the online membership application, the Claimant confirmed that she received the welcome email (see [22] above), but had not received any membership materials – or membership card – through the post. Mr Hudson QC put directly to the Claimant that she was lying in her evidence about not receiving this correspondence. At the time, I could not immediately see why the Claimant would lie about this point. Subsequently, it became apparent from an examination of some of the documents in the trial bundles that the Claimant’s address was not accurately recorded in the First Defendant’s records. The house number was recorded as 59 whereas the Claimant lived at 69. This point had not apparently been picked up by any of the parties prior to trial. Although the Defendants made some inquiries to seek to establish whether the occupants of No.59 had delivered post from Unite to the Claimant at No.69, eventually, on the last day of evidence, the Defendants withdrew the allegation that the Claimant had lied in her evidence about not having received any post from the First Defendant in connection with her Unite Community membership. Whilst making due allowance for the heat of battle during a trial, in my judgment, this allegation of lying ought never to have been made in the first place.

It is clear that at some point in January 2017, staff at the First Defendant became aware that the Claimant had joined Unite Community. On 31 January 2017, Liane Groves, Head of Unite Community, emailed John Coan, Unite Community Coordinator for the North East, Yorkshire & Humberside region, with the text of a proposed email to be sent by Mr Coan to the Claimant:

“Dear Anna,

Thank you for joining Unite.

I note that you have joined as a Unite Community member. However, I understand that as an MP you are in full time employment.

As a paid worker you need to switch your membership to industrial. If you need assistance in this please let me know. I’d be grateful if you confirm this email.

Best wishes

John Coan”

Ms Groves said that the draft would need to be run past Karen Reay. When she gave evidence, Ms Reay said that she did not think that she had been consulted about the email (and certainly there are no email communications suggesting that she had been). On 4 February 2017, Mr Coan sought (and obtained) final approval from Ms Groves to send the draft email to the Claimant.

Mr Coan did not actually send the email to the Claimant until 1 March 2017 (in the terms of the draft in the preceding paragraph). I accept Ms Wilson’s submission that the email exchanges between Mr Coan and Ms Groves do suggest that there was a sensitivity about contacting the Claimant. It is not clear on the evidence why the issue was regarded as sensitive or indeed why there was a further delay before Mr Coan sent the email.

The Claimant responded to Mr Coan’s email on 7 March 2017:

“Hi John

Apologies for this – I didn’t realise I had joined the wrong section, thanks for letting me know.

Yes I would like to transfer to the appropriate membership please – do let me know how I can do this.

Many thanks

Anna”

That same day, Mr Coan forwarded the Claimant’s email (copying the Claimant) to his assistant, Rose Ridley with the message: “Can you help Ms Turley move from Community membership to full time subscriptions please.”

Mr Hudson QC put to the Claimant that she had been ‘found out’ by the First Defendant. The Claimant said that this was the first time she had become aware of a suggestion that she was not eligible to join Unite Community. Mr Hudson QC put to the Claimant that she had not responded to Mr Coan that she did not want to become an industrial member, a ‘Unite MP’. The Claimant said that she wanted a vote in the General Secretary election and was prepared to remain a Unite MP for as long as she needed to get a vote. She accepted that she did not respond to Mr Coan that she thought that she was eligible for Unite Community membership or probe why he claimed that she was not eligible. The Claimant said that she was not going to argue with him. She accepted that she did not contact Ms Ridley (and, although after publication of the Article, it is clear that Ms Ridley and Mr Coan had great difficulty in contacting the Claimant to effect the transfer of her membership).

On 20 March 2017, a rally in support of Mr McCluskey’s re-election was held in Durham. Karen Reay attended the rally and John Taylor, Secretary of the Tees Unite Community Branch, had spoken to her. In her evidence, Ms Reay said that Mr Taylor had approached her at the rally, and he asked whether he could have a word with her. He said that he was concerned that he had members of his branch who were employed. Ms Reay said that it was a busy rally and she had asked him to email her and she said that she would look into it.

On 22 March 2017, Mr Taylor followed up this meeting with an email to Ms Reay:

“Further to our chat at Len McLuskey’s (sic) Rally in Durham on Monday night, here are the details of 2 members on my list who should not be in the Unite Community as one is an MP and the other, is one of her Parliamentary Staff, here are the details:

Anna Turley MP [membership details given]

Jordan Hall [membership details given]…”

Ms Reay responded to Mr Taylor stating that she would look into the matter and then forwarded Mr Taylor’s email to Mr Coan on the same day and asked him if they could discuss. Mr Coan responded a few minutes later to Ms Reay and Mr Taylor:

“I have already emailed Ms Turkey (sic) regarding this several weeks ago. I was polite but made it very clear that as a member of Parliament she needed to be paying full subscriptions and explained the criteria for Community Membership. She did reply to my email explaining that this was an error on her part and that she would update her membership. It’s the first I have heard of the other individual but will of course look into this issue further.”

It is not a point of any substance, but Mr Coan’s suggestion that he had explained the criteria for Community Membership to the Claimant is not accurate. His email of 1 March 2017 did not contain any such explanation. It may be that Mr Coan had misremembered the contents of his message to the Claimant.

A point of potential significance is whether Mr Taylor’s notification to Ms Reay as to his concern over the Claimant and Mr Hall’s membership of Unite Community was an “official complaint” that was being investigated by the First Defendant (see Article §§11 and 14). In a response to a Request for Further Information, dated 22 November 2018, seeking clarification as to an investigation into the Claimant, the Defendants stated:

“No formal investigation had begun. A complaint had been received, which needed to be investigated, but matters had not progressed beyond that point before the Claimant left the Union. Accordingly, no individual had been appointed to take charge of the investigation.”

In her evidence at trial, Ms Reay said that, prior to publication of the Article, there had been a complaint and it needed to be investigated. There was no formal investigation at that stage, and she had no further contact with Mr Taylor in relation to the matter. She did confirm, however, in answer to a question by Ms Wilson, that any investigation would have been an internal matter and the First Defendant would not comment on that. She was not aware of any contact from the Second Defendant in relation to any article on the issue and she had not been aware of The Skwawkbox before the Article was published.

In his witness statement, the Second Defendant gave an account of how he was given information about the Claimant’s membership of Unite Community from a source. As he is entitled to do, the Second Defendant has declined to identify any of the sources who provided him with information for the Article. Whilst protecting their identities, the Second Defendant explained:

“A few days before publication of the Article (I believe it may have been on the evening of Tuesday 4 April 2017 or the morning of Wednesday 5 April 2017) I was informed by the Primary Source that a ‘flood’ of new members had joined Unite Community on the concessionary rate who were ineligible for membership because they were in employment. The word ‘flood’ was used by the Primary Source, and I understood it to mean a significant and abnormal number over a short period, but specific numbers were not given to me. I was told that they included MPs and councillors. I was given the name of one MP, who was the Claimant, and two councillors. I decided not to identify the other two people who were named as they were not particularly newsworthy. I was told that this was a co-ordinated plan, and because of the timing, and given the political profile of those joining, that it was evident that the plan was to increase the vote for Coyne. The timing was consistent with joining to beat the cut-off date of 1 January 2017 to be eligible to vote in the election for General Secretary. I was told that a complaint had been made about the Claimant, which was being investigated at regional level.

The above is not verbatim, as I have not retained a note of the conversation. The substance was that the source understood that the complaint was being investigated at regional level, but the words could have been ‘looked into’ or similar term. The source did not convey that it was being investigated in any particular way, or that there was any formal procedure under union rules.”

The Second Defendant stated that this “Primary Source” was someone with whom he had a long-standing relationship and who had “consistently proved reliable”. The “Primary Source” had, he said, never previously provided him with information that had turned out to be false. The source was described as “active politically with extensive connections across the Parliamentary Labour Party” and who talked regularly to MPs and parliamentary staffers. The Second Defendant stated in his witness statement that the Primary Source “does not work for the First Defendant, and to my knowledge never has done. I have no knowledge of any other connection [the source has] with the First Defendant or what union [the source is] a member of, if any.”

Thereafter, the Second Defendant stated that he contacted two further sources to whom he put the information that ‘right-wingers’ including the Claimant were joining Unite Community. The Second Defendant described these as “Secondary Sources” and he said that they confirmed to him that: “there was indeed a co-ordinated move to join Community to vote against the General Secretary, being done by people who clearly did not qualify for the concessionary Community rate, and that these included the Claimant.”

All that the Second Defendant has been prepared to reveal in evidence as to the status of the various sources is that:

Mr Taylor has not given evidence, but Ms Reay also denied when she gave evidence that she had provided information to the Second Defendant. During the trial, Ms Wilson generally kept open the possibility that she would invite me to conclude, notwithstanding this evidence, that Ms Reay and/or Mr Taylor were included amongst the Primary and Secondary Sources identified by the Second Defendant. However, in her closing submissions, she has submitted that, although the Court would not be able to resolve who were the sources, I should nevertheless conclude that someone at the First Defendant must have supplied the information.

My conclusions on the evidence are as follows:

In his witness statement, the Second Defendant stated that it was his usual practice to have the information for an article settled before he started to approach people for comment. In relation to the Article, he said that he wished to obtain a comment from the First Defendant before approaching the Claimant so that the information that he put to her “was as corroborated as possible”.

So, on 6 April 2017, he contacted the press office of the First Defendant by telephone. Although he did not know her name, it is common ground that he spoke to Pauline Doyle. Ms Doyle was the Director of Campaigns and Communications at the First Defendant, a post she has held for some 9 years. The Second Defendant said that he put the substance of §11 of the Article to Ms Doyle; that he was aware that a complaint had been made about the Claimant and was being investigated or ‘looked into’. The Second Defendant said that he asked which regional officer was dealing with the complaint and was told that it was Karen Reay. Finally, he asked whether Ms Doyle would give him a general comment on a move by ineligible people joining at the concessionary rate in order to vote in the election. Ms Doyle, he said, told him that she would have to get back to him.

Ms Doyle did not give evidence at the trial, and her statement has been admitted as hearsay. In it, she said that she did not have a clear recollection of what she had said to the Second Defendant and did not keep notes. She said that she was busy – because of the General Secretary election – and that her priority and focus at the time “was to shut down any inquiries regarding the election”. There were two reasons for this, she said. First, it was not for the First Defendant to make statements or comments about the candidates in the election. Second, she was seeking to limit any possible reputational damage that the General Secretary election was causing to the First Defendant. She recalled that the Second Defendant had initially sought a comment on the Claimant having joined the union on reduced Unite Community rates and a complaint having been raised about this. Prior to receiving this inquiry, Ms Doyle had had no prior dealings with the Claimant and told the Second Defendant that she would need to look into the points that he had raised and get back to him.

Ms Doyle then raised the substance of the Second Defendant’s inquiry with Ms Groves. She could not recall whether they had spoken on the telephone or whether she had spoken to her in person, as they both occupied offices in the same building. Ms Groves was aware that the Claimant had joined Unite Community and put Ms Doyle in touch with Mr Coan. Ms Doyle believed that she spoke to Mr Coan later that day, or possibly the next day. Her recollection was that Mr Coan had told her that the Claimant had contacted his assistant, Ms Ridley, to change her membership category (and subscriptions) and it was only subsequently that a complaint had been raised. Although Mr Coan did not provide Ms Doyle with copies of his email exchanges of 1 and 7 March 2017 with the Claimant, having seen them subsequently, she believed that Mr Coan had “talked [her] through the substance of them”. Following the complaint, Mr Coan had discovered that the Claimant had not responded to Ms Ridley

With this information, and explaining her decision as to the comment she gave to the Second Defendant, in her witness statement, Ms Doyle stated:

“The fact that the Second Defendant, as a journalist, knew what he did about the Claimant’s membership and a complaint, was not something I wanted to be commenting on. The First Defendant is a trade union and its main priority is getting on with trade union business, and not enquiries like those of the Second Defendant. I just wanted to close down the enquiry from the Second Defendant, whilst at the same time making it clear that those in work could not join Unite Community.

I therefore decided to keep the statement factual and as limited as possible, with no names mentioned. My intention was to prevent the union’s internal business being dragged into the media. I think that I suggested to John Coan that I would see if I was contacted again, rather than going back to the Second Defendant and, if I was, I would say something along the lines of the statement the Second Defendant subsequently published. Looking at the statement, I would have suggested that I respond generally about the fact that the First Defendant welcomes new members, but anyone joining on a fraudulent basis would prompt an investigation. This statement was true and it was not a statement about the Claimant. Then in terms of responding regarding the complaint about the Claimant, which the Second Defendant knew about, I would have just confirmed a complaint had been received and was being looked into. My intention again, was to close down the enquiry and I think John Coan would have agreed with my approach at that time.

The Second Defendant did call me back and I provided the First Defendant’s statement… I did not write down the statement I gave, but I have read what is included in the Second Defendant’s article… I believe that what the Second Defendant has published is a broadly accurate reflection of what I said to him…”

In her statement, Ms Doyle stated that, on reflection, in the statement she provided to the Second Defendant, her suggestion that a complaint into the Claimant was being “investigated” may have given the wrong impression:

“I can see now that by saying it was being ‘investigated’, as opposed to perhaps saying ‘considered’, ‘examined’ or ‘looked into’ could have led people reading more into the statement than was intended. I was not saying that there was a formal ‘investigation’ underway and I did not intend my statement to be interpreted in this way. To me this was a ‘nothing’ enquiry by a blog with a limited readership…”

In relation to the – now resolved – claim for breach of the Data Protection Act 1998, Ms Doyle said:

“I had no intention when making the statement of breaching any data protection duties owed to the Claimant. I really did not think about this at the time. I do not know if it was because the Claimant is a MP and media enquiries regarding MPs are normally on matters of public record. The union would generally treat an enquiry about a MP as something we could answer because their membership should be a matter of public record. A MP is a public person and being in a union is something that the Labour Party requires and promotes, so to me it was not something out of the norm to respond to an inquiry which may relate to a MP. It just did not cross my mind that what I was saying was revealing personal data. Now, with hindsight, I would not have provided to the Second Defendant the personal data which is referred to in [the Press Statement]. However, from my best recollection, the Second Defendant already indicated that he knew the Claimant had joined as a Unite Community member and that a complaint had been raised about this. By responding as I did, I was just trying to shut the enquiry down at what was a very busy time dealing with extraordinary high volume (sic) of enquiries.”

In his witness statement, the Second Defendant said that, by the early afternoon on 7 April 2017, he had not heard back from Ms Doyle. He had created a working draft of the Article and telephoned Ms Doyle again to follow up on his request for a comment that he had made the day before. He said that Ms Doyle gave him the response that he recorded in the Article and that he had typed what appears in §14 of the Article (“the Press Statement”) directly into the text whilst she was on the telephone. The Second Defendant said that he asked Ms Doyle whether Unite Community had an exception to the ‘unwaged’ rule for MPs and Ms Doyle confirmed that there was not.

The First Defendant does not dispute that Ms Doyle gave the Press Statement to the Second Defendant as it appeared in the Article. It is convenient for me to state, here, my further conclusions of fact in relation to this part of the evidence. In doing so, I am conscious that I am rejecting some parts of Ms Doyle’s evidence without that evidence being tested in court. Nevertheless, I am satisfied that, assessed against the evidence as a whole, I am justified in reaching these conclusions:

Having obtained the First Defendant’s comment for publication, the Second Defendant sent an email to the Claimant, at her Parliamentary email address, at 15.17 on 7 April 2017, headed “Your Unite Community Membership”:

“Dear Ms Turley

The SKWAWKBOX had received information indicating you joined Unite Community union earlier this year – a section of Unite for unemployed people – in order to vote for Gerard Coyne.

Do you wish to provide any comment on why you didn’t join the main Unite union for an extra £10 or so a month before the story goes out.

Regards,

Steve

Editor

The SKWAWKBOX”

Ms Wilson cross-examined the Second Defendant as to what his email did not contain. She put it to him that he had not included what the First Defendant had told him: that a complaint had been received and was being investigated by the First Defendant, that membership of Unite Community was exclusively for the unwaged, that there was no exemption for MPs to join Unite Community; that she had made a false declaration in order to join Unite Community and that the First Defendant’s spokesperson had said that anyone joining Unite on a fraudulent basis would prompt an investigation. The Second Defendant accepted that his original email had not contained these details. He said that he did not put all the information to her because he did not want her to be “fully forewarned”. He said that when he telephoned her office, at 16.07, he had outlined the nature of the article (I deal with this call in [61]-[66] below).

Not initially giving the subject of an article the full facts is a strategy that may be used by a journalist (by analogy, it can be effective when used in police interviews of a suspect). It is sometimes adopted in cases where the facts of the individual case, or prior experience of the subject, suggest that s/he may tailor his/her answer to fit the facts that are put to him/her and/or s/he will try to “spoil” the story by providing information to another publisher. It must be recognised, however, that this strategy is not without risk. If only limited information is given to the subject it may mislead him/her as to the seriousness of the inquiry. If the subject does not respond – and, in consequence, the publication does not contain his/her response – the journalist may face criticism for not having given the subject a fair and accurate description of allegations prior to publication. Ultimately, whether the subject has been given a fair opportunity to give his side of the story will be a relevant factor if the journalist seeks to rely upon the public interest defence in response to any defamation claim.

The Second Defendant received an automated response to his email to the Claimant, which included the following:

“Thank you for contacting the office of Anna Turley MP for Redcar.

This is an automated response to acknowledge receipt of your email…

I will deal with correspondence in the order that I get it. Please be patient whilst I process your email and request. It may take up to 4 weeks to respond to your email, but we will always aim to respond as soon as possible…”

The Second Defendant sent a further email to the Claimant’s email address at 15.53:

“The article will be published tonight, so please respond by return if you wish any comment to be included”.

The Second Defendant has a record showing a call – of 2 minutes 12 seconds duration – to the landline number of the Claimant’s constituency office at 16.07. There is some confusion in the witness accounts about this call (and whether there was another call), in particular to whom the Second Defendant spoke during the afternoon. The following summarises the (at times conflicting) evidence:

In his closing submissions, Mr Hudson QC did not set out what findings of fact he contended I should make in relation to the telephone call at 16.07. Ms Wilson submitted that the evidence supported the following factual findings:

At the time the Article was published, the Second Defendant said that he was not in the habit of taking notes. The journalistic practice of taking – and preserving – notes in circumstances like this can prove to be very important. For example, the Second Defendant did not apparently identify the person to whom he said he spoke in the call at 16.07; he could say only that it was a man. It would have been of considerable assistance – both generally and specifically on this point – if the Second Defendant had noted down basic facts of the process of preparing the Article for publication; to whom he had spoken and what they had said. If a journalist or publisher is seeking to rely upon a public interest defence under s.4 Defamation Act 2013, then s/he may well find it of benefit to be able to document the process of investigating and preparing the article for publication. Ultimately, it is for the person who seeks to rely upon a defence of public interest to prove the necessary facts in support of it. This includes proof that the defendant believed that it was in the public interest to publish the statement and that such belief was reasonable.

On the evidence I have, I find it impossible to reach clear conclusions about the call(s) made that afternoon by the Second Defendant to the Claimant’s office. Whilst I am satisfied that there was a call at 16.07, the evidence as a whole cannot support a finding that the Second Defendant had a conversation, in the terms described in his witness statement, with anyone in the Claimant’s office.

Mr Hall was the only viable candidate given that the Second Defendant claimed to have spoken to a man, but I am sure that the Second Defendant did not speak to Mr Hall, for the following reasons:

If, as I find, the Second Defendant did not speak to Mr Hall, I cannot identify another candidate to whom he could have spoken – and Mr Hudson QC has not suggested one. Neither Mr Hall nor Ms Freeney was challenged on his/her evidence that it was just the two of them who were in the office that afternoon. As the evidence clearly supports the fact of a call at 16.07, the most likely explanation is that the call went to voicemail. That finding would also be consistent with Ms Freeney and Mr Hall’s evidence that calls were being left to go to voicemail that afternoon. But, it is not an altogether satisfactory conclusion because I consider that it would be most unusual (even if technically possible) to leave a voicemail that was over 2 minutes long. Neither Mr Hall nor Ms Freeney suggested in their evidence that they had listened to a voicemail message of that duration (the voicemail message Ms Freeney received was described by her as short and not important – see [61(ii)] above) and it was not put to them that they had. The only other explanation is that some other man answered the phone to the Second Defendant in the office that afternoon, but no party is advancing that as a finding that I could or should make.

Ms Wilson cross-examined the Second Defendant on the stages of the online process to join Unite Community (see [20] above). Although not mentioned in his witness statement, at trial the Second Defendant stated that he had gone through some of the stages of applying for Unite Community membership. He said that he had clicked the join button but “did not get very far”. He got to the page on which the applicant was asked for his/her name and address (Stage 4), and said he stopped at this stage. His evidence was somewhat vague as to whether he had in fact entered his name and

I did not find this evidence very convincing. In the Article, the Second Defendant stated (§10) that the Claimant: “would have had to declare herself unwaged”. This supports the conclusion that the Second Defendant had not, prior to publication, investigated fully the online process to see what the Claimant actually had to declare as part of joining Unite Community. This was a significant failure on the Second Defendant’s part. Given that he stated in the Article that the Claimant had “made afalse declaration” (emphasis added (§5 of the Article)), the importance of establishing what the Claimant had declared as part of the joining process was obvious.

Even if the Second Defendant abandoned his ‘dummy run’ of joining Unite

Shortly after publication, in the early hours of 8 April 2017, a Twitter user, Katie Curtis, had challenged the Second Defendant on the Article. In a series of Tweets, Ms Curtis said:

“Here’s the thing yesterday @skwawkbox run an article that a Lab MP had join Unite Community & saying she’d falsely declared she was unemployed.

I wondered if it stipulated whether only unemployed people were eligible & once reading some of the info online it seemed unclear so I thought the only way to see if you’re asked to declare unemployment during the online joining process was to join myself. So here we go…”

Ms Curtis then posted screenshots of the stages of the joining process from the First Defendant’s website (see [20] above):

The Second Defendant Tweeted a response to Ms Curtis on 8 April 2017:

“Deeply flawed. The home page *tells* you UC for unwaged people. By applying to join you’re declaring you’re unwaged. Katie barrel-scraping.”

In his evidence, the Second Defendant confirmed that the reference to Unite membership having provided confirmation was to his own check of the Unite Community Homepage. Ms Wilson put it to the Second Defendant, in crossexamination, that Ms Curtis had – by going through the stages of the membership joining process – done precisely what he should have done before publishing the Article. The Second Defendant disagreed, and said that Ms Curtis did not like The Skwawkbox blog. In my judgment, far from “barrel scraping”, Ms Curtis had identified a point of some importance; without apparent difficulty, she had done the exercise that the Second Defendant had, he said, started but not completed.

The Second Defendant appears to have been satisfied, on the basis of his own knowledge and his investigation of the information about Unite Community on the First Defendant’s website, that it should have been obvious to the Claimant that this membership category was reserved for the unwaged and she was not therefore entitled to join Unite Community. In his witness statement he said:

“I understood from my own knowledge that the concessionary Community membership was restricted to unwaged persons. As part of my checks before publishing the Article, I nevertheless went onto the First Defendant’s website to check that that remained the position. I did this in addition to asking the press officer of the First Defendant for confirmation whether MPs had an exemption from the unwaged rule. When I went to the First Defendant’s website, the landing pages made clear to me that Unite Community was for unwaged people. I was satisfied that it was sufficiently clear on the First Defendant’s website for anyone looking to join Unite Community at the reduced subscription rate that it was for unwaged people only, and certainly to put people on notice that eligibility was an issue they ought to check.”

It may be that the Second Defendant’s existing knowledge of Unite Community influenced his interpretation of the materials on the Unite Community Homepage, and served to confirm his belief that membership was limited to those who were not employed. His responses to Ms Curtis on Twitter also tend to support that conclusion. But, in my judgment the information provided did not make that point clear. Apart from Rule 28.1, the information on the First Defendant’s website on membership eligibility is unclear; it certainly does not admit of only one construction. Whatever view the Second Defendant took of how obvious the eligibility criteria were in sections of the First Defendant’s website, there were two critical points:

The first question was a matter that the Second Defendant needed to put to the Claimant. He had not established the answer to the second, whether by putting it to the Claimant or otherwise.

The Article was published by the Second Defendant – without his having obtained a response or comment from the Claimant – at 18.20 on 7 April 2017. The Second Defendant said in his evidence that if he had received a comment from the Claimant then he would have included it in the Article.

In his witness statement, the Second Defendant explained his decision to publish without waiting for a comment or response from the Claimant:

“The Article was published with a clear view to the public interest. Voting was underway for the General Secretary of the First Defendant, which at that time was the UK’s largest trade union. Given the long and historic links between the trade union movement and the Labour Party, the General Secretary of a large and important union such as the First Defendant can have a wide and far-reaching impact on the direction and makeup of the Labour Party and the British political landscape. Moreover, the contest was widely understood to be a proxy for the right-left battle in the Labour Party, given Len McCluskey’s strong support for Jeremy Corbyn, and main challenger Gerard Coyne’s close alignment with the right of the Labour Party…

With voting already underway, members would be returning their postal ballots steadily on each day that passed up to the closing date of the ballot on 18 April 2018. That method of voting (postal ballots) does not depend on a single polling day, and it was important to get stories out so that as many members as possible had the opportunity to see them before they actually returned their postal vote. Members of the First Defendant, Labour supporters and the wider public had a clear interest in what was happening out of sight and in particular whether the outcome of the election was being influenced by illegitimate means.

My view was that joining the First Defendant in order to cast a vote in the election for General Secretary was legitimate so long as the application was above board, and I actually stated this in the Article… I had myself previously encouraged people to join the First Defendant in order to vote for Len McCluskey…

The Article was in the public interest particularly in circumstances where there were reasonable grounds to suspect that the Claimant, an MP vocal in opposing the First Defendant’s general secretary Len McCluskey, had joined the First Defendant in an ineligible category of membership in order to vote surreptitiously while depriving the First Defendant of the subscription to which it was entitled from a joiner in full time employment.”

The evidence as to extent of publication is that a total of 3,672 people read the Article in the first year that it was available online. 97% of that figure (3,557) accessed the Article in the first three weeks after publication.

The Second Defendant’s blog permitted readers to add their own comments. There were 14 such comments in the period from 19.45 on 7 April 2017 to 07.45 on 9 April 2017. Although a couple of readers’ comments suggested that they had reserved judgment, the majority of comments were negative towards the Claimant. The Claimant has relied particularly upon the following:

The Claimant has also adduced some evidence of publication/republication:

It is sometimes the case that events following publication can shed light on and assist in the determination of issues prior to publication. I have not derived much assistance in resolving the issues I have to decide by post-publication events. In summary, the Defendants make the point that, even after publication, the Claimant still did not come back to the Second Defendant with a comment. The Claimant’s response is that the Article had been published and she had decided to consult solicitors about it. For good measure, the Claimant makes the point that, even when she had provided her response to the allegations in the letter of claim dated 18 April 2017, the Second Defendant did not amend the Article. The letter of claim contained the following statements by the Claimant’s solicitors:

“Our client did not know when she made her application that the Community membership was reserved for the unwaged. She chose the Communitymembership because she was aware of some of their work in her localconstituency. There was nothing in the forms that she completed online to make her believe that the membership was limited in this way. Our client did not, as alleged sign any declaration to the effect that she was unwaged.”

I will need to return to the statement made in the underlined sentence when I deal with the Defendants’ allegations that the Claimant’s alleged dishonesty in the conduct of her claim should disentitle her to any remedy and/or should lead the Court to strike out her claim as an abuse of process (see Section J below [157]-[170]).

The Issues

There is no dispute that the issues are as follows:

Liability for publication

The Second Defendant has admitted responsibility for publication of the Article. The Claimant contends that the First Defendant is also liable for publication on two bases:

Law

At common law, the basic rule is that each person who knowingly participates in the publication of a libel, or causes or authorises or ratifies its publication, is jointly and severally liable Watts -v- Times Newspapers Ltd [1997] QB 650, 670f-h per Hirst LJ; Monir -v- Wood [2018] EWHC 3525 (QB) [135].

In Speight -v- Gosnay (1891) 60 LJQB 231, the Court of Appeal identified four ways in which a person could be liable for the republication of a defamatory statement (per Lopes LJ at p.232):

Consequently, a person who supplies another with information intending or knowing that it is liable to be republished has been held to be prima facie liable for the publication of what s/he has provided: Webster -v- British Gas Services Ltd [2003] EWHC 1188 (QB) [18] per Tugendhat J. In Bataille -v- Newland [2002] EWHC 1692 (QB) Eady J summarised the principle [25]:

“To participate in a publication in such a way as to be liable in accordance with the law of defamation is not, I should emphasise, to be equated with being a source of the information contained within the relevant document. There are various acts that can give rise to legal responsibility, for example, encouraging the primary author, supplying him with information intending or knowing that it will be republished, or, if one is in a position to do so, instructing or authorising him to publish it.”

Importantly, however, “the mere furnishing by one person of some of the materials used by another in the preparation of a libellous article does not constitute a publication of it by the former if, when printed, the article as a whole is something very different from the material so furnished by him: §6.54 Gatley on Libel & Slander (12th edition, Sweet & Maxwell, 2013) citing Howland -v- Blake Manufacturing Co (1892) 156 Mass.R 543.

If the information originally provided for publication was innocent and devoid of a defamatory meaning, then – absent some subsequent approval/ratification – the source or contributor cannot be held liable if the information is subsequently republished in a defamatory form: Samsun Pty Ltd -v- Wily [2000] NSWSC 281 [21] per Kirby J:

“Having made the press release, the defendants may be taken as having intended its dissemination to the news media. However, if, as they contend, the press release was not defamatory of the plaintiffs, then its republication by others in some different form (which may be defamatory) is not their responsibility. In short, responsibility for republication presupposes, not simply the dissemination of material to persons likely to reproduce that material, but that the material disseminated was defamatory.”

But where the original words of the source or contributor are defamatory of the claimant and s/he knows that his words are liable to be republished, it is not necessary to show that the published libel is verbally and literally the identical communication which originated with the defendant provided that the sense and substance or the same defamatory message is conveyed: Dar Al Arkan Real Estate Development Co -v- Al Refai [2013] EWHC 1630 (Comm) [34] per Andrew Smith J.

the Article

The Claimant’s pleaded case in respect of the First Defendant’s liability for publication of the Article is:

“On a date or dates unknown but, it is to be inferred, … on or shortly before 7 April 2017 [the date of publication of the Article], an employee, representative and/or agent of the First Defendant (or more than one person) disclosed to the Second Defendant that:

(1)

the Claimant had become a member of the First Defendant;

(2)

her application had been for a particular category of membership, namely community membership; and

(3)

a complaint about the Claimant’s application had been passed to the First Defendant’s Regional Secretary for the north-east, Karen Reay, and the First

Defendant was conducting an investigation into the Claimant’s application.” I will refer to this as the “Source Information”.

In my judgment, the Claimant has failed to establish that the First Defendant is liable for the publication of the Article as a result of the alleged supply of the Source Information.

the Press Statement

The Claimant’s pleaded case in respect of the First Defendant’s liability for publication of the Press Statement is:

“17B. … by supplying to the Second Defendant [the Press Statement] for publication, caused to be published… the contents of paragraph numbered [14] in the Article…

17C. The First Defendant was aware of the context in which the Press Statement would be published.”

There is no dispute that the First Defendant is vicariously liable for Ms Doyle’s providing the Press Statement to the Second Defendant and, in the Defence, the First Defendant pleaded in response to the Claimant’s case:

“11B. As to paragraph 17B… it is admitted that the First Defendant is responsible for the Publication of the Press Statement.

11C As to paragraph 17C…, the First Defendant was aware of the following context at the time that it published the Press Statement to the Second Defendant:

(a)

The Second Defendant publishes the Skwawkbox blog which had a limited left-wing readership and little traction and coverage with the wider mainstream media.

(b)

The Second Defendant was aware that the Claimant had joined the unwaged section of Unite despite being waged and a complaint had been made about this which was being investigated (as in looked into).

(c)

The Second Defendant proposed to report this fact and proposed to include the Press Statement supplied by the First Defendant in the Article.”

The admission in Paragraph 11B of the Defence is ambiguous. It is not clear whether the admission is of the publication of the Press Statement to the Second Defendant, or its publication in the Article.

Based on Ms Doyle’s evidence as to how she intended her comment to be understood, Mr Hudson QC submitted that the Press Statement had two distinctly separate elements to it corresponding to the two sentences published in §14 of the Article. He contends that the first sentence did not relate to the Claimant. The second sentence did relate to the Claimant and confirmed that a complaint had been received (about the Claimant’s membership of Unite Community) and was being “investigated”. The Press Statement

Based on my factual findings (see [48]-[55] above), I am quite satisfied that the First Defendant is liable for the publication of the Press Statement in the context of the Article.

Meaning (1) Law

There is no dispute over the principles to be applied when determining the natural and ordinary meaning of a publication: Koutsogiannis -v- The Random House Group Limited [2019] EWHC 48 (QB) [11]-[15]. Mr Hudson QC had additionally relied upon the principle that the context of the publication will often affect its meaning: Bukovsky -v- Crown Prosecution Service [2018] 4 WLR 13 [12]-[13]; Stocker -v- Stocker [2019] 2 WLR 1033 [40]-[41].

Where a contributor’s words are included in a publication (“the quote”), and a claimant seeks to sue the contributor for publication of the article, the quote cannot be read in isolation to produce a more injurious meaning than the publication as a whole: Monks -v- Warwick District Council [2009] EWHC 959 (QB) [12]-[14] per Sharp J; Economou -v- De Freitas [2017] EMLR 4 [17] per Warby J; Alsaifi -v- Trinity Mirror plc & Others [2017] EWHC 1444 (QB) [65] per Warby J;. The balance of the publication must be read together with the quote. In Economou, Warby J said [17]:

“A media publication will often include some material for which the [source or contributor] bears responsibility and some for which he bears none. ... Such additional material is likely to affect the meaning of the publication. The additional material may make things worse, in which case the [source or contributor] cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication. A source or contributor cannot be sued for a defamatory meaning which only arises from part of the media publication to which he has contributed: see Monks -v- Warwick District Council [12]-[14] (Sharp J).”.

There is limited utility in ascertaining the meaning of the quote, in isolation. Where it is published as part of a longer article, the rules of meaning prescribe that, in determining the single natural and ordinary meaning, readers must be taken to have read the quote in the context of the article as a whole: Koutsogiannis [12(viii)]. The point made by Warby J in Economou is that if there is a significant variance between the natural and ordinary meaning of the article and the meaning of the quote (taken in isolation), then this is a point that is likely to go to the contributor’s liability for publication of the article as a whole. If the quote, in isolation, bears a meaning that is more defamatory than the resulting meaning of the article as a whole, the contributor is liable only for the resulting meaning. If the quote, in isolation, bears a materially lesser or no defamatory meaning compared to the single meaning the article is found to bear, then (applying the principles in [86]-[89]) the contributor is not liable, by dint of providing a quote, for publication of the article as a whole.

Decision on meaning

The meaning of the Article was resolved by agreement between the parties and recorded, in the consent order of Warby J on 26 July 2018, as follows:

“there are reasonable grounds to suspect that the Claimant chose to join the Community Section of Unite at a concessionary subscription rate knowing that the section was restricted to unwaged persons and that, by joining it, she submitted an application that she knew was false in this respect, and accordingly acted dishonestly in submitting it.”

In addition to her claim that the First Defendant is responsible for publication of the Article, the Claimant claims, in the alternative, that the First Defendant is liable for the publication of the Press Statement, as it appeared in the context of the Article (at §14).

The Claimant contends that, in the context of the Article, the natural and ordinary meaning of the Press Statement is:

“there are grounds to suspect that the Claimant joined the Community Section of Unite on a fraudulent basis by declaring herself unwaged, and accordingly acted dishonestly in submitting her membership application.”

In its Re-Amended Defence, the First Defendant has advanced three possible meanings of the Press Statement:

“a.

In its natural and ordinary meaning, the Press Statement meant and was understood to mean that there are grounds to investigate the complaint that had been made about the Claimant choosing to join the Community section of Unite at a cheaper concessionary subscription rate for unwaged persons.

b.

In the alternative, in its natural and ordinary meaning, the Press Statement meant and was understood to mean that there are grounds to investigate whether the Claimant chose to join the Community section of Unite at a concessionary subscription rate knowing that the section was restricted to unwaged persons and that, by joining it, she submitted an application that she knew was false in this respect, and accordingly acted dishonestly in submitting it.

c.

In the alternative, the Press Statement conveyed the natural and ordinary meaning of the Article as a whole, being the agreed meaning of the Article as approved by the Court. If or to the extent that the Claimant intends to allege a different and more serious meaning at paragraph 19B RAPOC, such allegation is not open to the Claimant, given the agreed meaning which the Court has ordered by way of determination of the preliminary issues.”

The final words of sub-paragraph (c) are a reference to the rule that a contributor cannot be held responsible if the meaning of the article in which his/her quote appears is more injurious than the quote itself: (see [98] above).

Taken in isolation, the quote provided by Ms Doyle on behalf of the First Defendant was highly defamatory (see [96(ii)] above). Although I consider that, read in isolation, Ms Doyle’s quote bore a meaning that was probably more serious than the meaning of the Article as a whole, application of the principle I have identified mean that the First Defendant is liable only for the resulting meaning of the Article as a whole.

Consequently, the meaning for which the First Defendant is responsible, is therefore the meaning of the Article as a whole:

“there are reasonable grounds to suspect that the Claimant chose to join the Community Section of Unite at a concessionary subscription rate knowing that the section was restricted to unwaged persons and that, by joining it, she submitted an application that she knew was false in this respect, and accordingly acted dishonestly in submitting it.”

Serious Harm(1) Law

Section 1(1) of the Defamation Act 2013 provides:

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

This provision was considered by the Supreme Court in Lachaux -v- Independent Print Ltd [2019] 3 WLR 18. Although, the Supreme Court agreed with the ultimate decision of the Court of Appeal dismissing the defendant’s appeal ([2018] QB 594), it disagreed with its reasoning and held that Warby J’s analysis of the law, at first instance ([2016] QB 402), was “coherent and correct, for substantially the reasons he gave” [20] per Lord Sumption. The Supreme Court held:

At first instance in Lachaux, Warby J expressed his conclusion on s.1 as follows:

Finally, and consistently with Lord Sumption’s analysis in Lachaux, there are three further relevant principles:

Submissions

Ms Wilson submits that the extent of publication of the Article is significant and that the Court should infer that within such extensive publication, the Article would have been published to a significant number of people whose opinions of the Claimant were affected in a seriously adverse way as a result.

She identified the following particular parts of the evidence which she contends supports the drawing of this inference:

Mr Hudson QC for the Defendants submitted that The Skwawkbox was a specialised political blog with a limited readership. It had a transparent editorial position – to the left wing of the Labour Party - with which its readers would have been fully familiar.

He argued that the Claimant has not proved any facts which establish that her reputation suffered serious harm as a result of publication of the Article. On the contrary, he contends:

Decision on Serious Harm

I am satisfied that the Claimant has demonstrated, on the balance of probabilities, publication of the Article has caused serious harm to her reputation. I reach this conclusion having regard to the following matters, including particularly the evidence of what happened after publication, and by drawing inferences from the totality of the evidence as to the harm that has been caused by the publication of the Article.

Defences

Truth (1) Law

The old common law defence of justification has been repealed and replaced with a statutory defence of truth. Section 2(1) of the Defamation Act 2013 provides:

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

The meaning that the Defendants seek to prove substantially true is set out in [100] above. This is a Chase level 2 meaning of “reasonable grounds to suspect” (for an explanation of the Chase levels, see Koutsogiannis [13]).

The principles applicable to, and parameters of, a defence of truth of a Chase level 2 meaning have been identified by the Court of Appeal in King -v- Telegraph Group Ltd [2004] EMLR 23 and Miller -v- Associated Newspapers Ltd [2014] EWCA Civ 39.

In Bokova -v- Associated Newspapers Ltd [2019] QB 861 I explained how circumstantial evidence might be admissible to prove the truth of a Chase level 2 meaning. This was at the pleading stage, but the same principles would apply to the evidence ultimately relied upon at trial.

In Miller, Moore-Bick LJ (giving the judgment of the Court) summarised the task of the trial judge when assessing a defence of truth to a Chase level 2 allegation [15]:

“It follows from … the fact that the existence of grounds for suspicion is to be judged objectively, that the question for the court when considering a defence of justification is whether, viewed at the date of publication, the claimant had behaved in a way that would give a reasonable person grounds for suspecting him of the wrongdoing in question. That much was not in dispute. Nor, subject to one point, was it in dispute that the reasonable person is to be taken to be aware of all the primary facts and matters subsisting at the date of publication: see King, principles

Explaining the importance that it was an assessment of the totality of the evidence, Moore-Bick LJ added [46]:

“… in seeking to justify a Chase Level 2 imputation, both parties are entitled to rely on facts as they were at the date of publication, whether they knew them or not…”

The task for the Court is to make the objective assessment of the evidence relied upon as giving rise to reasonable grounds to suspect at the date of publication, excluding from consideration events that occur subsequently – described as the ‘rule against hindsight’ [16]. On this point, the Judge explained later in the judgment [27]:

“… it is necessary to draw a distinction between events occurring after the date of publication and statements, whenever made, which tend to prove or disprove the existence of facts subsisting at the date of publication. The latter are admissible. The former are not.”

The Court rejected the newspaper appellant’s criticisms of the Judge’s acceptance of explanations given, at trial, by the Claimant for his actions [20]:

“… [A] defence of this kind is to be determined objectively by reference to the facts at the date of publication. I agree… that attempts by a claimant after the event to explain away his actions cannot help, but I can see no reason why evidence given a trial which sheds light on matters that occurred before the date of publication should be excluded just because it comes from the claimant, although that might be a reason for looking at it with some care.”

In addition to the guidance from King (set out in [117] above),based on the above analysis, I derive the following principles from Miller as to the proper approach to a defence of truth to a Chase level 2 meaning:

An important difference, therefore, between a Chase level 2 truth defence, under s.2 Defamation Act 2013, and a public interest defence, under s.4, is that, whilst the publisher’s belief as to what was proved by the evidence s/he had is highly material to the s.4 defence, it is irrelevant to a s.2 defence.

Finally, Mr Hudson QC has relied upon the following further general principles as to the assessment of a truth defence:

Submissions

Mr Hudson QC submits on behalf of the Defendants that the Court should find that they have demonstrated the substantial truth of the meaning. He contends:

Supplementing their closing written submissions, the Defendants have provided the Court with a “Schedule of Primary Facts and Matters” upon which they rely in support of their truth defence, but have identified the following particular submissions as to the objective facts:

In all the relevant circumstances, Mr Hudson QC contends a reasonable person would suspect that the Claimant knew that she was not eligible for the special discounted rate category or, at the very least, would have checked her eligibility before submitting her application and thereby declaring herself eligible. It would have been apparent to a person who carried out even the most cursory of checks that the special discounted rate category was only available to people not working or in further education. He argues that the fact that, during the application process, the Claimant had to select “Community member” in contrast to a regular member or “Retired”; that she was given a link to click “For more information” about “join[ing] as a Community Member”; that her annual direct debit was only £26.04 (rather than £169 per annum); and that she had to click a box confirming that she would abide by the Union’s rules – which contained a hyperlink to the Union’s rules, which had a contents page which listed “RULE 28 COMMUNITY/STUDENT MEMBERS”, all meant that a reasonable person would expect the Claimant (a Labour MP) to check her eligibility for concessionary subscription rate to the Union, before signing up and thereby declaring that she was eligible.

The Defendants also submit that a reasonable person would consider that the Claimant’s conduct after joining Unite was consistent with her knowing that she was not eligible for the special discounted rate category.

On behalf of the Claimant, Ms Wilson has submitted that the Court should reject the Defendants’ defence of truth. Taking account of the King principles, including the conduct rule, the evidence cannot support a finding that that meaning is substantially true; it points the other way. Ms Wilson made the following points:

Decision on truth

In my judgment the key facts – and my findings – are these:

Assessed objectively, do these facts, individually, or collectively provide reasonable grounds to suspect that the Claimant chose to join the Community Section of Unite at a concessionary subscription rate knowing that the section was restricted to unwaged persons and that, by joining it, she submitted an application that she knew was false in this respect, and accordingly acted dishonestly in submitting it? In my judgment the plain answer is no.

A reasonable person, asked to make this assessment, would quickly alight on the question of importance: what evidence is there that provides reasonable grounds to suspect that the Claimant did know that membership of Unite Community was restricted to the unwaged and, against that, what evidence is there that suggests that she did not know.

As to stage one of this exercise, I accept Ms Wilson’s submission that one of the fundamental problems with the Defendants’ defence of truth is that it largely rests on an allegation that the Claimant should have known that she was not eligible for Unite Community membership. Negligence is very unlikely to provide an objective basis upon which reasonably to suspect dishonesty. The publicly available information alone would not satisfy the conduct rule and this is not a case where the wealth of publicly available information – making it obvious, beyond argument, that the Claimant was not eligible for Unite Community membership – leads to a conclusion that the Claimant must have known that she was not eligible and therefore that there are grounds to suspect that she did know that she was not eligible. But even if I were wrong in my assessment of whether it was clear in the material published by the First Defendant about eligibility for Unite Community membership, the material fact is the Claimant did not read or view this material before she joined. So, the Defendants’ case would have to be not only that she should have read the material, but that also, having read it, she should have reached the conclusion that she was not eligible to join Unite Community.

At stage two in the reasonable person’s assessment, there is, by comparison, an abundance of evidence providing objective grounds to suspect that the Claimant did not know that she was ineligible to join Unite Community: the suggestion to join Unite Community came from Ruth Smeeth (someone who clearly believed that the Claimant (and others in The Birthday Club WhatsApp Group)) were eligible to join Unite Community; the Claimant completed the application process within 10 minutes shortly thereafter; the Claimant had not read or viewed materials about Unite Community and was relying upon her own understanding of membership eligibility; the online joining process did not contain any indication of the restrictions on eligibility on joining Unite Community; the Claimant was not required to declare that she had read or met the eligibility criteria; nothing she was sent after joining warned her that she was ineligible; and, when it was finally pointed out to her on 1 March 2017 that “as a paid worker

I am satisfied that a reasonable person would, without difficulty, conclude that there were no reasonable grounds upon which to suspect the Claimant of the wrongdoing identified in the meaning that the Defendants seek to defend as true. Specifically, there are in my judgment no reasonable grounds to suspect the Claimant of any form of dishonesty in relation to her joining Unite Community. I therefore reject the Defendants’ defence of truth.

Publication on a matter of public interest (1) Law

Section 4 of the Defamation Act 2013 provides (as far as material):

There have been relatively few cases in which the s.4 defence has been specifically considered. The principal ones are Economou -v- de Freitas [2019] EMLR 7 and Serafin -v- Malkiewicz [2019] EMLR 21. I derive the following principles from the authorities:

In the present case, I have found that both Defendants are liable for publication of the Article. There was some discussion as to whether, if the Second Defendant successfully established a s.4 defence, the First Defendant needed separately to do so. The argument that the First Defendant does not need to do so is premised on a submission that the defence is a form of qualified privilege. If the Second Defendant establishes that the occasion on which the Article was published was privileged, then – so it is argued – the First Defendant benefits from that protection too. I am very doubtful that this analysis – even if it applied to the common law Reynolds defence (a proposition I would also doubt) – still holds good after the public interest defence has been put on a statutory footing.

Given the decisions I have reached on the facts of this case, I have not needed to resolve the point whether, where two or more people are liable for the publication of a defamatory statement, each must independently establish his/her own s.4 defence. Given that a defendant relying upon the defence must prove that s/he “reasonably believed that publishing the statement complained of was in the public interest” (s.4(1)(b)), that would appear to require each defendant that relies upon the defence individually to satisfy the requirements. There may be interesting arguments where several people are liable for the publication of an article (e.g. contributor, journalist, editor, publisher). It is not hard to imagine circumstances where the nature of a person’s participation or authorisation of publication renders him/her liable for publication of a statement but in circumstances in which that person may well not have given specific consideration to whether the publication of a particular statement was in the public interest (e.g. a commercial publisher or editor of a substantial publication who may not have specifically addressed his/her mind to particular articles). These issues would best be resolved in a case where the point arises for direct determination.

Submissions

Mr Hudson QC submits:

The Claimant’s case on s.4(1)(a) – whether the statement was, or formed part of, a statement on a matter of public interest – is set out in her Amended Reply. She admits that the following parts of the Article were matters of public interest:

The Claimant denied that her application and subsequent membership of Unite Community was a matter of public interest.

As to reasonable belief that it was in the public interest to publish the Article, Ms Wilson submits:

Ms Wilson has also advanced several submissions suggesting that the Second Defendant has tailored his evidence in light of the disclosure of The Birthday Club WhatsApp messages and that he has lied about the existence of the sources for the article, or at least what they had told him. She has also contended that the Court should find that the Second Defendant lied in his evidence about having spoken to someone at the Claimant’s office prior to publication and that this lie undermines his credibility generally on other matters as to how he came to publish the Article. She advanced other matters which she said further damaged the Second Defendant’s credibility.

Save in the limited respects set out in Section D above, this is not a case where the credibility of the Second Defendant ultimately has assisted me in determining the facts necessary to make a decision, so I have not needed to resolve these various points made by Ms Wilson.

Decision on publication on a matter of public interest

Statement on a matter of public interest

Applying the principles I have identified ([138(vi)] above), I am satisfied that the Article was on a matter of public interest. Broadly, I accept the Defendants’ submissions (see [141(i)-(ii)] above). The Claimant was an elected member of Parliament. In her July 2016 Tweet, the Claimant had publicly suggested that people should join the First Defendant in order to vote out Mr McCluskey. Her opposition to Mr McCluskey was to his (and the First Defendant’s) influence over the Labour Party, which the Claimant regarded as negative. The Claimant had publicly opposed the election of Mr Corbyn as leader of the Labour Party. Although, ordinarily a person’s decision to join a union would be a personal and private matter, the Claimant’s position as an MP; her prior encouragement of others to join the First Defendant to vote to

Belief that publication was in the public interest (i) The First Defendant

The issue here relates to Ms Doyle’s provision of the Press Statement for publication as part of the Article by the First Defendant.

I have set out Ms Doyle’s evidence relating to her decision to provide the Press Statement (see [49]-[53] above). Contrary to Mr Hudson QC’s submissions, she does not in fact address the issue of whether she believed, at the time, that publication of the Press Statement she gave to the Second Defendant, as part of the Article, was in the public interest. On the contrary, she stated that she did not address her mind at all to the issue of whether she ought to provide to the Second Defendant the information that the Claimant objected was a breach of the First Defendant’s data protection obligations. In consequence, the First Defendant has not established that Ms Doyle believed that publication of the Press Statement she gave to the Second Defendant, as part of the Article, was in the public interest. I have no evidence that any other person at the First Defendant considered whether publication of the Press Statement in the Article to be published by the Second Defendant was in the public interest.

The Second Defendant

I accept the Second Defendant’s evidence (see [77] above) that he believed that publication of the Article was in the public interest.

Reasonableness of the belief that publication was in the public interest (i) The First Defendant

The consequence of my finding that the First Defendant has failed to prove that Ms Doyle believed that publication was in the public interest (see [149] above) is that the First Defendant’s reliance upon the s.4 defence fails and it is not necessary for me to consider whether, had she had such a belief, that belief was reasonable. In case I am wrong in my finding as to the existence of the belief, I will shortly state my conclusions on the issue of reasonableness.

On the evidence, I would not have been satisfied that a belief by Ms Doyle that publication was in the public interest was reasonable:

The Second Defendant

Whatever information the Second Defendant had been provided by his sources, the single most important fact in the whole Article was the statement that the Claimant had made a “false declaration” that she was unwaged in order to join Unite Community (Article §§5 and 17). The Second Defendant had failed to establish whether, as part of the online joining process, an applicant was required to state that s/he was unwaged or otherwise declare that s/he was eligible for membership of Unite Community. Investigation of this point was both basic and straightforward; its importance was obvious. Appreciating the importance, the Second Defendant completed some of the stages of the online process in order to see what information applicants were asked to provide. Although I am not satisfied with the explanation he provided, the Second Defendant did not complete the online process. Even if he considered that he had a good reason for not completing it himself, the Second Defendant could easily and should have sought the answer from the First Defendant (a factor that would assume even greater importance if he failed to get a response from the Claimant). He did not do so. This is not the impermissible application of hindsight or an issue for editorial judgment; this was a basic avenue of factual investigation that the Second Defendant considered was important at the time, but failed to complete. Worse, he stated – as a fact – twice in the Article that the Claimant had made a false declaration to join Unite Community. The Second Defendant did not have any evidence to support that allegation and he had abandoned the investigation he had started which, if completed, would have established whether it was true. It can never be in the public interest for a journalist to misrepresent in an article the information or evidence that s/he has obtained.

In my judgment, the Second Defendant also failed to give the Claimant an adequate or fair opportunity to provide any comment or rebuttal of the allegations that the Second Defendant intended to publish. There are two main reasons why the Second Defendant failed to get a response from the Claimant prior to publication: (1) his failure fairly to put the allegations to her; and (2) a self-imposed and unreasonable publication deadline of the evening of 7 April 2017.

Stepping back, although bearing only a Chase level 2 meaning, the allegation made against the Claimant was serious; it touched upon her honesty and integrity. The Second Defendant’s efforts to verify the information were seriously deficient. He tried, but failed, to establish that the First Defendant’s online process for joining Unite Community did not require any declaration that the applicant was unwaged; yet the Article stated directly the contrary. This was a fundamental plank of the defamatory allegation made against the Claimant. The Second Defendant failed fairly to put the allegations that he included in the Article to the Claimant prior to publication. There was insufficient urgency to justify publication without giving her such an opportunity. In consequence, of both the failure fairly to put the allegations to the Claimant and the Second Defendant’s failure to establish basic facts as to the online membership process, the Article did not contain either the Claimant’s side of the story or facts that could fairly be presented in her defence. Against that, I am satisfied that the Article was published on a matter of significant public interest; it was not sensationalist and the Claimant was an elected MP.

My overall assessment of those factors is that the Second Defendant has not demonstrated that his belief that publication of the Article was in the public interest was reasonable. For the reasons I have given, the s.4 defence of the Second Defendant fails. J. Abuse of Process

Although I have dismissed both substantive defences, the Defendants submit that the Claimant has made dishonest claims in pursuit of her claim, that this conduct amounts

The Defendants set out their case on abuse of process in Paragraphs 27-46 of the ReAmended Defence dated 25 September 2019 (set out in Appendix 3). By comparison, the defences of both truth and public interest were pleaded in fewer paragraphs. The allegations are dealt with, at length, in paragraphs 90-223 in Mr Beckett’s witness statement. Originally, the Defendants argued that the Claimant’s alleged dishonesty justified striking out her claim. As I have noted, their position at the conclusion of the trial was that, if her claim succeeded on liability, she should be awarded only nominal damages.

Law

I derive the following principles from the authorities:

In support of their submission that, if successful in her claim, the Claimant should be awarded nominal damages, the Defendants have relied principally on Tugendhat J’s decision in Joseph -v- Spiller [2012] EWHC 2958 (QB). In that claim for libel, the Judge found for the claimant – rejecting the defence of justification – but also held that the claimant had fabricated a claim for special damages. In consequence of what he found to be an abuse of process, and applying Summers, the Judge dismissed the claim for special damages and made only a nominal award for general damages: [177]-[178].

In a subsequent judgment on costs - [2012] EWHC 3278 (QB) - Tugendhat J explained that his decision to award only nominal damages was because he had concluded “it would be an affront to justice if [the claimant] were to be awarded more than a nominal sum for general damages”. The Judge referred ([4]-[7]) to several cases showing that the conduct of the claimant in the case was a factor relevant to damages.

Mr Hudson QC has also relied upon FlyMeNow -v- Quick Air [2016] EWHC 3197 (QB), in which Warby J awarded a claimant company general damages of £10 for a libel suggesting that it was insolvent. Whilst Mr Hudson is correct that Warby J did accept the principle from Joseph -v- Spiller that damages could be reduced to take account of dishonest statements made by the party in the litigation [128], that was not the only consideration that had a bearing on the ultimate award of damages. It is not right to say that the award of £10 was a “nominal award” following application of the Joseph -v- Spiller principle. The Judge found both that partial justification “substantially reduc[ed] what would otherwise be the award” [126] and that the defendant had also proved during the trial “that the claimant behaved disgracefully in fobbing it off with a series of dishonest excuses” [127], evidence that was admissible in mitigation of damages under the principle in Pamplin -v- Express Newspapers Ltd [1988] 1 WLR 116.

Facts

To understand the Defendants’ submissions that the Claimant has conducted her claim dishonestly and should therefore be awarded only nominal damages, it is necessary to set out some of the litigation history. I shall do this as briefly as I can.

The allegations of lying/dishonesty made against the Claimant

By reference to the Re-Amended Defence (“RD”), the Defendants make the following allegations against the Claimant:

Submissions

Mr Hudson QC did not pull his punches in his opening submissions at the trial on behalf of the Defendants. He submitted that the evidence that the Court would hear during the trial would establish that the Claimant had acted dishonestly and deceitfully in her conduct of this litigation by lying about the circumstances in which she came to join Unite and then trying to cover up those lies. Mr Hudson said that the Claimant’s dishonesty “permeates through every part of the case” and “regrettably … she is not fit to be an MP”.

In his closing submissions, Mr Hudson QC has submitted that the evidence during the trial demonstrates that the Claimant has made “untruthful and dishonest statements” in (a) her letters of claim; (b) her statements of case; (c) her correspondence; and (d) in her witness statements. The Defendants contend that, if successful in her claim, the Claimant’s dishonest conduct is such that it would be “an affront to justice if [she] were awarded anything other than nominal damages”.

Ms Wilson, on behalf of the Claimant, submits that the disclosure of the WhatsApp messages was in accordance with Court-ordered directions, and steps taken in the litigation from April 2018 were consistent with the Claimant having found the messages when she said that she had, and taking steps accordingly. The evidence clearly demonstrates that the Claimant provided her legal team with the WhatsApp messages on 22 March 2018. From that time on, the notion of seeking to conceal them in the litigation makes no sense unless the Defendants were to go so far as to contend that the Claimant’s legal team were not going to disclose them as part of standard disclosure. The fact that the date for standard disclosure was over a year later was not the Claimant’s fault, it is argued.

Ms Wilson accepted that statements of case and witness statements should be absolutely accurate, but mistakes are made. She added:

“The Court may consider that Ms Turley’s lawyers should have taken different steps. But that is not probative of any dishonesty on her part.”

Decision on Abuse of Process

I can state my conclusions shortly:

I therefore reject the Defendants’ contention that the Claimant has made dishonest statements in pursuit of her claim or that she has been guilty of abuse of process.

The relevant principles were gathered by Warby J in Barron -v- Vines [2016] EWHC 1226 (QB):

Mr Hudson QC has also relied upon the following further principles:

Ms Wilson relied upon the principle, from Cairns -v- Modi, that following a trial where a defendant has advanced a justification defence which has failed, particularly where the allegations made against the claimant at trial has received widespread media coverage, there is a need for the damages to send a clear message that the allegations were without foundation. Lord Judge LCJ explained the principles as follows:

Ms Wilson has relied upon awards made in three earlies cases as providing a general guide:

To those comparators, Mr Hudson added:

It is common ground that I should make one award of damages against the Defendants. I am compensating the Claimant for the damage caused by the publication of the Article, for the publication of which I have held both Defendants liable.

Evidence

Much of the evidence relevant to the assessment of damages is contained earlier in the judgment. In her witness statement, the Claimant described the effect on her of the publication of the Article:

“For anyone these allegations would have been upsetting but as a Member of Parliament the Article’s allegation is particularly serious and has the potential to cause a significant amount of damage to my reputation and my career. While I am quite robust, as you have to be as an MP, such an attack on my integrity was distressing… The members of my local branch were no doubt a key target audience and it is clear to me that this article was published as an attempt to have me de-selected as, had there not been a snap General Election, it is likely that my selection process would have been taking place in the near future. This was part of a wider attempt to destabilise and undermine MPs who had not supported Jeremy Corbyn by turning members against them… The Article made me feel bullied and undermined. They were trying to create a picture of me that was just not true. I was helpless and felt that if I attempted to respond by media statements I would have likely just fuelled the allegations and mad more people aware of them. It just felt as if The Skwawkbox blog had decided it could publish whatever it liked and no-one would be able to do anything about it. I feel angered and insulted and it adds to my sense of outrage that Skwawkbox could say whatever it liked on its blog with no sense of accountability. It is extremely frustrating that even after Mr Walker has seen all the documents in these proceedings, he has not amended or apologised for the Article and it remains on his website today… It has now been two years since the publication of the Article and the Article still remains on the internet and I had had no correction and no apology. For two years the article with the very serious allegations against me has been out there and it has not been withdrawn or corrected, it feels that some members of the public will believe the allegations are true…”

The Claimant was not challenged on any of this evidence when cross-examined at the trial. Although the Claimant was generally resilient when she was cross-examined, there were occasions when she was distressed.

The Defendants did not require the Claimant’s husband, Jonathan Keenan, to be crossexamined. His evidence was:

“Anna was incredibly upset and angry when The Skwawkbox article was published. She was clearly devastated about it. Anna was constantly worried about the article and had sleepless nights about it. She talked about the article constantly with me after its publication. It was like a body blow for her and she felt bullied by being targeted in the article. Anna was very worried that people were going to believe Skwawkbox’s lies. She became increasingly concerned about this as she got closer to the General Election. She was worried that people who read the article would believe it as it was still on TheSkwawkbox website.

Anna was completely wiped out, down and devastated… Without a doubt, the stress caused by the article contributed to Anna’s anxiety and her distressed state at the time … Anna has been stressed about The Skwawkbox article ever since its publication. This is a source of constant anxiety for her and she talks about it to me frequently…”

Submissions on damages

In his closing submissions, Mr Hudson QC contended that the Court should award no more than £10,000:

In her closing submissions on behalf of the Claimant, Ms Wilson submitted that “the aggravation from the conduct of the Defence is of the highest order of magnitude. It could hardly be greater.” She referred to the following factors which she argued demonstrated that the Defendants had “made a calculated decision to inflict maximum damage on the Claimant, come what may”:

Decision on damages

In my judgment, although a Chase level 2 imputation, this was a serious allegation, particularly to make against an MP. It called into question the Claimant’s honesty and integrity. The scale of original publication, whilst not at the level of a national newspaper, was nevertheless substantial. There is clear evidence of serious harm to the Claimant’s reputation and the grapevine effect in operation in this case. The Second Defendant has continued to publish the Article and there has been no retraction, amendment or apology to mitigate the damage to the Claimant’s reputation or to provide any element of vindication. The award of damages (and this judgment) will have to provide that. The Claimant’s evidence as to the distress caused by publication was not challenged by the Defendants. I have no doubt that she found the trial – particularly her own cross-examination – to be humiliating and, at points, distressing.

The Defendants’ conduct during the trial has seriously aggravated the harm to the Claimant’s reputation and her distress. Mr Hudson QC’s claim, in opening, that the evidence would show that the Claimant was “not fit to be an MP” was a memorable phrase that was picked up in most media reports of the trial. Many reports have been published detailing the Defendants’ claims that the Claimant was dishonest. In the event, I have dismissed the Defendants’ defence of truth and their claim that the Claimant had conducted her claim dishonestly. The platform on which it was claimed that the Claimant was dishonest and not fit to be an MP has collapsed. Not only does this conduct aggravate the damages (for the reasons explained by Lord Judge LCJ, in Cairns -v- Modi) it makes the vindicatory function of damages particularly important in this case. Although this judgment may serve to vindicate the Claimant, its effectiveness in doing so will depend on the number of people who read it, or read reports of it. In most cases, effective and lasting vindication is most likely to come, as Lord Judge recognised, from the size of the award.

I accept that the allegation was not one of guilt, but of reasonable grounds to suspect, but that really only goes to the first of the purposes of damages’ awards: harm to reputation. I also accept that the Court must retain a sense of proportion when fixing the appropriate sum for damages. I also consider that I should make a small reduction for the way that the Claimant conducted the proceedings. Her prolonged failure to disclose the true circumstances in which she joined Unite Community and The Birthday Club WhatsApp messages was the main cause of the Defendants’ suspicions and later allegations that she had been dishonest in the conduct of her claim. A prompt and candid disclosure of the messages when they had been discovered in March 2018 may well have avoided this becoming such an acrimonious side issue. Although I have dismissed the claims that the Claimant acted dishonestly in the conduct of her claim, she did bring suspicion on herself by the failures I have identified. I reject the Defendants’ submissions that the Claimant’s abuse of Mr McCluskey in her Tweet in 2016 has any mitigating effect on damages. Finally, although I have considered the comparator cases that were cited to me, they are really only helpful to the extent that they identify the application of the key principles. Every case is different. In Monir -v- Wood for example, there was no attempt by the defendant to defend the allegation as true.

Assessing these various factors and applying the legal principles I have identified, the sum in damages I award is £75,000. The figure includes all elements of aggravation.

Other remedies

In her Claim Form and Particulars of Claim, the Claimant seeks two further remedies if she is granted judgment on her claim:

Neither party has addressed submissions to me on whether, and if so in what terms, the Court should grant an injunction. I invite the parties’ submissions on this point, if it is not dealt with by agreement between them.

s.12 Defamation Act 2013 provides:

An order under s.12 is discretionary. As to whether the Court should grant an order in this case, in their closing submissions, the Defendants simply said that submissions on this issue would be made following judgment. Subject to those submissions, my preliminary view is that this is a case where an order under s.12 is appropriate and that the order should require publication of the summary by the Second Defendant on The Skwawkbox. This is where the Article was (and has continued to be) published. Again, subject to further submissions, I do not consider that there should be an order requiring the First Defendant independently to publish a summary of the judgment. If the parties cannot reach agreement as to any order under s.12, I will consider further submissions on the points of dispute.

As regular readers of this blog will know, the contest for the position of General Secretary of Unite is underway at the moment and the campaign of challenger Gerard Coyne has been criticised for its smear-tactics and a breach of the Data Protection Act (DPA) that Coyne admitted on national radio but claimed ‘was agreed’ – which showed a poor understanding of the law, as only ‘data subjects’ can agree to data they provided to one organisation being used by someone else.

Coyne also claimed that use of the data had ‘concluded’, but this was also untrue, as further emails and texts were sent to non-Unite members this week.

It appears that these are not the limits of the lengths Labour’s right-wing faction will go to in their efforts to lever in a candidate that they hope can undermine Labour leader Jeremy Corbyn.

The SKWAWKBOX has learned that substantial numbers of right-wingers joined Unite’s ‘Community’ section (UC) before the January deadline to be entitled to vote in the leadership ballot. Unite Community membership costs only 50p a week, as it is exclusively for the unwaged.

However, many of those who joined UC to vote for Gerard Coyne are not unwaged – and therefore made a false declaration in order to do so.

Not only that, but one of them – the visible tip of the iceberg, so to speak – is according to sources, a prominent Progress MP with a track record of contempt for Unite’s incumbent General Secretary Len McCluskey.

In July last year, Anna Turley – a spokesperson for Progress, an extreme anti-Corbyn faction at the heart of much of the agitation against him – perhaps frustrated by Len McCluskey’s continued, steadfast support for the Labour leader, urged a Twitter contact to join Unite in what has become an infamous Tweet:

It’s safe to say she’s extremely invested in McCluskey’s removal. Enough, if reports are correct, to join in order to vote against him – as she appears to have done.

However, she has been reported to the regional office for the way in which she did so.

Joining Unite costs around £12 a month and it appears that Ms Turley was keen to do so as economically as possible and save £10 a month by joining UC instead of as a full union member – which means she would have had to declare herself unwaged.

The SKWAWKBOX understands that an official complaint has been sent to Unite’s Regional Secretary for the north-east, Karen Reay.

Ms Turley’s office was contacted this afternoon to see whether it wished to comment on the matter but has, so far, declined to make any comment. Ms Turley is also a full member of the separate union Community, but this is coincidental and is not at issue here.

The McCluskey campaign was also contacted but did not wish to comment on what it said was a matter for the union.

A Unite spokesperson today confirmed that there exists no exemption for an MP to join UC and issued the following statement:

“Unite welcomes new members but anyone joining on a fraudulent basis will prompt an investigation. A complaint has been received and is being investigated.”

If the complaint is upheld and Ms Turley has, in plain words or by omission, declared herself unwaged in order to join a low-cost section of the union, it speaks volumes for the desperation of the Labour right to remove Len McCluskey as a route to toppling Labour leader Jeremy Corbyn – and of the principles they are prepared to forsake in order to achieve that end.

Joining Unite in order to participate in the General Secretary ballot is legitimate and some are known to have done so to support McCluskey. However, making a false declaration in order to do so ‘on the cheap’ is certainly not legitimate and such applications need to be routed out and their votes invalidated.

The SKWAWKBOX urges Unite to investigate all applications for Unite Community membership and to not only expel but also expose those who have done so fraudulently, as this is a matter of huge interest to the union’s 1.4 million members, over 500,000 Labour Party members and the public at large.

The Claimant has abused the Court’s process by making untrue and dishonest statements, including statements verified by a statement of truth. The Defendants rely on the Claimant’s dishonest and abusive conduct in diminution, or extinction, of any damages that the Court might otherwise award to the Claimant.

The Claimant has made false statements in support of her claim. She first did so in an attempt to conceal the true circumstances in which she came to apply to join the Community section of the 1^st Defendant and so as to claim that she kept that application confidential to her husband. Her false statements included untrue and dishonest statements verified by statements of truth. Once the truthfulness of those statements was questioned by the Defendants, the Claimant made further untrue statements, including a statement verified by a statement of truth, in an attempt to persuade the Court, in the course of apologising to it, that her earlier untruthfulness was “entirely innocent”. In so doing, the Claimant has abused the Court’s process.

If, which is denied, the Claimant would otherwise be entitled to damages, such damages should be no more than nominal damages, or refused where damages are within the Court’s discretion.

On 18 April 2017, the Claimant sent separate letters of claim, through her solicitors, to the 1^st and 2^nd Defendants pursuant to the Pre-Action Protocol for Defamation. Each letter of claim incorporated the same statement:

This statement was false, and the Claimant knew that it was false. The Claimant knew when she made her application that Unite Community membership was reserved for the unwaged. The Claimant knew that the reason that she chose Community membership was not because she was aware of some of their work in her local constituency.

On 26 January 2018, the Claimant issued a claim form, to which were attached Particulars of Claim verified by a statement of truth signed by her solicitor on (as her solicitor has confirmed) the Claimant’s specific authority. At paragraphs 4-6, the Claimant pleaded her case as to the alleged circumstances in which she came to apply to join the Community section of the 1^st Defendant:

The following statements made by the Claimant, and verified by a statement of truth were knowingly false and dishonest: (i) that she came to join the Community section of the 1^st Defendant on her own initiative by searching on Google for how to join it after she had learnt of its activities in her constituency; and (ii) that she not had discussed (a) her membership application to Unite; or (b) the fact that she had joined Unite, with anyone other than her husband (after she joined, as she has stated).

The Claimant made these false statements about the circumstances in which she came to join the Community section of the 1^st Defendant in order to conceal the true position that her decision to apply to the Community section of the 1^st Defendant was prompted by a discussion (to which the Claimant was a party) within a secretive WhatsApp group named the “Birthday Club” and that she had not wanted Unite to notice that she had tried to join/joined the 1^st Defendant. The Birthday Club was made up of 51 (then) Labour Party MPs opposed to the direction of the Labour Party and its Leader (some of whom, including its administrator, subsequently left the Labour Party to oppose it).

On or about 5 December 2016 members of the Birthday Club (including the Claimant) discussed a plan which amounted to a concerted and clandestine initiative by these Labour MPs to interfere with the internal affairs of an affiliated trade union, as an indirect route to a successful “coup” against the Leader of the Labour Party. The Claimant wanted to conceal the true circumstances in which she joined the 1^st Defendant because they involved a covert plan by a number of Labour MPs (including the Claimant) to acquire votes in the newly announced internal election for Unite General Secretary by joining a section of the 1^st Defendant that they believed they could join surreptitiously and without the usual scrutiny and requirement to identify their employment status and/or occupation which would lead to them being identified as Labour MPs. It is reasonable to infer that they did so as they wished to disguise the fact that their aim was not to address any issues internal to the affiliated union but for the sole purpose of preparing the ground for deposing the Leader of the Labour Party by seeking to oust the incumbent General Secretary, and obtain a replacement more compatible with their political agenda.

The Claimant no doubt appreciated that the exposure of such a plan to join the 1^st Defendant risked adverse consequences within the Labour movement for herself and her like-minded colleagues within the Birthday Club.

Her conduct was rendered more serious by the slow and evasive manner in which her false and misleading statements came to be corrected.

Aware of the need to explain her false statements, and aware that her honesty was now in question with regard to her past statements, the Claimant resorted to making a further false statement in her witness statement, verified by false statements of truth dated 28 May 2019 and 19 June 2019 (referred to hereafter as her witness statement), in her effort to persuade the Court that her previous untruthfulness was “entirely innocent”.

In her witness statement, the Claimant stated that:

That statement is false. It is untrue that the Claimant remained in hospital for six months, and her explanation that “with all that happened” she made her mistake in the month following her discharge from a six-month hospital admission is false. She chose to conceal the true reason that she joined the Community section of the 1^st Defendant by stating that “She chose the Community membership because she was aware of some of their work in her local constituency” in each of her letters of claim to the Defendants. They were dated and served on 18 April 2017, the date upon which the Prime Minister announced (without warning) that she was proposing a dissolution motion to the House of Commons (11 days after publication, not 9 days as indicated in her witness statement). Accordingly, neither her illness (whether or not she lied about the period that it resulted in her remaining in hospital following her urgent admission on 21 June 2017) nor her claim that she was “completely immersed in election matters until Election Day on 8 June 2017” were capable of explaining her original false statement about the reason that she joined the Community section. It is untrue that the Claimant made a mistake. The statements of truth verifying her witness statement, dated 28 May 2019 and 19 June 2019, were made dishonestly.

This further dishonesty is all the more grave because it was done with the aim of securing the Court’s acceptance of the next paragraph of her witness statement, in which the Claimant “apologise[d] to the Court for this error which was made entirely innocently” and sought to admit and explain that she “should have searched all of [her] social media at this point before confirming [her] statement, to ensure [she] was accurate in [her] recollection”.

That she gave false evidence to bolster her apology to the Court for making a false averment supported by a statement of truth, resulting, she said, from her failure to make the checks that she should have made, very seriously exacerbates her abuse of the Court’s process.

The nature and extent of her political and parliamentary activity over the months during which her witness statement claimed that she remained in hospital following her rushed admission on about 21 June 2017 demonstrate that her claim to have remained in hospital for 6 months following her admission is untrue and dishonest. During those 6 months when she supposedly remained in hospital, the Claimant in reality conducted surgeries in her constituency office, made speeches in the Chamber of the House of Commons, participated in Parliamentary Select Committees, and voted on several Bills passing through the Commons.

Further, the said activities over the months immediately following her admission to hospital on 21 June 2017, and her further political and parliamentary activities over the month between her discharge and the Particulars of Claim being filed on 26 January 2018 were such as manifestly required attention to detail and good recollection. They make it unlikely that her illness and hospitalisation caused such a degree of mental impairment as to leave her, in the course of January 2018 during which she gave instructions on the Particulars of Claim and verified them by a statement of truth, with no memory of the true circumstances in which she joined the Community section of the 1^st Defendant, and a false memory that her initiative to join the Community section of the 1^st Defendant was made alone, without discussion, prompted by its work in her constituency, and that she shared the fact that she had joined with her husband alone (her having made a positive averment to the effect that she discussed it with nobody other than her husband, rather than stating that she only recollected telling her husband).

The Claimant refers to and relies upon the appended “SCHEDULE: The Claimant’s public activity from June 2017 to January 2018” in this regard.

Further, the Claimant’s assertion in her witness statement that after receipt of the first Part 18 request of 22 March 2018, she “racked [her] brains” and then searched her phone records, and it was only when she read the relevant WhatsApp messages that she “realised that [she] had completely forgotten that [the Birthday Club discussion] was how I came to apply for membership of the Community section” is untrue and dishonest.