Blake & ors v Fox (CA)

The Appellant (Defendant and Counterclaimant) appealed the decisions of Nicklin J at a trial of preliminary issues in three claims (brought by C1, C3 and C3) and three counterclaims.

Nicklin J had determined that each of the tweets in the counterclaims meant that D was “racist”, but that all three tweets were statements of opinion, and so he had declined to further define “racist”. All were defamatory at common law.

Nicklin J had also determined that each of the tweets in the claims meant that the relevant C was a “paedophile”, and rejecting D’s argument that the word was being used in a purely rhetorical sense to deny the charge of racism, determined that in each case was an allegation of fact, which was also defamatory at common law.

The trial was listed for November 2023, so the appeal was expedited.

In the claims, D has denied serious harm was caused to any of Cs’ reputations, and is running defences of QP (reply to attack) and equitable set-off.

In the counterclaims, Cs all deny serious harm was caused to D’s reputation. C1 and C2 are running a defence of Honest Opinion; C3 is running a defence of Truth

(1) Did Nicklin J err in finding that the 3 ‘racist’ tweets were opinion and 3 ‘paedophile’ tweets were fact?

(2) If so, did Nicklin J thereby err in determining the natural & ordinary meaning of the ‘paedophile’ tweets and that they were defamatory at common law?

(3) Did Nicklin J err in declining to define the term ‘racist’, on the grounds that all three tweets in the counterclaim were statements of opinion?

(4) If the counterclaim tweets were statements of opinion, was Nicklin J wrong to replace the pleaded meaning of the Claimants (defendants to the couterclaims) with a bare meaning of ‘racist’?

(1) and (2): In respect of the First and Second Grounds of Appeal, the appeal was allowed in respect of the claim by C3, but refused in respect of the claims of C1 and C2, and all 3 of the counterclaims.

(3) and (4): Nicklin J did not err in either declining to define ‘racist’, or in finding a meaning of ‘racist’ different to that pleaded by the defendants to the counterclaims.

A rare appeal on natural and ordinary meaning, but with little controversy as to the law, and primarily about application to the unusual facts of this case.