When politicians fall out - ‘reference’ principles applied in a high-profile libel case
01/05/2024
A recent ruling in the High Court in a high-profile libel case between two well known politicians made some interesting points about establishing identification (formally known as reference) in a claim for libel.
The case in question concerns a defamation claim brought by well-known former conservative MP Andrew Bridgen against the even more well-known former Health Secretary Matt Hancock.
The dispute arose following publication of a Tweet by Mr. Hancock in January 2023 which stated:
“The disgusting and dangerous anti-semitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society”.
The Tweet did not identify Mr. Bridgen as the MP referred to, but it was posted shortly before the Conservative Party decided to remove the Parliamentary whip from Mr. Bridgen, in response to a Tweet that he has posted earlier that day which included a link to an article about Covid vaccinations.
Mr Bridgen issued proceedings in May 2023 and following some procedural back and forth, Mr Hancock made an application to strike-out the claim against him on the basis that the claimant had not pleaded a sufficient case on reference.
As you will all recall, in order to bring a successful claim in defamation there are a number of factors that must be present, including reference. A Claimant must be able to demonstrate that he is identifiable as the subject of the defamatory statement in question, as the first step in demonstrating that he has a viable case.
As was set out in Dyson v. Channel 4 (yes, the one we have written so much about in the recent past!), there are two main ways that a claimant can demonstrate that he has been identified:
- Ordinary Reference - This refers to a situation where the claimant is named or identified in the statement or where the words used as such as would reasonably lead persons acquainted with the claimant to believe that he was the person referred to; or
- Reference Innuendo - Alternatively, a claimant may be identified or referred to by particular facts known to certain individuals.
In this case, Mr. Bridgen argued that ordinary reference had taken place, but he also pleaded a reference innuendo case in the alternative. Mr. Hancock disputed that Mr. Bridgen had made out reference by any assessment, though he did accept that Mr. Bridgen may be able to construct a viable case based on reference innuendo.
Applying the principles of Dyson, Mrs, Justice Steyn found that Mr. Bridgen’s case for ordinary reference was “misconceived”, on the basis that it was dependent on the readers of Mr. Hancock’s Tweet having had knowledge of other facts relating both to the events of the two hours preceding its publication, and Mr. Bridgen’s previous questions in Parliament concerning the Covid-19 vaccination. These facts were not such that they would automatically be known to persons acquainted with him and therefore, could not satisfy the requirements for proving ordinary reference.
However, Steyn J. clarified that whilst she took the view that the pleading in its current form was “defective”, she also felt that “the pleading is not only capable of being cured, it is highly likely that the claimant would have little difficulty establishing reference innuendo.”
Accordingly, Steyn J. held that whilst Mr. Bridgen’s pleading of his case on reference was insufficient at present, she would not go so far as to strike-out the claim in its entirety. Instead, she gave Mr. Bridgen the opportunity to propose amendments to his case on reference in order to rectify the deficiencies identified.
In what was perhaps a reflection of the judge’s view of the pleaded case on reference, she awarded Mr. Hancock 90% of his costs of the application, which on any measure is a significant proportion, given that his application had not been totally successful.
It remains to be seen whether Mr. Bridgen will indeed opt to make amendments to his pleaded case or whether this decision will encourage the parties to reach a settlement - watch this space!
But whatever happens, we should be grateful to both MPs for providing us with further judicial guidance on what is frequently a tricky judgement call.