The High Court has given Arron Banks permission to proceed with an appeal against his libel claim loss to Carole Cadwalladr. Banks appealed the verdict on five counts, with Justice Steyn today granting appeal permission on one count she claimed has a “real prospect of success” – on whether the threshold for “serious harm” inflicted by Cadwalladr’s TED talk needed to be reassessed since Banks had previously proved it.
Banks’ QC said:
“The claimant succeeded in discharging the burden of establishing that the publication complained of had caused and was likely to cause serious harm to his reputation. At that point, it was for the defendant to demonstrate that she had a defence to the original publication and/or its continuing publication.”
Justice Steyn herself added: “I am going to grant permission. It does raise clearly an issue of law that has not been determined previously. There is a real prospect of success on that ground”…
Our research shows that Mrs Justice Steyn herself inhabits an anti-Brexit echo chamber like the one she controversially ruled to be of no importance when it came to Arron Banks’ reputation. We have found her private Twitter account, the one that signalled her support for her anti-Brexit campaigner husband’s political ambitions. It followed 27 tweeters, two BBC journalists – who, for the purposes of this research, we will consider to be impartial – one anonymous account, and 24 well-known, high-profile remainers. That, to Guido’s mind, constitutes her own self-selected, anti-Brexit echo chamber.
She followed the likes of Faisal Islam, Eddie Izzard, Nick Cohen, Alan Rusbridger, Jon Snow, David Miliband, Robert Peston, David Allen Green, Gary Lineker and Rupert Myers – hard-line remainers all. The fact is that Karen Steyn does not follow a single Brexiteer, all her timeline and the information coming to her on Twitter is from anti-Brexit sources. That is the definition of an echo chamber.
This is important because it is a judicial principle that “apparent bias” arises when, even if the judge does not have an interest in its outcome, there is something in the judge’s conduct or behaviour, their interests, affiliations or their allegiances, that gives rise to a suspicion that they have not decided the case in an impartial manner.
The most famed example in recent years is R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2)  1 AC 119, which involved the unprecedented decision by the House of Lords to set aside its own previous judgment based on just the mere possibility of bias.
In that case, Lord Hoffman, who had formed part of the 3-2 majority in the House of Lords trial which decided the former Chilean President had no immunity from arrest, had failed to declare his links to Amnesty International, which had intervened in the appeal. Not only was he an unpaid director of the charitable arm of Amnesty International but his wife had been an administrative assistant to Amnesty International’s London office for 21 years. When this emerged his fellow Law Lords held that: ‘The fact that a person has the necessary training and qualifications to resist any tendency towards bias is not relevant when considering whether there was an appearance of bias.’
In Magill v Porter UKHL 67, the House of Lords adopted the test of ‘what the fair-minded and informed observer would have thought, and whether his conclusion would have been that there was real possibility of bias.’ This is an objective test. When applying the test: ‘It will very often be appropriate to enquire whether the judge knew of the matter relied on as appearing to undermine his impartiality, because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled.’
It is open to the claimant, Arron Banks, to draw this information to the attention of the Lord Chancellor when asking for the case to be set aside and reheard. The judge should, according to the Bar Standards Council rules, have recused herself because of her husband’s relevant political views and campaigning, which could arguably have prejudiced her views. The evidence of her Twitter account shows she was supportive of his efforts and she herself, on the basis of the people she follows, inhabits an anti-Brexit Twitter echo chamber…
Read her follows list, and their anti-Brexit sentiments in full, below:
Yesterday’s Cadwalladr ruling was confusing at best. While Mrs Justice Steyn ruled the TED Talk Carole Cadwalladr gave was defamatory, she said Banks had failed to prove that its publication caused “serious harm to reputation”. Part of this was based on a belief that Carole’s followers are mainly an #FBPE echo chamber, therefore unlikely to have had their minds changed by the defamatory Russia claim…
It’s since been pointed out to Guido that the husband of Mrs Justice Steyn, Alex Glassbrook, is none other than a Brexit-hating former LibDem candidate who is not unfamiliar with that Twitter echo chamber. Glassbrook stood for the LibDems as their Tooting by-election candidate in 2016, and at the 2017 General Election, where his leaflets said he “was dismayed when our country voted to leave the European Union.”
Justice Steyn, first name Karen, was loyaly supportive of her husband’s electoral efforts. Her Twitter account shows her delighting in the LibDems’ potential at the 2017 election, and retweeting a photo of her husband at a husting where he “brilliantly [represented] #LibDems”
Guido has no intention of impugning the integrity of the judge in this case – just observing that it would have been very fraught over last night’s dinner table had she ruled in favour of the “Hard Brexit” backer her husband pledged to fight…
Mrs Justice Steyn has ruled that a TED Talk given by Carole Cadwalladr was defamatory, though Banks failed to prove that “the publication of the TED Talk from 29 April 2020 caused and/or is likely to cause serious harm to his reputation.” He was as a consequence awarded no damages.
The judgement ruled that “there was a significant change of circumstances once … the National Crime Agency” investigation cleared Banks and her public interest defence ceased to apply after that finding. Banks was sanguine, publicly tweeting “Congratulations to Carole on winning today, it leaves open for the journalist the excuse that she thought what she said was correct even though she had no facts. There are important points of law at stake here and we will likely appeal.” For Banks it was never really about money and winning damages – she would have been bankrupted, if she had to pay anyway. It was about clearing his name in court once and for all.
The Judge also dismissed Cadwalladr’s bluster from when she was trying to frame the case as a “freedom of the press” issue, that this was a SLAPP suit:
9. Ms Cadwalladr has repeatedly labelled this claim a SLAPP suit, that is a strategic lawsuit against public participation, designed to silence and intimidate her. Although, for the reasons I have given, Mr Banks’s claim has failed, his attempt to seek vindication through these proceedings was, in my judgment, legitimate. In circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit.
That was always nonsense.
Crucially Justice Steyn ruled
“it may reasonably be inferred that the vast majority of the defendant’s followers on Twitter “are likely to be persons within her own echo chamber” and “it’s probably right that they wouldn’t have thought very much of [the claimant] by that time”. In my judgment, those within the jurisdiction to whom the Tweet was published are likely to consist of people whose opinion of the claimant was of no consequence to him.
The claimant’s case on this issue is essentially dependent on drawing an inference of serious harm from the combination of the gravity of the imputation and the extent of publication. While I have been persuaded, on balance, to draw such an inference in relation to the TED Talk, in my judgment, the claimant has not established that the Tweet caused (or is likely to cause) serious harm to Mr Banks’s reputation.”
In other words Carole Cadwalladr’s #FBPE echo chamber on Twitter constantly repeating deranged allegations does not constitute “serious harm”. “Defamatory tweets don’t matter” is an extraordinary ruling in an age where social media dominates public discourse…
Full judgement Banks v Cadwalladr.
UPDATE: Banks has released a statement on the result:
Guido is happy to report news of more chaos from Arron Banks’s defamation case against crazy Carole. Despite two apologies to Banks so far, and a collapse in her ‘truth defence’ last November, she carries on the fight. The inevitable conclusion is much delayed because she keeps switching law firms. Banks has now been advised that she’s fallen out with the left-wing law firm Bindmans, and has now hired another law firm to represent her. Banks reckons she’s now onto her fifth law firm – hardly a vote of confidence in her argument from the legal community…
Unfortunately for Carole, one of her more recent legal representatives, RPC, represented the Electoral Commission in a former action between Banks and the Commission, so is likely to be conflicted out. Law firm number six will no doubt have a go…
To remind co-conspirators, Cadwalladr has now admitted that there was no evidence to back up her claims that the Russians financed the Brexit campaign, nor that Arron Banks was involved in shady deals with the Russians. She’s now claiming a novel ‘public interest’ defence. In normal circumstances she’d have given up, though given it’s not her money there’s no reason not to run her defence into a head-on collision with the facts. Crowdfunding mugs are paying the bills…
Arron tells Guido “the situation is farcical”, despite having received two written apologies from Carole “she carries on like a demented die hard for nothing.” She long ago
“… dropped any justification of truth ( because she had no evidence ) but is now saying it’s in the public interest to lie about me because it’s a matter of great public interest. A novel defence, but since it’s not her money at stake she seems intent on running her defence into a head on collision with the facts. The accusation was that I was in a secret relationship with Russia over campaign finance has no evidence, other than I had a lunch or two with the ambassador!”
Perhaps she is just playing for time, delaying receiving the hefty final legal bill…
You may have forgotten that the Arron Banks defamation case against Carole Cadwalladr is still ongoing, given she dropped her defence of truth back in November. Remember all those Russian collusion allegations she pushed so hard? No evidence presented whatsoever and that will cost her (or rather her backers) a fortune. This has not stopped her milking crowdfunding mugs though; she is continuing the battle with Banks and attempting to mitigate her costs with a novel argument. Namely that despite there being no truth to the allegations which she made around the world to much acclaim, they were made in the public interest. Essentially running up her crowdfunded legal bill to argue that her disinformation was in the public interest. Some chutzpah!
Carole’s crowdfunding website itself has unbelievably resulted in her having to make yet another apology to Banks. This time after her she tried to raise money on the back of repeating the claim of a secret Russian relationship with Banks – despite having admitted it was untrue. A weary sounding Arron Banks tells Guido “Yet another apology – it’s about time Carole dropped her court case, apologise and stop wasting her donors’ money and the court’s time.” That would, however, require Carole and her backers to finally accept that it was all a fantasy…