Andrew Bridgen MP v Matt Hancock MP [2024] EWHC 1603 (KB)
The case is a defamation claim by Andrew Bridgen MP, the Defendant against Matthew Hancock MP, the Claimant. The claim is based on a Tweet posted by Hancock on 11 January 2023, which Bridgen alleges to be defamatory. The Tweet referred to “disgusting and dangerous anti-semitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning.” Although the Tweet did not explicitly name Mr Bridgen, it was understood to refer to him due to the context provided by preceding events.
On 9 January 2023, Dr. Guetzkow, a Senior Lecturer in Criminology at the Hebrew University in Jerusalem, published an article online concerning data about deaths and other adverse reactions to COVID vaccines. On 11 January 2023, at 08:42 AM, the claimant published a Tweet linking to Dr. Guetzkow’s article and stated, “As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust.”
As a result of the claimant’s Tweet, the Conservative Party withdrew the party whip from him. The claimant was notified of this in a telephone conversation with the Conservative Party Chief Whip, Simon Hart MP, and a text message sent by Hart immediately following their conversation, at about 11:16 AM on 11 January 2023. Following his text message to the claimant, Hart released a press statement in which he said that the claimant’s Tweet had “crossed a line,” “causing great offence in the process.” Hart emphasised that misinformation about the vaccine causes harm and costs lives, and therefore, he was removing the whip from the claimant with immediate effect, pending a formal investigation.
During Prime Minister’s Questions (PMQs) in the House of Commons on 11 January 2023, at 12:32 PM, the defendant asked a question and received a response from the Prime Minister. The defendant’s question was: “Does the Prime Minister agree that the disgusting antisemitic, anti-vax conspiracy theories promulgated online this morning are not only deeply offensive but anti-scientific and have no place in this House or in our wider society?” The Prime Minister responded by condemning the comments in the strongest possible terms and emphasizing that antisemitism has no place in society.
At 1:03 PM on 11 January, the defendant published the Tweet complained of, 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 also included a link to a video of the defendant asking his question in Parliament and receiving a response from the Prime Minister.
The claimant considered that the defendant’s Tweet referred to them because of the timing and context of the events. On the morning of 11 January 2023, the claimant’s Tweet had already caused significant controversy, leading to the withdrawal of the whip by the Conservative Party. During PMQs later that day, the defendant asked a question referring to “disgusting antisemitic, anti-vax conspiracy theories promulgated online this morning,” which was understood to be about the claimant’s earlier Tweet. The defendant’s subsequent Tweet at 1:03 PM linked to a video of his question in Parliament and reiterated the same sentiments, making it clear that the reference was to the claimant’s Tweet from that morning.
The Application to Strike Out
The defendant’s legal team applied to strike out paragraphs 7 to 24 of the claimant’s Particulars of Claim, arguing that the claimant had failed to articulate a proper case on reference in their pleading. The application was made pursuant to CPR 3.4(2)(a), which allows the court to strike out a statement of case if it discloses no reasonable grounds for bringing or defending the claim.
Legal Principles Regarding Strike Outs
Under CPR 3.4(2)(a), the court may strike out a statement of case if it appears that the statement discloses no reasonable grounds for bringing or defending the claim. This rule enables the court to strike out a statement in whole or in part. An application under this rule is determined on the assumption that the pleaded facts are true, and it should not be granted unless the court is certain that the claim is bound to fail.
Additionally, the court should consider whether any defect in the pleading might be cured by amendment. If so, the court should refrain from striking out the pleading without first giving the party an opportunity to amend.
Claimant’s Submissions
The claimant argued that this case was more about clarification rather than striking out the claim. If the defendant wanted clarification, a request under CPR Part 18 should have been made, which would have been answered. The application to strike out the claim was deemed unreasonable.
The claimant asserted that the rules regarding pleading of a reference innuendo case did not apply here. The claimant relied on the ‘acquainted with’ test, as stated in Dyson, and argued that the attributes known to the hypothetical acquaintance were adequately pleaded in the opening averments.
The claimant submitted that the withdrawal of the whip was a significant public event, and anyone acquainted with the claimant would have known about it. The hypothetical person acquainted with the claimant would have known the defendant’s Tweet was referring to the claimant’s Tweet due to the public nature of the events.
The claimant defended the pleading of “particulars of reference” by stating that the statement of case provided a chronology and told a story. The claimant’s track record as a vaccine-sceptic MP and the furore on Twitter following the claimant’s Tweet were attributes that would have been known to the hypothetical acquaintance.
The claimant referred to the witness statement, which exhibited numerous replies on Twitter to the defendant’s Tweet, indicating that readers were aware it was about the claimant. The evidence showed the claimant was bound to succeed at trial on the issue of reference.
Defendant’s Submissions
The defendant argued that the claimant’s pleading of reference was defective and that an essential element of the cause of action was not made out on the claimant’s pleading. The claimant had failed to articulate a proper case on reference despite repeated requests to amend the pleading.
The defendant submitted that the claimant’s contention that this was an ordinary reference case was hopeless. The attributes ascribed to a hypothetical reasonable reader acquainted with the claimant were general and did not establish a case on reference with a realistic prospect of success.
The defendant contended that the claimant’s case on reference was dependent on readers of the defendant’s Tweet having knowledge of specific facts, mostly concerning events that occurred shortly before the publication of the Tweet. This made it a reference innuendo case, and the claimant had to comply with the pleading requirements for such a case.
The defendant argued that paragraphs 15, 16, 17, 19, and 24 of the Particulars of Claim were irrelevant and should be struck out. These paragraphs contained argument rather than particulars of reference and did not advance the claimant’s case.
The defendant submitted that a strike out application is not evidence-based and should be determined on the assumption that the pleaded facts are true. The claimant’s evidence was irrelevant and inadmissible on the issue of whether the Particulars of Claim were defective.
The defendant emphasized that the defendant was entitled to receive a properly articulated pleading, especially given the significant issue on serious harm that would arise once the claim was stripped back to a viable form.
Legal Principles Regarding Reference
It is an essential element of the cause of action for defamation that the words complained of should be published “of and concerning” the claimant. This means that the claimant must plead the facts relied on for the case that the words would have been understood to refer to them.
In Dyson Technology Ltd v Channel Four Television Corporation, the Court of Appeal explained that a claimant may be proved to be the person identified or referred to in a statement in two main ways:
Ordinary Reference:
This occurs if the claimant is named or identified in the statement or where the words used are such as would reasonably lead persons acquainted with the claimant to believe that they were the person referred to. This is known as the ‘acquainted with’ test.
Reference Innuendo:
This occurs where a claimant is identified or referred to by particular facts known to individuals. In such cases, the claimant must prove that the words would convey a defamatory meaning concerning themselves to a reasonable person possessed of knowledge of the extrinsic facts.
The test for reference is objective, meaning that the question is whether the hypothetical ordinary reasonable reader, attributing knowledge of particular extrinsic facts, would understand the words to refer to the claimant. The claimant must plead the case by setting out the connecting facts which establish the link between themselves and the words used, and make plain their case as to the existence of any persons who in fact linked them with the words by reason of their knowledge of those connecting facts.
In this case, the judge concluded that the claimant’s case on reference was a reference innuendo case, as it relied on specific events that occurred in the claimant’s life over a matter of hours prior to the publication of the words complained of. The judge emphasized that the claimant had to comply with the pleading requirements for such a case, which included pleading that the facts were known to one or more identified readers or that they were so well known among a class or generally that it could be inferred that some of the readers of the defendant’s Tweet would have known them.
Judge’s Decision and Reasoning
Mrs Justice Steyn DBE presided over the case and delivered a detailed judgment addressing the defendant’s application to strike out paragraphs 7 to 24 of the Particulars of Claim. The judge’s reasoning can be summarised as follows:
Defective Pleading:
The judge acknowledged that the claimant’s pleading of reference was defective. The claimant’s case on reference was dependent on readers of the defendant’s Tweet having knowledge of specific facts, mostly concerning events that occurred shortly before the publication of the Tweet. The judge emphasised that the claimant had failed to articulate a proper case on reference in their pleading.
Opportunity to Amend:
Despite the defective pleading, the judge concluded that the defect was capable of being cured by amendment. The judge highlighted the importance of providing a properly articulated pleading, especially in cases where reference is an essential element of the cause of action. The judge decided to give the claimant an opportunity to amend their Particulars of Claim to remedy the deficiencies identified.
Striking Out Irrelevant Paragraphs:
The judge struck out paragraphs 15, 16, 17, 19, and 24 of the Particulars of Claim as they were irrelevant to the case on reference. These paragraphs contained argument about whether the defendant was justified in what they said, given what others said (and did not say) about the claimant’s Tweet.
Legal Principles Regarding Strike Outs:
The judge referred to CPR 3.4(2)(a), which allows the court to strike out a statement of case if it discloses no reasonable grounds for bringing or defending the claim. The judge noted that an application under this rule is determined on the assumption that the pleaded facts are true and should not be granted unless the court is certain that the claim is bound to fail.
Reference Innuendo:
The judge explained that the claimant’s case on reference was a reference innuendo case, as it relied on specific events that occurred in the claimant’s life over a matter of hours prior to the publication of the words complained of. The judge emphasised that the claimant had to comply with the pleading requirements for such a case.
Admissibility of Evidence:
The judge considered the admissibility of the claimant’s witness statement and exhibits. The judge concluded that the claimant’s evidence was irrelevant and inadmissible on the issue of whether the Particulars of Claim were defective. However, the judge noted that evidence might be admissible on the question of whether the claimant should be given an opportunity to amend their pleading.
Conclusion:
The judge concluded that the claimant’s pleading of their case on reference was defective but capable of being cured by amendment. The judge decided to strike out the irrelevant paragraphs and give the claimant an opportunity to amend their Particulars of Claim to remedy the deficiencies identified.