Blake, Seymour & Thorp v Fox

Reference: [2021] EWHC 3463 (QB)

Court: High Court, Queen’s Bench Division, Media & Communications List

Judge: Senior Master Fontaine

Date of judgment: 22 Dec 2021

Summary: Trials of Preliminary Issue - Meaning - Honest Opinion - Default Judgment - Relief From Sanctions - Trial by Jury - Shadow Pleadings

Download: Download this judgment

Appearances: Alexandra Marzec - Leading Counsel (Defendant) 

Instructing Solicitors: Patron Law for Cs; Gateley Tweed for D


The Defendant (D) published a tweet on Twitter criticising Sainsbury’s supermarket over an announcement that it was providing “our black colleagues with a safe space to gather in response to the Black Lives Matter movement”. D described this as “racial segregation and discrimination”.

In response:

– C3 tweeted: “Any company giving future employment to Laurence Fox, or providing him with a platform, does so with the complete knowledge that he is unequivocally, publicly and undeniably a racist. And they should probably re-read their own statements of ‘solidarity’ with the black community.”

– C1 tweeted: “What a mess. What a racist twat.”

– C2 tweeted: “Imagine being this proud of being a racist! So cringe. Total snowflake behaviour”.

In reply to these allegations of racism, D tweeted:

– of C3: “Hey @nicolathorp_ Any company giving future employment to Nicola Thorpe or providing her with a platform does so with complete knowledge that she is unequivocally, publicly and undeniably a paedophile”

– of C1: “Pretty rich coming from a paedophile”

– of C2: “Says the paedophile”.

C1, C2, and C3 sued D in respect of his replies using the word ‘paedophile’. D served a Defence disputing defamatory meaning and serious harm, and relying on the defences of qualified privilege (reply to attack) and equitable set-off. D also served a Counterclaim against all Cs in respect of the tweets by Cs which used the word ‘racist’.

Cs did not serve a Reply & Defence to Counterclaim in time or at all. Cs applied for a trial of preliminary issues (“TPI”) in respect of the issues of meaning, whether the words were defamatory, and whether they were fact or opinion, in respect of all three claims and all three counterclaims.

In the light of Cs’ failure to indicate the nature of their defences to counterclaim, D did not consent to the TPI and applied for Default Judgment.

D also intimated in correspondence that, pending receipt of the Defence to Counterclaim, he was minded to apply at the CCMC for trial to be by judge sitting with a jury, pursuant to CPR r.26.11(2), subject to the contents of the Reply and Defences to Counterclaim.


(1) Should Cs be granted Relief From Sanctions for failure to file and serve a Reply & Defence to Counterclaims in time or at all?

(2) Should D be granted Default Judgment?

(3) Should a TPI be ordered on (any of) the issues proposed by Cs?


In an ex tempore judgment:

(1) Cs should be granted Relief From Sanctions.

(2) No Order would be made on D’s application for Default Judgment.

In a reserved judgment:

(3) No TPI would be ordered at this time, not least as it would prejudge any application D wished to make at the CCMC for a jury trial. Cs would be ordered to file and serve on D a ‘written notice’ giving the core information that a Defence to Counterclaim would provide and, having served that notice, notify D if Cs wished to renew their application for a TPI. If they did, and the parties could not agree, the application for a TPI would be adjourned to the CMC


A curious procedural case, the first decided since Bindel v Pink News Media Group Ltd [2021] EWHC 1868 (QB), on whether a TPI on meaning and other issues was appropriate before close of pleadings and before a defendant had set out the nature of their defence. The decision highlights the need for the issues in a libel case to be defined before the Court can make any determination as to how and when issues should be tried. The judgment also indicates that an application for a TPI may not be used to deprive a party of their right to make an application for jury trial (which CPR r.26.11(2) says should be made at the first case management conference).