Final ruling in Banks v. Cadwalladr is a ‘dark day for press freedom’
Back in March of this year, I wrote about the latest instalment in the saga of Aaron Banks and Carole Cadwalladr. By now, I’m sure you’re all familiar with the background to this case, so I’ll keep it brief!
In April 2019, Ms Cadwalladr gave a TED talk entitled “Facebook’s role in Brexit – and the threat to democracy”. In the talk, Ms Cadwalladr claimed that Mr. Banks, a high-profile Brexiteer and political figure, had a secret and ongoing financial relationship with the Russian Government.
Initially in the ensuing claim for libel, Mrs. Justice Steyn held that Ms. Cadwalladr had succeeded in establishing a public interest defence which sustained up until the point at which the NCA and Electoral Commission found that there was no evidence to support the allegations made against Mr. Banks.
Steyn J. further determined that a reconsideration of the finding regarding serious harm was required concerning the so-called “second phase” of publication of the TED talk.
At first instance, it was held that even though the public interest defence had fallen away, Mr. Banks’ claim in libel still failed as he was not able to prove that serious harm had occurred as a result of the publication during that second phase.
Mr. Banks appealed this decision, and at a hearing in February 2023, he was successful in overturning part of the trial judge’s decision. The Court of Appeal held that Mr. Banks had suffered serious harm as a result of the second phase of publication due both to the extensive scale of publication, and the seriousness of the allegations made against him.
Mr. Banks was subsequently awarded damages and payment of his legal costs to be assessed by the court if the parties were unable to come to an agreement as to the amount payable.
Now in (almost) the final instalment of this long-running dispute, the Court of Appeal has determined that the damages payable to Mr. Banks total £35,000. Though this may seem a modest amount given how long and hard both parties have fought in the dispute, there are two points to note.
Firstly, Mr. Banks was only partially successful in his claim, this was not an outright victory. Secondly, damages awarded almost always pale into insignificance when the issue of legal costs comes to be decided.
This case was no different, with the court ruling that Mr. Banks was entitled to recover 60% of his legal costs. Initial reports suggest that this sum will equate to more than a million pounds. Mr. Banks said that this decision represented vindication but Ms Cadwalladr, who crowdfunded ahead of the proceedings for this reason, said that the court’s decision represented a dark day for the press.
In a statement, Ms Cadwalladr said:
“It is a dark day for press freedom in the UK. This decision has huge ramifications for any news organisation or journalist who believes that the overwhelming public interest of a story will enable them to speak true to power.
“Many abuses of power already go untold in Britain because our defamation laws are among the most repressive in the world. This arbitrary and punitive ruling will mean there will be many many more which will never see the light of day.”
In the brief reasoning for its decision set out within the Order, the Court explained that whilst Mr. Banks had been the successful party overall and on appeal, his victory was partial, and he had lost on some “discrete issues of substance” giving sufficient cause to depart from the usual rule that the unsuccessful party should pay the costs of the successful party.
In particular, Mr. Banks had lost on the issue of whether it had been reasonable for Ms Cadwalladr to believe that it was in the public interest to publish what she did and in terms of proportion, the consideration of this issue had taken up the most time and money to resolve.
However, the Court also found that Ms Cadwalladr’s “persistence in her defence of the second phase of publication was also highly optimistic” and so declined to take an “issues-based approach” to awarding costs.
Though technically not the end of the road for Ms Cadwalladr, whether she has the means, or indeed the will, to appeal the Court’s ruling is a question only she can answer.
However, if she is correct in characterising the outcome of the litigation as “a dark day for press freedom in the UK” and an “arbitrary and punitive ruling” resulting in “many abuses of power which will never see the light of day,” then journalists and publishers will rightly be concerned.