The Court of Appeal has today ruled that Carole Cadwalladr will have 14 days to pay £35,000 in damages to Arron Banks. The award follows Carole’s loss in February and acceptance not to repeat claims made against Banks during her 2019 TED talk. The court is also to assess legal costs due from the trial before the Court of Appeal and High Court. A long time coming…
UPDATE: Banks reckons she could be facing multi-million pound costs…
The combined costs exceeded £3m & costs are normally awarded to the person who won damages.. https://t.co/Xq6GZEBbtw
— Arron Banks (@Arron_banks) April 29, 2023
Lord Justice Warby, in a unanimous decision, rules
“In my judgment, there was no legally admissible evidential basis for the judge’s inference that the TED Talk and Tweet did not cause serious harm because most of those to whom they were published already believed in the truth of the allegation which they contained… Nonetheless, so far as the TED Talk is concerned, I have concluded that the judge’s errors do fatally undermine her conclusion. In my judgment, if those errors are put to one side it was an inevitable inference from the evidence before the judge that publication of the TED Talk after 29 April 2020 caused serious harm to the reputation of the claimant.”
Warby’s ruling in favour of Banks says that this kind of appeal will “rarely” be disturbed in the absence of an “error of principle potentially critical to the outcome”. A high bar, nonetheless the Appeal Court rules Judge Steyn was in error. Judge Steyn’s hopes for promotion taking a knock there…
Banks also won damages to be assessed in respect of publication of the TED Talk.
Full judgement Banks v Cadwalladr 2023 EWCA Civ 219.
The appeal hearing before the President of the King’s Bench Division, Dame Victoria Sharp, Lord Justice Singh and Lord Justice Warby of Banks v Cadwalladr was this morning. Banks is appealing the decision of Mrs Justice Steyn from June 2022.
The judge held that Cadwalladr succeeded in establishing a public interest defence; there was a change of circumstances in which the public interest defence fell away, but Banks failed to establish that publication of the TED Talks from the date of the change of circumstances had caused serious harm and failed to establish that the serious harm threshold was met in respect of the Tweet from first publication.
The judge handed down the judgment on June 13 dismissing the claim and by order of 28 June 2022 directed that Banks pay Cadwalladr’s costs of the proceedings and make a payment on account of such costs. This order was also appealed.
Guido leaves it to you to figure out how the hearing went today – all 2 hours of the appeal are available to watch here. Seemed to Guido that Cadwalladr’s barrister – Gavin Miller – had more hostile questions from the bench. Judgement will be given in a few months…
The High Court gave Arron Banks permission to proceed with an appeal against the strange libel claim ruling given to Carole Cadwalladr. The appeal hearing will be this coming Tuesday and will focus on whether the threshold for “serious harm” inflicted by Cadwalladr’s TED talk needed to be reassessed since Banks had previously proved it.
Banks’ KC is arguing:
“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.”
It was a very odd ruling; even though Banks won the claim that he was defamed, the judged ruled that it was of little consequence and awarded no damages. In her ruling she stated:
“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.
After that ruling, Guido drew attention to some of the judge’s own tweets and her Brexit-hating, LibDem husband. This appeal will be legally interesting.
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) [2000] 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[2001] 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:
