Chandler v O’Connor

Reference: [2019] EWHC 3181 (QB)

Court: High Court (QBD)

Judge: Nicklin J

Date of judgment: 22 Nov 2019

Summary: Libel – Twitter – Summary Relief – Defamation Act 1996 – Assessment of Damages

Download: Download this judgment

Appearances: Aidan Eardley (Claimant) 

Instructing Solicitors: Keystone Law for the Claimant

Facts

The Claimant is an investor and philanthropist. He founded the Legatum Group and co-founded the London-based Legatum Institute. He was born in New Zealand and lives in Dubai.

He sued the Defendant in respect of three tweets. The meanings complained of were, in essence, that the Claimant was underhand in that he used the Legatum Institute to lobby for a hard Brexit while covertly doing so at the behest of the Russian government which was funding him, and that he was guilty of criminal conduct, namely money laundering.

The Defendant apparently lives in Ireland. He took no part in the proceedings, and judgment in default of an acknowledgement of service was entered against him. An injunction had also been granted by the Master at an earlier hearing.

The Claimant subsequently applied for summary relief under ss.8-10 of the Defamation Act 1996.

Issue

1.  Whether the hearing should proceed in the absence of the Defendant.

2.  Whether the Court should proceed to dispose of the issues summarily (s.8, Defamation Act 1996).

3.  What should be the award of damages?

4.  Whether the Court should make an order under s.9(1)(b) of the Defamation Act 1996 that the Defendant publish a suitable correction and apology.

Held

The Judge was satisfied that the Claimant had satisfied s.12(2)(a) of the Human Rights Act and taken all practicable steps to notify the Defendant of the hearing.

Since judgment had been entered, the Claimant’s solicitors had used post, text messages and Twitter to inform the Defendant of steps taken in the proceedings. It could be readily inferred from the Defendant’s action, including subsequently blocking the Claimant’s solicitor on Twitter, that he was aware of the hearing.

There was no reason why the outstanding issues should proceed to a full trial. As judgment had already been entered, the threshold test for summary relief (s.8(3)) was to be applied to whether the trial of damages should be resolved by the summary procedure. That was clearly appropriate where, in this present case, the Claimant had elected the procedure and the Defendant had chosen not to participate or challenge the Claimant’s evidence.

Damages were awarded at the maximum amount permitted under s.9 of the 1996 Act, namely £10,000. Following a trial, damages in excess of £20,000 would have been justified. The allegations were “serious”, but the extent of publication was limited. The Defendant’s conduct, including his refusal to remove the tweets complained of in response to a court order, “increased the importance of the vindicatory element” of the award.

Despite the Defendant’s failure to engage in the proceedings, which made it unlikely that he would engage with the Claimant to agree the wording of a suitable correction and apology for publication by him, the Judge made an order under s.9(1)(b).

Comment

This case is a reminder to potential claimants who intend to sue in respect of tweets or other social media posts of the importance of obtaining the data showing the extent of engagements with the statement complained of. In this case, the Claimant had instructed a different firm of solicitors to have the tweets removed by Twitter. Twitter did so after default judgment was obtained, but it appears the underlying data which could have shown the extent of publication and any republication was lost as a result.

The size of the putative award of damages which might have followed trial, i.e. a sum “in excess of £20,000” is also of some interest because there was “no evidence of particular reputational harm” caused by the publications. The award was therefore largely based on the seriousness of the imputations and what the Judge considered were circumstances where he could only be satisfied there was limited publication.