Claim No.

QB-2019-002507
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
BEFORE THE HONOURABLE MRS JUSTICE STEYN DBE
BETWEEN:

ARRON BANKS
Claimant
-and-

CAROLE CADWALLADR
Defendant

_________________________________________________

CLOSING SUBMISSIONS ON BEHALF OF THE DEFENDANT

_________________________________________________

References are given as follows:

- Electronic trial bundles [Bundle (bundle letter)/page number] and [Supp
Bundle/page];
- Electronic authorities bundle [AB/page number];
- Statements of case (document/§para number);
- Witness statements (witness initials/§para number);
- The Claimant’s skeleton Arguments (C-SA/§para number); and
- Trial transcripts [day/page/line number].

A. INTRODUCTION
1. These are the Defendant’s closing submissions in the trial of a libel action
brought by Mr Arron Banks, the founder and Chief Executive of Leave.EU
and the biggest donor in the United Kingdom European Union membership
referendum of 2016 (“the Referendum”), against Ms Carole Cadwalladr, an
award-winning journalist best known for her work for The Observer. These
submissions are an updated version of the skeleton argument lodged before

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 the trial, which may now be put to one side. The case advanced in that
skeleton argument remains substantially the same at the close of the trial.

2. The case arises from statements made by the Defendant in the context, and
on the basis, of more than two and a half years of investigative journalism
focussing on campaign finance, foreign money and the use of social media
messaging and personal data in the context of the Referendum campaign,
including by Leave.EU. This was public interest journalism raising issues
going to the heart of the integrity of British democracy, for which the
Defendant won an Orwell prize and was shortlisted for a Pulitzer Prize. This
reporting also materially contributed to investigations by the Electoral
Commission (“EC”) and the Information Commissioner (“ICO”).

3. The Claimant pursues his claim in respect of two publications. The first,
which lies at the heart of this case, is a talk, entitled “Facebook’s role in
Brexit and the threat to democracy” (“the TED Talk”), the Defendant gave
at a conference in Vancouver (British Columbia) curated and hosted by the
New York-based organisation Technology, Entertainment and Design (TED)
LLC on 15 April 2019. TED subsequently made the talk available in audio-
visual and written formats on its website and posted the video on its YouTube
channel (a transcript appears at [Bundle B/291], the talk can be viewed at
[AV file 24]).

4. The second publication is a tweet published by the Defendant through her

Twitter account (@carolecadwalla) on 24 June 2019 (“the Tweet”) [Bundle
B/1283]. That tweet was a response to the Claimant having sent her a letter
before claim in relation to the TED Talk and another publication in respect
of which he has since abandoned his claim [Bundle B/3478]. In the Tweet,
which included an embedded link to the TED Talk, the Defendant expressed
disappointment that the Claimant was taking legal action against her, asked
readers to watch the TED Talk, and stated that the Claimant had lied about
his contact with the Russian government.

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5. The issues covered in the TED Talk (including the core allegation made about
the Claimant) had previously been addressed in greater detail in articles
published by the Defendant in The Observer, and by other leading media
organisations in the UK and around the world. It is notable that the Claimant
took no action against the Defendant, The Observer, or these media
organisations. No claim was brought against TED. He now brings this action
against the Defendant alone and does so in respect of what amounts to one
sentence in a talk (AmPoC/§3).

6. The Defendant denies liability in respect of both publications. There is a

dispute about whether the Claimant can make out/has made out the serious
harm requirement in section 1(1) of the Defamation Act 2013 (“the 2013
Act”). She also relies on the defence in section 4 of the 2013 Act, publication
on a matter of public interest. In summary, it is her case under section 4 that
(a) the statements complained of by the Claimant were and/or formed part of
statements on matters of public interest – the Claimant rightly accepts that
they were; and (b) she reasonably believed (and continues reasonably to
believe) that publishing those statements was – and is – in the public
interest. That defence is maintained both in respect of the original
publications and the continuing publications of the statements complained
of.

7. Put shortly, the Defendant reasonably believed that it was in the public
interest to say that the Claimant had lied about a covert relationship with
the Russian government (and the matters referred to in the TED Talk) on the
basis that, in particular, he had (a) made a public statement (in the form of
an official press release) in November 2017 in response to the EC’s opening
of an investigation into the finances of Leave.EU in which he had stated that
his “sole involvement with the Russians was a boozy 6 hour lunch” [Bundle
B/2265]; and (b) the Defendant had discovered that to be obviously untruthful
and misleading on the basis of her analysis of the text of emails (sent to

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 and/or from the Claimant/his spokesperson) provided to her in June 2018 –
the Claimant, she discovered, had in fact had a more significant relationship
with the Russian government, including during the Referendum campaign.
This is precisely what the Defendant intended to say (and reasonably
believed that she did say). That intention can hardly be described as
unreasonable in circumstances in which that is, in substance, what the
Claimant believed the TED Talk to mean, in so far as it related to him [A/5].

8. The Claimant’s attempts to resist the Defendant’s public interest defence are
underpinned by a fundamental misconception, which is reflected in the
skeleton argument and was repeated in oral submissions, as well as in
questions put to the Defendant: i.e., he continues to approach the case and
the statements complained of with reference to the single defamatory
meaning determined by Saini J. He makes great play of that single meaning
and seems incapable of abandoning it and focussing on the issues now before
the Court. Neither the artificial legal construct of “the single defamatory
meaning” borne by, nor the truth (or otherwise) of the statement complained
of, are relevant to the application of the public interest defence. This central
feature of the Claimant’s attempt to rebut the defence does not, therefore, get
off the ground.

LIST OF ISSUES
9. An agreed list of issues has been filed with the Court. In these submissions,
the issues relating to the public interest defence as they relate to the TED
Talk and the Tweet have been dealt with compendiously.

Serious harm (s 1(1) 2013 Act)

Issue 1: Has the Claimant proved that the publication of the TED Talk
and/or the Tweet has caused and/or is likely to cause serious harm to
his reputation?

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 Public Interest Defence (s 4 2013 Act)
In respect of each of the statements complained of:
Issue 2: Has the Defendant shown that she believed that publishing the
statement complained of was in the public interest? (Issues 2 and 5
and on the list).
Issue 3: If so, has the Defendant shown that her belief was reasonable
having regard to all the circumstances of the case? (Issues 3 and 6
and on the list).
Issue 4: If so, has there been a significant change in circumstances since the
original publication such that the section 4 DA 2013 defence ceased
to apply and, if so, when did any such change occur? (Issues 4 and 7
and on the list).

Remedies
Issue 5: If the Claimant succeeds on liability in relation to the TED Talk
and/or the Tweet, what sum should be awarded in general damages?
(Issue 8 on the list).

Issue 6: If the Claimant succeeds on liability in relation to the TED Talk

and/or the Tweet (Issue 9 on the list):
(1) Should there be an injunction to restrain the Defendant from
publishing the same or any similar allegations?
(2) Should there be an Order pursuant to s.12 of the Defamation
Act 2013 requiring the Defendant to publish a summary of the
judgment?
(3) Should there be an Order pursuant to s.13 of the Defamation
Act 2013 to stop the operator of any website on which the
defamatory statements are being published to remove them.

10. Pursuant to Nicklin J’s indication at the PTR, it is anticipated that, if

required, submissions would be made on issue 6 once the Court has
determined liability.

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B. BACKGROUND
THE PARTIES
11. The Claimant is a political donor and political activist, who has long
supported right-wing, nationalist and populist causes. Alongside his active
involvement in politics in the UK, he also has been involved in the politics of
the Southern African state of Lesotho through his support for the Basotho
National Party. The Claimant is also a businessman whose business
interests include insurance companies and financial services, and at the
material times diamonds/diamond mining and gold. Many of his business
interests are in complex offshore arrangements (in jurisdictions known for
their opacity) and are characterised by complex inter-company transactions.

12. Having previously donated to the Conservative party, the Claimant came to
public prominence by pledging £1 million to the United Kingdom
Independence Party (“UKIP”) in 2014. The Claimant went on to found, chair
and fund Leave.EU. While Vote Leave ended up being the official campaign,
Leave.EU was the other main registered campaign. He was the largest donor
in the Referendum campaign and gave more money than any other donor in
British political history. The Claimant can properly be described as having
been the principal financial backer of Brexit.1 In addition, the Claimant was
a leading public face of the campaign. By way of example, he appeared on the
platform at the launch of Leave.EU in November 2015 and stood alongside
Mr Farage as he gave his victory speech on the night of the referendum, in
the early hours of 24 June 2016.

13. The Defendant is an acclaimed investigative journalist and features writer.

She has written for the Observer for more than 15 years. She won the 2018
Orwell Prize for Journalism for her work on the impact of big data on the EU

1Various figures are cited. £8m was put to the Claimant by Andrew Marr in a BBC interview
and not disputed [Bundle B/2983] [AV file 634]; before the DCMS Committee it was suggested
that the figure was £9.6m – the Claimant was not sure whether or not this was correct [Bundle
B/2652]. In cross examination he could not remember: Transcript, Day 1, p67, lines 4-22.

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 Referendum and the 2016 US presidential election. Her recent journalistic
investigations have focused on the sources of funding for, and uses of data by,
campaigners during the EU Referendum, and within electoral and political
processes generally. Her work on these issues has been published
internationally and she has also appeared as a guest on broadcasts covering
these topics in both the UK and United States. She has also given evidence
in the UK and European Parliaments on matters relating to Russian
influence in UK politics, and fake news and disinformation online.

THE DEFENDANT’S JOURNALISTIC INVESTIGATIONS

14. The Defendant’s work on the issues addressed in the TED Talk began almost
two and a half years before. This work is set out in detail in her witness
statement [Bundle A/243]; what follows is a summary of those investigations.

15. In late 2016, the Defendant started investigating the role of Cambridge
Analytica (“CA”), a political consulting firm, including its misuse of data, in
the US 2016 Presidential election and Referendum campaigns (CC/§§6-7). In
early 2017 her work on CA expanded to include the company’s relationship
with Leave.EU; she also started to examine Leave.EU’s use of social media
(CC/§§9, 13). Admissions made by the Claimant and Leave.EU’s Andy
Wigmore (who was director of communications for Leave.EU and was at the
material times a longstanding close associate of the Claimant’s) about
Leave.EU having received help from/ used the services of CA caused the
Defendant to examine whether any such assistance had been properly
declared as election spending (CC/§§9, 20-21, 27). The Defendant published
her first major article on CA in the Observer on 26 February 2017 [Bundle
B/1464] (CC/§25). Information provided by Mr Wigmore also indicated that
Leave.EU had used the services of an American consultancy called Goddard
Gunster (led by Gerry Gunster) (CC/§16). An initial focus for the Defendant
was on Leave.EU not having declared services received by CA or Mr Gunster
(CC/§§16, 22-24). The Defendant also learned at this point of connections

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 between Mr Farage, Steve Bannon and Robert Mercer (the ultimate owner of
CA).

16. This work led the Defendant to investigate the Claimant, as the funder of
Leave.EU. That included examining his business interests and structures,
his social media activity, his business partners, and his then wife’s
background (as questions had been raised about her potential links with
Russian intelligence) (CC/§§19-32, 48, 50). At this point, the Claimant
became aware that concerns had begun to be raised about Russian influence
in UK politics. She was introduced to Mr Neil Barnett, a journalist with
intelligence connections, who had been examining the Claimant’s finances.
Mr Barnett raised concerns about the Claimant’s funding of the Leave.EU
campaign and the Russian practice of grooming businesspeople to achieve
their foreign policy objectives. He raised the possibility that Leave.EU may
have received funding from Russia which may have been processed through
the Claimant’s offshore companies (CC/§§37-39). The Defendant’s attention
was drawn to a report published (in late 2016) by the think tank, the Atlantic
Council, entitled “the Kremlin’s Trojan Horses”, to which Mr Barnett had
contributed [Bundle B/1967]. That report identified the Claimant as a “key
pro-Russian actor” in UK politics [Bundle B/1987].

17. In March 2017, the Defendant interviewed the Claimant at length (CC/§§44-
66). A transcript appears at [Bundle B/722]. Comments by the Claimant
during the interview (on topics ranging from Leave.EU’s use of personal data,
his views on and relationship with the Russian state/Russian officials, and
his spending in the campaign) gave the Defendant cause further to
investigate him.

18. The Defendant continued to speak to eminent academic experts, journalists,

and confidential sources with knowledge relevant to her investigations
(CC/§§67-68, 70-71, 75-76, 78). These discussions raised further serious
concerns about, among other things, the sources of the Claimant’s apparent

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 wealth/income (and the obscurity of these); Russia’s targeting of western
democratic processes and its support for far-right parties and politicians; Mr
Farage’s views on and relationship with Russia; Mr Farage’s relationship
with the Trump presidential campaign; UKIP’s having been targeted by the
Russian government; and the way that foreign money can be deployed
through social media platforms to influence electoral processes without
detection.

19. During the course of 2017, specialist financial journalists published in-depth
analyses of the Claimant’s finances and the sources of his money. The
Defendant considered these reports (CC/§§81, 90-91). They concluded that it
was not possible to verify the sources of the Claimant’s apparent wealth and
raised questions about how the Claimant had quickly escaped significant
financial difficulties in 2014, as well as about the accuracy of claims made by
him regarding his wealth. Then, on 1 November 2017, the EC opened an
investigation into the source of the Claimant’s donations to Leave.EU
[Bundle B/2134]. That elicited a furious response from the Claimant in the
Leave.EU press release referred to at paragraph 7 above, which falsely
accused The Guardian (read: the Defendant) of having said that Brexit was
funded by the Russians [Bundle B/2265, 2977] (CC/§97).

20. At the same time the Defendant learned that Mr George Papadopolous, an
aide to Donald Trump, had been indicted by Robert Mueller (a special counsel
investigating Russian interference in the 2016 Presidential Election) in the
United States. On studying the unsealed indictment, the Defendant learned
that London-based individuals, including the Russian ambassador, were
implicated (CC/§94). The Defendant then wrote (and published in The
Observer) two articles focussing on Russian influence in British politics,
which contained references to the Claimant [Bundle B/1565, 1572]. The
Defendant considered that during this period, the Claimant’s attitude
towards her changed. He and Mr Wigmore became more hostile (CC/§102).

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21. In March 2018 the Defendant was approached by Mr Chris Kimber who had
been the Claimant’s business partner in diamond mining in South Africa
(CC/§114). Among other things, Mr Kimber informed the Defendant that the
Claimant had sought Russian investment, including from the Russian state-
owned firm, Alrosa, in his diamond mines. The Defendant later obtained an
affidavit Mr Kimber made in South African legal proceedings against the
Claimant in February 2018 [Bundle B/2328].

22. During the same period, the Defendant had continued investigating the
exploitation of data/social media in the Referendum and the 2016 US
election, as well as the role of CA in this – this was on the basis of extensive
discussions with a journalistic source, Chris Wylie. The Defendant saw
documentation generated by CA (CC/§§117-118, 122). This led to a series of
articles being published in The Observer in March 2018 [Bundle B/1599].

23. In June 2018 the Defendant was provided with the text from a significant
cache of emails to/from/copied to the Claimant and/or Mr Wigmore (“the
Emails”) [Bundle B/2749]. These came from the friend of a researcher who
had been working with Isabel Oakeshott, a journalist who ghost wrote the
Claimant’s account of the Referendum campaign, The Bad Boys of Brexit
(“the Book”) (CC§§119-121, 124-126). The Emails contained important
evidence of the relationship between the Claimant and the Russian state (see
further below). After asking detailed questions of the Claimant (which were
not answered) [Bundle B/847-859], the Defendant went on to publish, in The
Observer, four articles about the Claimant’s contacts with representatives or
associates of the Russian government in June and July 2018 [Bundle B/1644,
1674, 1690, 1719].

24. Shortly thereafter, on 13 June 2018, the Claimant and Mr Wigmore appeared
before the UK’s House of Commons’ Digital, Culture, Media and Sport
Committee (“DCMS Committee”), chaired by Damian Collins MP, which
was inquiring into “Disinformation and ‘fake news’”. The Defendant attended

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 this hearing and familiarised herself with the Committee’s reports in July
2018 and February 2019 [Bundle B/2770, 3208], as well as Mr Collins’
remarks on the substantial public interest in the questions asked of the
Claimant and Mr Wigmore and his criticism of their lack of honesty
(CC/§§148, 159-161, 182).

25. In the second half of 2018, the Defendant became aware of further
information published by Channel 4 News and the BBC relating to the
Claimant’s business activities in southern Africa (CC/§162-163, 167). She
was also informed that one of the Claimant’s business partners in southern
Africa, Mr James Pryor, was concerned about the Claimant’s connection to
the Russian state-owned entities (CC/§166).

26. That Autumn, the Defendant discovered that the Labour MPs Tom Watson
and Ben Bradshaw had raised concerns that the Prime Minister had blocked
a security service investigation into the Claimant in 2016 (CC/§§169, 171).

27. In November 2018, the National Crime Agency (“NCA”) had announced that
it was conducting an investigation into the Claimant and Leave.EU, relating
in particular to the source of the funds he donated to Leave.EU. These
matters had been investigated by the EC (see above) and referred to the NCA.
Shortly afterwards, the Defendant engaged in correspondence with a number
of witnesses (many of whom remained anonymous), including from South
Africa, who had provided information to the NCA (CC/§§170, 179-180).

28. In summary, as part of her long running investigation of the matters she
addressed in the TED Talk (and in numerous articles published under her
byline) the Defendant drew upon numerous different, and authoritative,
sources of information. Notably:
a) Conducting interviews/discussions with Mr Wigmore, on 14 February
2017 and in September 2017 (CC/§§13-16, 87) [AV file 61], and (ii) the

11
 Claimant on 25 March 2017, on or around 3 November 2017, and on 9
June 2018 (CC/§§44-66, 98, 142) [Bundle B/722][AV files 55-59].

b) Investigating the spending returns of Leave.EU and the use of data by

the campaign, and following the subsequent investigations into both by
the Electoral Commission and the ICO (CC/§20) [Bundle B/2033, 2037].

c) Interviewing and holding extensive discussions with and/or reviewing

the work of leading academics and think tanks in the fields of electoral
law, data protection law, data science, propaganda/disinformation,
intelligence, international relations and security, and Russia; as well as
with MPs who were concerned about the Claimant’s finances, dark money
and Russian interference in UK politics (e.g., CC/§§ 10, 12, 23-24, 38-39,
67-68, 71, 85, 208).

d) Reviewing the output of, and holding discussions with, specialist

financial journalists at Open Democracy and the Financial Times who
had undertaken extensive investigations of the Claimant’s finances and
the sources of his funds (CC/§§81-82, 90, 208); the articles in question
included: on Open Democracy “How did Arron Banks afford Brexit?” by
Alastair Sloan and Iain Campbell (28 September 2017); in the Financial
Times “How the businesses of Brexit campaigner ‘King’ Arron overlap”
by Cynthia O’Murchu and Henry Mance (30 June 2017) [Bundle B/1533,
1541].

e) Reviewing media articles about, inter alia, Leave.EU, the Claimant, CA,
disinformation and the exploitation of social media, published by the New
York Times, Washington Post, The Guardian, Sunday Times, Open
Democracy, Channel 4 News, the BBC, the New Yorker, American
Interest and the Atlantic Council (CC/§§31, 39, 114, 145, 151-152, 154-
155, 162-163, 167-168, 189). A number of those articles were based in
part on interviews with the Claimant.

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 f) Reviewing the Emails. The Claimant did not dispute the authenticity of
the Emails in conversation with the Defendant about the same.2

g) Discussions with Mr Kimber about the Claimant’s business dealings, and

reviewing an affidavit produced by Mr Kimber in relation to the same
matters.

h) Discussions with confidential sources who had (i) worked at UKIP for an
extended period (CC/§76), (ii) were involved in assessment of Russian
influence operations in Europe (CC/§§184-185), and (iii) knew Mr Pryor
(CC/§166).

i) Analysing the social media output, particularly on Twitter, of the

Claimant and Leave.EU.

j) Reviewing the reports and statements published by the ICO, EC and the
DCMS Committee.

29. After the TED Talk the Defendant continued to have discussions with sources
with knowledge of the Claimant and his affairs. This included discussions
with an individual working on Russian disinformation for a government
agency, who had information which implicated the Claimant in a Russian
influence operation. This source shared two intelligence files with the
Defendant: one about the Claimant’s business activities in South Africa
relating to diamonds and cigarette smuggling (dated 16 May 2019) and the
other about his then wife, Katya Banks (7 April 2019) (CC/§§184-188)
[Bundle B/3319, 3328].

MATTERS KNOWN TO THE DEFENDANT BEFORE GIVING THE TED TALK AND
PUBLISHING THE TWEET

30. By the time the Defendant gave the TED Talk and published the Tweet, and
as a result of and/or in the context of the extensive investigations and

2 Transcript, Day 4, p20, lines 2-9.

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 research summarised above, she was aware of the following significant facts
and matters.

31. The EU Referendum: Campaign spending limits were in place, donations had
to be reported, and donations from foreign individuals and loan
arrangements with foreign donors were not permitted. The Claimant had
given (or loaned) around £8 million to Leave.EU and was Leave.EU’s only
declared source of funding.

32. The sources of the Claimant’s apparent wealth: These and therefore the
sources of his donations were unclear and had never been properly explained.
The Claimant had numerous companies, including offshore in secrecy
jurisdictions. Financial journalists had raised doubts about the financial
health of his companies in the period preceding his donations. The DCMS
Committee had concluded in July 2018 that the origins of the donations were
unclear and stated that the Claimant had failed to satisfy Parliament that
his donations had come from sources within the UK [Bundle B/2821].

33. Russian influence: The Russian state was known to practice grooming and
targeting businesspeople in western democracies by offering them business
deals and funding which could then be used for political purposes to further
Russian interests (CC/§§38-39) [Bundle B/1967]. Concerns had been raised
by authoritative sources about Russia’s relationship with far-right parties
and activists/politicians, including the Claimant and Mr Farage. The British
government had spoken publicly about Russian attempts to influence
elections [Bundle B/2300]. MPs had raised concerns about the role of “dark
money” in the Referendum campaign, in particular from Russia.

34. The Claimant’s public position on Russia: The Claimant’s social media
activity, both through his own Twitter account and that of Leave.EU, showed
that he held strongly pro-Russian views. The Claimant and Leave.EU had
repeatedly expressed strong support for the Russian government and

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 President Putin (e.g., [Bundle B/896-908, 915-916, 923, 942, 944-945, 947-
949, 951, 953, 1007, 1011-1012, 1106, 1148). By way of example, the Claimant
tweeted the week before his November 2015 meeting with the Russian
ambassador, that “Crimea is as Russian as the Isle of Wight is British”
[Bundle B/931, 975].

35. Leave.EU and the Claimant regularly retweeted content from the Russian
embassy in London, the Russian ambassador and/or the Russian ministry of
foreign affairs. This included a statement from the ambassador calling on
“unscrupulous journalists and politicians to ditch ‘fake news’ re Russian
involvement in Brexit” [Bundle B/1042, 1044]; a sinister attack on Theresa
May after she accused Russia of meddling in elections [Bundle B/1072]; a
tweet criticising Damian Collins MP, Chair of the DCMS Committee
[Bundle/1140]; and Russian lines on the Trump-Russia investigation and in
relation to the Salisbury nerve agent attack [Bundle B/1166, 1231, 1234].
Additionally, the Claimant and his associates had wanted to draft a
Leave.EU press release supporting the Russian embassy when then
Chancellor Philip Hammond said in March 2016 that the only country that
wished to see the UK leave the EU was Russia [Bundle B/1674-1675].

36. Meetings/contacts with representatives or associates of the Russian

government: The Claimant had met the Russian ambassador (and other
embassy officials) on a significant number of occasions prior to and shortly
after the Referendum. Russian officials invited the Claimant to numerous
other events and the Claimant proposed meetings to the Russian officials. In
particular:
a) The Claimant met a Russian diplomat (Mr Alexander Udod) at the UKIP
party conference in September 2015 and subsequently received an
invitation from Mr Udod to have lunch with the Russian ambassador at
his residence [Bundle B/2749]. That lunch took place on 6 November
2015. The Claimant (through Mr Wigmore) chose to engage with Mr
Udod, despite their having suspected that he was a Russian intelligence

15
 operative (as the Claimant explains in the Book). In or around March
2018 the UK government expelled Mr Udod from the UK in the wake of
the attempted murder of Sergei Skripal in Salisbury.

b) Following the first lunch, the ambassador invited the Claimant to a

further meeting, which took place on 17 November 2015 [Bundle B/1741-
1746, 2644, 2646, 2749]. At that meeting, the ambassador introduced the
Claimant to Mr Siman Povarenkin, a Russian businessman, for the
purposes of discussing potential investment in the Russian gold mining
industry. This meeting took place shortly before Leave.EU launched its
campaign on 18 November 2015.

c) In January 2016, the Claimant contacted a business associate, Nick van

den Brul, about the potential Russian gold deal and stated that he
intended to “pop in” to see the ambassador [Bundle B/2750].

d) In March 2016, the Claimant accepted an invitation to attend a private

musical concert at the ambassador’s residence [Bundle B/2755].

e) During the week of the Referendum, the Claimant invited the

ambassador and Mr Udod to attend an event he was hosting in a pub on
the day of the Referendum, as well as to watch the results come in at
Leave.EU headquarters [Bundle B/2761].

f) The Claimant met the ambassador at the ambassador’s residence on 19

August 2016 [Bundle B/2758-2760].

g) On a date in mid-November 2016, shortly after the Claimant had

returned from visiting President-elect Trump, the Claimant again visited
the Russian ambassador.

h) On 21 November 2016, the ambassador invited the Claimant to an event

marking the publication of a book [Bundle B/2762].

i) On 22 November 2016, the ambassador invited the Claimant to another

concert [Bundle B/2762].

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37. The Claimant’s accounts of his relationship with the Russian government:
Over an extended period, the Claimant and Mr Wigmore gave contradictory
and misleading accounts about his meetings with Russian officials and the
extent of his relationship with the Russian state. In particular:
a) On 31 October 2016 the Claimant published the Book. In it he admitted
to having met “the KGB’s man in London” (later confirmed to be Mr
Udod) at the UKIP conference in September 2015 and to subsequently
having had a lunch with the Russian ambassador [Bundle B/1909].

b) During his interview with the Defendant in March 2017, the Claimant
referred to having had lunch with the ambassador twice [Bundle B/674;
684] (CC/§§55).

c) On 1 November 2017, during a call with the Defendant, the Claimant

responded to a question about when he had last seen the Russian
ambassador by stating that he had not seen him since he had had lunch
with him, which appears to have been a reference to the lunch in
November 2015 referred to in the Book (CC/§98) [Bundle B/796] [AV file
69]. He said the same in the November 2017 Leave.EU press release, in
response to the EC commencing its investigation into the source of his
donations; namely that, in fact, his “sole involvement” with the Russians
was a “boozy 6 hour lunch with the Ambassador” [Bundle B/2265].

d) The Claimant gave an interview to the Sunday Times on 10 June 2018 in

which he claimed there had been two lunches and a cup of tea with the
ambassador [Bundle B/1662]. The next day he said the same on Nigel
Farage’s radio show, with the second coming after the election of Donald
Trump in November 2016 [Bundle B/2591].

e) The next day, in the hearing before the DCMS Committee the Claimant
admitted to having met representatives of the Russian government on
three occasions (the lunch with the ambassador, the meeting with a
businessman [i.e., Mr Povarenkin], and after their visit to Donald Trump)
[Bundle B/2646, 2649].

17
 f) Later in interviews with the New York Times and the Washington Post,
published respectively on 29 and 30 June 2018, he admitted to having
had a fourth meeting with the Russian ambassador; and in the New York
Times article was also reported to have admitted a meeting in May 2016
relating to a gold mine in Guinea [Bundle B/1708; 1709, 1713].

38. The Claimant and Mr Wigmore had also given conflicting/misleading

accounts about who initiated the contact with the Russian government and
the reasons for the contact. Mr Wigmore gave evidence to the DCMS
Committee in June 2018 that he and the Claimant instigated the meeting
with the ambassador, and not the other way around. He said that they did so
because they thought it would be “nice” to chat to them because the
Claimant’s wife was Russian, before suggesting that it was in fact to do with
his role as a Belizean diplomat and related to a banana farm [Bundle B/2620].
Yet in the Book, published on 31 October 2017, the Claimant said that the
Russians had in fact invited them for lunch [Bundle B/1907]. The Claimant
confirmed this at the DCMS Committee [Bundle B/2621]. Shortly afterwards,
in the interview with the New York Times, the Claimant said that he and Mr
Wigmore had asked to meet the ambassador [Bundle B/1708]. Then, in or
around March 2019, Mr Wigmore told the New Yorker that the Book
contained an error and he, and not Mr Udod, had suggested the lunch at the
embassy, while the New Yorker reported that another member of the
Claimant’s team had in fact suggested that it was Mr Udod who initiated the
meeting [Bundle B/1810].

39. On 19 August 2016, Mr Wigmore passed to the Russian embassy confidential

documents concerning the indictment of Mr George Cottrell (Nigel Farage’s
head of fundraising and a member of Leave.EU’s team) in the United States
[Bundle B/1901]. In June 2018 the Claimant and Mr Wigmore falsely told the
DCMS Committee that the only information they had ever passed to the
Russian Embassy was the phone number of the Trump transition team
[Bundle B/2631-2, 2648]. When asked about the above allegation, Mr

18
 Wigmore specifically denied having passed any information about George
Cottrell to the Russian Embassy [Bundle B/2650].

40. The DCMS Committee’s comments about the Claimant: It had stated in its
interim report on “Disinformation and 'fake news': Interim Report” in July
2018 that the Claimant and Mr Wigmore had misled the Committee on the
number of meetings which took place with the Russian embassy [Bundle
B/2819]. The Committee reiterated this view when it published its final
report in February 2019 [Bundle B/3283-3284]. The DCMS Committee had
also raised specific concerns about the Claimant’s relationship with the
Russian government.

41. The business and investment opportunities: Mr Siman Povarenkin (to whom
the Claimant was introduced by the Russian ambassador) proposed two
investment opportunities to the Claimant. The first related to the
consolidation of a number of smaller Russian gold mining companies into one
company owned by Mr Povarenkin, with the involvement of the state-owned
Sberbank. The day after being introduced to Mr Povarenkin, the Claimant
emailed him and expressed his enthusiasm for gold and his interest in
helping. The Claimant pursued this opportunity (through Oakwell Capital, a
company in which he had a stake) in January 2016, with the clear expectation
that financing would be provided by Sberbank [Bundle B/2750-2751]. The
other deal related to the partial privatization of the Russian state-owned
diamond enterprise, Alrosa [Bundle B/1708]. Ultimately, a company of the
Claimant’s business partner and close associate, Mr Jim Mellon, who had
been copied in on the Claimant’s correspondence in relation to the Alrosa
deal, participated in this process. Additionally, there was information from
the Claimant’s business associates in Africa indicating that the Claimant had
other dealings with Russians in relation to diamonds and gold, he had sought
Russian investment, and a Russian ambassador had introduced him to a
business opportunity [Bundle B/2376] (CC/§166-167).

19
42. The Claimant only said more when the Emails emerged: It was not until the
Emails were leaked (and seen and reported on by UK and US journalists)
that the Claimant started publicly to address his relationship with the
Russian government in any detail. Until then he had sought to conceal the
extent of the relationship from the Defendant and others. The Claimant
never explained why he sought to hide this relationship. He did not respond
to the very detailed queries raised by the Defendant about his relationship
with the Russian state, prior to the publication of The Observer articles based
on the Emails (CC/§§140-141) [Bundle B/848-850, 852-859, 867-868, 870].

43. The Claimant’s accounts of why the Russian government cultivated him: The
Claimant had never provided a cogent or consistent explanation for why
representatives of the Russian government and their associates decided to
cultivate a relationship with him and to offer him business opportunities.
During a phone call on 9 June 2018, the Claimant suggested that he went to
the Russian embassy because he was a businessman but had no answer to
the Defendant’s questions that he may have been targeted or used by the
Russian government (CC/§143). Shortly afterwards, in the hearing before the
DCMS Committee, the Claimant conceded that Russian officials would
“obviously” not have invited them to meet the ambassador had he not been
“involved in Brexit” [Bundle B/2621]. The DCMS Committee concluded that
the Claimant “seemed to want to hide the extent of his contacts with Russia”
and that he had walked out of the hearing in order to avoid scrutiny of the
content of their discussions with the Russian embassy [Bundle B/2819-2820,
3283]. Subsequently, in an interview with the New York Times, he asked,
rhetorically: “I wonder what the Russians wanted from me?” [Bundle B/1709].

44. The Claimant’s wife: Suspicions had been raised that the Claimant’s then
Russian wife may be working for or being used by the Russian state (CC/§§35-
36). In particular, information published by the New Yorker in March 2019,
quoting (on the record) a former Russian military intelligence officer,

20
 suggested that Russian intelligence was involved in the life and career of Ms
Paderina (CC/§189); [Bundle B/1809].

45. The government’s failure to investigate: The British government had not
acted properly to investigate real concerns (including those of the DCMS
Committee) about Russian interference in British politics, and in the
Referendum in particular. Indeed, it had been suggested by several MPs and
the media that the government may have blocked the security services from
investigating particular matters. There had been no official inquiry and no
equivalent of the Mueller investigation in the US (CC/§ 176, 188, 193-194,
196, 209).

THE CLAIMANT’S REACTION TO THE DEFENDANT’S INVESTIGATION AND

PUBLICATIONS

46. Throughout her investigations the Defendant sought to engage with the
Claimant and Mr Wigmore. In addition to seeking information and putting
allegations to both men during the oral discussions referred to above, when
investigating particular issues implicating the Claimant, she regularly sent
him and Mr Wigmore (as the Claimant’s spokesperson) emails and tweets
posing questions and soliciting his responses to allegations (for example
[Bundle B/790, 809-810, 821-822, 824-827, 836-837, 841-846, 848-850, 852-
859, 862, 867-868, 870, 879-880, 1032, 1146-1147, 1179, 1184]). For a period,
the Claimant and Mr Wigmore responded substantively; however, from
around November 2017 they ceased meaningfully to engage and often did not
respond or provided infantile responses abusing her as a journalist (e.g.,
[Bundle B/879-880]).

47. Significantly, the Claimant was specifically invited on several occasions to

comment on issues relating to his relationship with the Russian state –
arising from the leak of the Emails – but declined to do so substantively or at
all (CC/§§140-141, 143, 153, 211). Notably, and by way of example only:

21
 a) On 8 June 2018, in relation to publishing a story that would suggest that
the Claimant had multiple meetings with Russian government officials,
and raise questions about the relationship, his accounts of the same and
whether he profited from Russian business deals [Bundle B/2558-2559].3

b) On 3 July 2018, in relation to meetings with Russian officials [Bundle

B/870].4

c) On 6 July 2018, in relation to the part privatisation of the Russian state-

owned diamond company, Alrosa [Bundle B/871].5

d) On 27 August 2018, in relation to Tom Watson MP seeking confirmation

that the NCA would investigate Russian interference in the
Referendum.6

e) On 19 December 2018, with reference to the Claimant’s conduct in

relation to diamonds [Bundle B/881].7

48. The Claimant frequently attacked the Defendant on social media, subjecting
her to misogynistic threats/abuse including tweeting (a) a video which
appeared to condone violence against her (CC/§108) [Bundle B/1063],8 and
(b) suggesting that in Russia she would not be so “lippy”, i.e., would not
engage in her investigative journalism if she were in Russia [B3/1677]. The

3 The Claimant confirmed in evidence that he did not respond. Transcript, Day 2, p27; p28,
lines 1-8.
4The Claimant confirmed in evidence that he did not respond. Transcript, Day 2, p57, lines
21-25; p58, line 1.
5The Claimant confirmed in evidence that he did not respond. Transcript, Day 2, p58, lines
2-11.
6The Claimant confirmed in evidence that he did not respond. Transcript, Day 2, p60, lines
4-9.
7The Claimant confirmed in evidence that he did not respond. Transcript, Day 2, p61, lines
20-25, p63, lines 1-4.
8 Transcript, Day 4, p11, lines 9-12.

22
 Defendant perceived this to be part of a campaign of harassment of her as a
female journalist.9

49. The Claimant also repeatedly rubbished the Defendant’s journalism on social
media and made false allegations of criminal wrongdoing (e.g., [Bundle
B/1016, 1020, 1048, 1112, 1120, 1146, 1159-1160, 1179, 1184-1185 1202,
1212]; Andrew Marr show [Audio file 634]). He also wrongly reported her to
the police [Bundle B/860, 862, 864, 866]. At trial, the Claimant resiled from
the allegation that the Defendant had “hacked”10 her emails but instead
falsely alleged that she had blackmailed a researcher and engaged in theft.11
By the time the cases were closed, the Claimant had not seen it fit to
withdraw what amount to scurrilous allegations. The Defendant understood
(and continues to understand) all this conduct to be designed to deter her
from her investigations and publications.

50. Throughout the period February 2017 to April 2019, the Defendant published
numerous articles which focussed, or touched, on the conduct of the Claimant
and Leave.EU. These articles were published in The Observer, on Guardian
News & Media’s website (guardian.co.uk), and in the New York Review of
Books. She also gave an interview on the BBC’s Media Show in June 2018.
In a significant number of these, the Defendant addressed the Claimant’s
relationship with the Russian government. By way of example, on the Media
Show the Defendant stated that the Claimant had been “lying to and
misleading the public for two years … there is absolutely no doubt and Arron
has admitted that” in relation to his meetings with Russian officials and she
referred to “massive, continued, undisclosed contact with the highest levels of
the Russian government” [AV file 496]. In an article in The Observer later the
same month the Defendant referred to the Claimant’s relationship with
Russian officials as being “partly hidden and covert” and one about which he

9 Transcript, Day 4, p10, lines 22-25; p11, lines 1-4.

10 Transcript, Day 3, p183, lines 9-15.
11 Transcript, Day 2, p52, lines 11-13, 16-25; p53, lines 24-25; p54, lines 1-4.

23
 had lied for two years; she went to on say that “[w]hat we know now is that
this relationship [with the Russians] is deeper and more complex than we
could have imagined. And that Banks and Wigmore lied about it: to the public,
to parliament. And we don’t know why” [Bundle B/1674-1679]. The Defendant
had also tweeted accusing the Claimant of lying about his relationship with
Russia [B3/1206]. The Claimant never took legal action against the
Defendant, or even asked for the record to be corrected, in respect of these
allegations, which are in substance indistinguishable from the single line in
the TED Talk about the Claimant having lied about his covert relationship
with the Russian government (CC/§§157, 177, 200). The Claimant's solicitor
had written several times to The Observer demanding clarification of other
matters relating to these meetings but never brought up this article.

THE TED TALK & THE TWEET

51. TED initially approached the Defendant to give a talk in 2018 (CC/§190)
[Supp Bundle/3732]. She was formally invited on 22 March 2019 [Bundle
B/199]. She produced a draft in February 2019, which she redrafted and
refined, and which was shared with TED in advance for comment and fact
checking (CC/§190). The TED Talk was delivered live at the conference and
recorded. It bears emphasising that it took the form of an oral opinion or
comment piece; it was not intended to constitute news reporting and should
not be viewed as such.

52. The Defendant did not make any new claims or allegations in the TED Talk.
Reference to the Claimant is limited to (i) his appearing in a photograph,
alongside Mr Trump, Mr Farage and others, during their post-2016 US
election visit to Trump Tower, which featured in the Defendant’s slides; and
(ii) with reference to that photograph, the Defendant stating:

“And this man, Arron Banks, he funded this campaign. And in a

completely separate case, he's being referred to our National Crime
Agency, our equivalent of the FBI, because our electoral commission
has concluded they don't know where his money came from. Or if it
was even British. And I'm not even going to go into the lies that

24
 Arron Banks has told about his covert relationship with the Russian
government”.12

53. On 26 June 2019, the Defendant tweeted the same allegation about the
Claimant and encouraged people to watch the TED Talk in response to
receiving a letter before claim in respect of that publication.

C. THE WITNESS EVIDENCE

THE CLAIMANT’S EVIDENCE

54. It is submitted that the Claimant presented as an unreliable and untruthful
witness. A striking feature of his oral evidence was his answering a very large
number of questions by stating that he could not remember or recall the
matters about which he was being asked. This included questions about
several apparently significant and memorable events, including a lunch
hosted in his honour. By way of example, he claimed not to remember:
meetings he had with the Russian ambassador, notable media stories of
which he was the subject and in which serious questions were raised about
his conduct; a slideshow presentation sent to him when he was offered – and
expressed an interest in – investment in Russian gold mines.13 It is simply
not credible that the Claimant would have no recollection of such events. The
obvious inference to be drawn from the Claimant’s approach to answering
questions put in cross examination is that he did not wish to provide truthful
answers, and he therefore avoided the question by relying on repeated
failures of memory. For all these reasons, the Defendant submits that the
Claimant’s evidence should be given very little weight.

12 The words complained of are underlined.

13 Transcript, Day 1, p79-80, 119-123, 126-127, 129-133; Day 2, p33-34.

25
THE DEFENDANT’S EVIDENCE
55. The Court had the opportunity to observe the Defendant give evidence for
two and a half days. She was subject to robust and, at times, difficult cross
examination. Much of that cross examination concerned thought processes
and matters in mind at particular moments as long as five years ago. A very
considerable proportion of that cross examination concerned extraneous
issues, with no obvious relevance to the issues in the case. The questioning
seemed to be designed to attack the Defendant’s credibility as a witness and
her integrity as a journalist.

56. The Defendant was clearly nervous and found the experience of giving
evidence to be very stressful. Indeed, she gave evidence as to the impact that
giving evidence and these proceedings generally have had on her mental
health.14 That is something which may properly be taken into account when
assessing her as a witness and evaluating her evidence. It is trite that
recalling and recounting such matters under cross examination is a
challenging task for any witness. But in spite of all of this, the Defendant, it
is submitted, presented as an honest witness. She was plainly doing her best
to recollect the detail, and her historical state of knowledge, in particular at
the time of giving the TED talk, in respect of a complex and long-running
journalistic investigation.

D. ISSUE 1: SERIOUS HARM

57. The Claimant must prove that each of the statements he complains of is
defamatory within the meaning of section 1(1) of the 2013 Act. If the serious
harm test is not satisfied, the Claimant has no cause of action in respect of
the statement in question.

14 Transcript, Day 4, p7, lines 18-25; p8, lines 13-14; p10, lines 22-24, p13, lines 15-16; p42,
lines 19-20.

26
LEGAL PRINCIPLES
58. Since the coming into force of section 1(1) of the 2013 Act, a statement is not
defamatory unless its publication has caused or is likely to cause serious
harm to the reputation of the claimant. The interpretation of this provision
was settled by the Supreme Court’s decision in Lachaux v Independent
Print [2019] UKSC 27; [2020] AC 612 (Lord Sumption giving the judgment
of the Court), from which the following core propositions can be derived (at
[12] – [16]) [AB/668-670]:
a) The application of the serious harm test has to be determined by
reference to the “actual facts about [a statement’s] impact” and not just to
the meaning of the words.

b) The reference to the publication of a statement having caused serious

harm is to the consequences of the publication, and not the publication
itself. That is historic harm, which is shown as a matter of fact to have
occurred – it necessarily calls for an investigation of the impact of the
statement.

c) The reference to serious reputational harm which is “likely” to be caused

by the publication of the statement complained of is to probable future
harm and not to any inherent tendency of the words/statement.

d) In respect of both past and future serious harm, the test cannot be
satisfied only by reference to the “inherent tendency” of words/statement
complained of. It is necessary also to consider their actual or future
impact on those to whom they were communicated or are likely to be
communicated.
e) Whether or not the Claimant had a reputation to be harmed among the
people to whom the statement is published may be relevant to the
assessment of whether or not it has caused or is likely to cause serious
harm.

59. Accordingly, a claimant must establish that (a) the publication of the
statement complained of has, as a matter of fact, either (i) caused harm to

27
 their reputation and/or (ii) that it is probable that it will in future do so, and
(b) such harm is serious. In respect of the latter, as Saini J emphasised in his
recent judgment in George v Cannell [2021] EWHC 2988 (QB); [2021] 4
WLR 145, one must not lose sight of the statutory qualifier serious harm (at
[117]).

60. Section 1 of the 2013 act refers to serious harm caused or likely to be caused
by a statement. Where, however, a claimant relies on the inherent tendency
of the words/statement complained for the purposes of serious harm, the
Courts appear to have proceeded (without argument) on the basis that that
is to be assessed by reference to the single defamatory meaning found by the
Court (e.g., Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB);
[2016] QB 402 at [57] – [59] and [65] (Warby J)). This point is not, however,
the subject of any reasoned judgment. It is not conceded by the Defendant
that, when assessing whether the serious harm test is satisfied, that the
assessment of the gravity of the statement15 is assessed solely by reference
to the single meaning.

61. What is clear is that the issue of serious harm should not be considered “in
blinkers” (Umeyor v Innocent Ibe [2016] EWHC 862 (QB) at [78]). That
phrase derives from the case law on libel damages. In its judgment in
Burstein v Times Newspapers [2001] 1 WLR 579 the Court of Appeal (Sir
Christopher Slade, with whom Aldous and May LJJ agreed) stated that
damages should not be assessed in blinkers, that is in “ignorance of
background context directly relevant to the damage which the claimant claims
has been caused by the defamatory publication” (at [47]). That applies equally
to the assessment of serious harm.

62. A further read across from the law on libel damages, and consistent with Lord
Sumption’s remarks at [16] in Lachaux (see above), is the principle that:

15 The language of the statute is “statement”, not imputation (c.f. s 2 of the 2013 Act).

28
 “A person who has been libelled is compensated only for injury to the
reputation they actually had at the time of publication. If it is shown
that the person already had a bad reputation in the relevant sector of
their life, that will reduce the harm, and therefore moderate any
damages” (Lachaux v Independent Print Media [2021] EWHC 1797
(QB) [2022] EMLR 2 at [209] (Nicklin J)) [AB/896].

63. If a claimant complains of more than one statement, they must establish that
each satisfies the serious harm test; it is not permissible to look at the
cumulative reputational harm of different statements (Sube v NGN [2018]
EWHC 1961 (QB); [2018] 1 WLR 5767 at [22] (Warby J)).

SUBMISSIONS
64. The Defendant’s overarching submission is that the Claimant has not
discharged the burden of proving that each of the statements complained of
has caused or is likely to cause (a) harm to his reputation, and (b) that any
such harm can properly be characterised as serious.

65. The Claimant’s case on serious harm (ReAmPoC/§§15-16) is thin and not
properly particularised. The starting point is that he has failed to specify
whether he relies on reputational harm which has been caused (in which case
he must specify what that harm is) or which is likely to be caused, or both.
He has failed to plead “actual facts” about the “impact” of the statements
complained of; he simply pleads bare assertions. His pleaded case is confined
to the inherent tendency of the words complained of and the scale of the
publication (as to which see further below). That is not, it is submitted, a
sufficient basis for the Court to conclude that the serious harm test is
satisfied in respect of each of the statements (separately).

66. Serious harm must be assessed with reference to the reality of the
circumstances in which the two statements were published and continue to
be published; this must not be assessed “in blinkers”. With that in mind, it is
submitted that the following points are significant:

29
 a) The Claimant is a public figure (indeed he conceded that he is a
“controversial public figure”)16 who accepts that he is thick skinned and
expected to receive “personal criticism” in connection with his role in the
Referendum campaign (AB/§31).17 As is set out below (see paragraph 83)
the case law under Article 10 of the Convention makes it clear that public
and political figures chose to expose themselves to robust scrutiny and
commentary; they are expected to display a greater degree of tolerance.
Those principles are relevant when applying section 1(1) of the 2013 Act.

b) The TED Talk was published at a time when there had been many
months of extensive publicity, in this jurisdiction and around the world,
and public debate on allegations about the Claimant’s relationship with
the Russian government, as well as his providing misleading and
untruthful accounts in relation to it. Much of the coverage and debate
was extremely critical of the Claimant and emanated from highly
respected sources including a parliamentary committee, The Observer,
The Guardian, and Channel 4 News. Against this backdrop, it is wholly
unreal to suggest that 24 words from one talk have caused or are, in the
future (nearly 3 years after their publication), likely to cause serious
reputational harm to the Claimant. That is particularly true in view of
the fact that the TED Talk did not have the Claimant as its focus: far
from it, he was mentioned in passing and complains about just 24 words
in a speech which lasted approximately 15 minutes.
c) The Claimant had publicly and robustly (including on high profile
platforms with large audiences, such as on Twitter, in interviews given
to major international media organisations and in Parliament) made his
position on his relationship with the Russian government clear. The
Court may reasonably infer that anyone with an interest in this issue
and/or the Claimant would have been well aware of his position. That is
a critical component of the context in which serious harm falls to be

16 Transcript, Day 1, p72, lines 11-12; p73, lines 11-12.

17 Transcript, Day 1, p18, lines 3-4.

30
 assessed because any harm which may have been caused is likely to have
been neutralised by viewers / readers being aware of the Claimant’s
position.
d) It may reasonably be inferred that the vast majority of readers of the
Tweet, in particular, which was published to the Defendant’s followers
on Twitter, are unlikely to be persons in whose eyes the Claimant had
any meaningful reputation to be harmed.

67. By the time the statements complained of were published, the Claimant had
no or no meaningful general reputation in respect of the aspects of his
reputation engaged by the statements he must prove satisfied the serious
harm test. By way of example, the DCMS Committee had found that the
Claimant had misled Parliament in respect of his relationship with Russian
officials and he had sought to hide the same. The Committee’s Chair, Mr
Collins MP, had publicly accused the Claimant of lying. Channel 4 had
published a series of serious allegations about the Defendant. For her part,
the Defendant had accused him of lying about his relationship with Russia
on the BBC’s Media Show, as well as in articles published in The Observer
and online at guardian.co.uk in June and July 2018. These allegations had
been in the public domain for around 9 months by the time the TED Talk was
published. Additionally, Leave.EU and the Claimant had been the subject of
enforcement action by both the EC and ICO in relation their activities during
the Referendum campaign, which had also been widely reported.

68. The Claimant has called no evidence from anyone else going to the question
of harm to his reputation. He relies only on his own testimony. The
Claimant’s very limited evidence of the impact of the statements complained
of on his reputation also falls a long way short of proving serious harm
(AB/§§61, 63-67). For the reasons set out above, it is submitted that little if
any weight can safely be attributed to the Claimant’s evidence. But in any
event, that evidence does not withstand scrutiny:

31
 a) The Claimant relies on the fact that an unspecified business of his
was asked about the litigation (not the statements published by the
Defendant) when seeking to raise funds. It is not accepted that this
is probative of the statements causing serious harm to his reputation.
Further, the Claimant rightly accepted in cross examination that he
could not say that the statements were the reason for this or for his
allegedly having had bank accounts cancelled “off the back of Russia
reporting”.18
b) The evidence relating to the Claimant’s son is wholly unclear,
including in relation to when this is said to have taken place. It is
said that comments had been made about the Claimant “being
involved with the Russians” (AB/§65). It cannot properly be inferred
that any such comments were a reference to either of the statements
at issue in this case (particularly in circumstances in which there had
been widespread publicity about this) or that such comments are
evidence of serious reputational harm.
c) The Claimant’s evidence about a member of the public throwing a
drink on him after the proceedings “had been announced” is not
evidence of the statements having caused or being likely to cause
serious harm to the Claimant’s reputation (AB/§66).

69. It is striking that the Claimant has adduced no evidence of, nor it appears,
sought to obtain any evidence as to the extent of the publication of either of
statements complained of in this jurisdiction. It is submitted that, given that
TED is an American entity, considerable caution is necessary when drawing
inferences about the scope of publication.

70. Finally, the allegations made in the statements complained of are not at the
most serious end of the scale of libels, such that serious reputational harm
can straightforwardly be inferred. Allegations that national political figures

18 Transcript, Day 2, p64, lines 19-25, p65, p66, lines 1-23.

32
 have lied about their conduct in that capacity are increasingly common in
contemporary political discourse, as events in the last few weeks have shown.

E. ISSUES 2, 3 AND 4: PUBLIC INTEREST DEFENCE

LEGAL PRINCIPLES
71. The Defendant relies on the defence contained in section 4 of the 2013 Act.
So far as is material, it states that:

(1) It is a defence to an action for defamation for the defendant to show

that—
(a) the statement complained of was, or formed part of, a statement on
a matter of public interest; and
(b) the defendant reasonably believed that publishing the statement
complained of was in the public interest.

(2) Subject to subsections (3) and (4), in determining whether the defendant
has shown the matters mentioned in subsection (1), the court must have
regard to all the circumstances of the case.

(4) In determining whether it was reasonable for the defendant to believe

that publishing the statement complained of was in the public interest,
the court must make such allowance for editorial judgement as it
considers appropriate.

(5) For the avoidance of doubt, the defence under this section may be relied
upon irrespective of whether the statement complained of is a statement
of fact or a statement of opinion.

72. The Courts have referred to this defence as the “public interest defence” (e.g.,
Economou v De Freitas [2018] EWCA Civ 2591; [2019] EMLR 7 [AB/614])
– that shorthand is adopted here. The principles concerning the application
of this defence are addressed below. At the outset, it bears emphasising that,
unlike much of the law of libel, the application of the public interest defence
is principles rather than rules based. As Lord Steyn observed in Reynolds v
Times Newspapers [2001] 2 AC 127: “this is a corner of the law which could
do with the minimum of legal rules” (at 214B) [AB/92-94].

33
73. Before turning to section 4 of the 2013 Act, it is instructive to consider section
4’s common law predecessor and also the European Convention on Human
Rights (“the Convention”), which provided the context for the development
of the common law and the enactment of section 4 of the 2013 Act.

REYNOLDS DEFENCE
74. Section 4 has its origins in the common law defence of “Reynolds privilege”19
or the “Reynolds defence”, which takes its name from the Appellate
Committee of the House of Lords’ seminal decision in Reynolds [AB/6]. In
that case the Court recognised that a publisher may have the protection of
privilege (and thus a complete defence) in respect of the publication, to the
world at large, of a defamatory imputation of fact, even if that statement
cannot be shown to be true. That depended on the coexistence of a duty to
impart and a public interest in receiving (or a right to know) the information
in question. The assessment of whether a publication was privileged
depended on all the circumstances and, in particular, whether the publisher
conformed to the standards of responsible journalism (p.197D-G, 202B-C, E
(Lord Nicholls)20, 213D, 214A-215E (Lord Steyn) [AB/76, 81, 92-94]).

75. Through two subsequent judgments, the House of Lords and Supreme Court
refined and clarified Reynolds privilege. In Jameel v Wall Street Journal
[2006] UKHL 44; [2007] 1 AC 359 the majority of the Appellate Committee
moved away from “classic” duty and interest/right to know approach to
privilege and framed it as a defence (Lord Hoffmann at [50], Lord Scott at
[144], and Baroness Hale at [146] [AB/154, 179-180]). Giving the leading
judgment, Lord Hoffmann (with whom the other members of the Committee
agreed) held that the Reynolds defence encompassed two questions: (i)

19The term “Reynolds privilege” was often used, but the House of Lords / Supreme Court later
suggested that it was misleading to refer to the defence as privilege; e.g., Jameel at [43] –
[47] (Lord Hoffmann), and Flood at [27] (Lord Phillips) [AB/333, 338-339].
20Lords Cooke and Hobhouse agreed with the judgment of Lord Nicholls. Lords Steyn and
Hope dissented on the question of disposal but not on the existence of Reynolds privilege.

34
 whether the subject matter of the article was a matter of public interest, and
(ii) if so, whether the steps taken to gather and publish the information were
responsible and fair (at [48] and [53] [AB/153-155]). This approach was
endorsed by the Supreme Court in Flood v Times Newspapers [2012]
UKSC 11; [2012] 2 AC 273 [AB/321], albeit with subtle differences of
formulation. Lord Phillips stated that the Reynolds defence protects the
publication, to the world at large, of defamatory statements where two
conditions are met:

“(i) it was in the public interest that the information should be

published and (ii) the publisher has acted responsibly in publishing
the information, a test usually referred to as “responsible
journalism” (at [2]) [AB/327].

Lord Brown distilled the question (or at least the second of the two issues
referred to above) as follows:

“could whoever published the defamation, given whatever they knew

(and did not know) and whatever they had done (and had not done)
to guard so far as possible against the publication of untrue
defamatory material, properly have considered the publication in
question to be in the public interest?” (at [113]; see also [184] (Lord
Clarke)) [AB/356-357, 379].

76. As is apparent from the judgment in Reynolds, the development of that

defence was heavily influenced by the Convention and, in particular, Article
10 and its jurisprudence (see e.g., p.203H-204F (Lord Nicholls) p.206H, 208A-
B, 211B, 214H-215E (Lord Steyn) [AB/82-83, 85, 87, 90-91]). Lord Phillips
said in the subsequent case of Flood that Reynolds privilege “reflected a
recognition on the part of the House of Lords that the existing law of
defamation did not cater adequately for the importance of the article 10 right
of freedom of expression” (at [46]) [AB/339]. The decision in Reynolds was
later interpreted as “enlarg[ing] the protection enjoyed by the media” (Flood
(SC), at [44] (Lord Phillips), [176] (Lord Mance) [AB/338, 377]), “carrying the
law forward in a way which gave much greater weight than earlier law to the
value of informed debate of significant public issues” (Jameel at [28] (Lord
Bingham) [AB/148]), and redressing the balance “in favour of greater freedom

35
 for the press to publish stories of genuine public interest” (Jameel at [38]
(Lord Hoffmann) [AB/150]).

THE CONVENTION BACKDROP

77. Article 10(1) of the European Convention on Human Rights (“the
Convention”), the right to freedom of expression, protects the right to
impart and to receive information and ideas. Article 10(2) recognises that
the right carries duties and responsibilities and can be subject to restrictions,
including on the basis of the protection of the reputation or rights of others,
provided that such restrictions are, inter alia, necessary in a democratic
society (and thus proportionate). Article 10 and its jurisprudence (and that
relating to Article 8, the right to a private and family life) are important
because section 4 of the 2013 Act has to be interpreted and applied in
conformity with these rights (e.g., Doyle v Smith [2018] EWHC 2935 (QB);
[2019] EMLR 15 at [102]) [AB/601].

78. The starting point under Convention case law is that the press has a “duty
… to impart—in a manner consistent with its obligations and
responsibilities—information and ideas on all matters of public interest” and
the public has a right to receive them (e.g., Bédat v Switzerland (2016) 63
EHRR 15 [GC] at [50]).21 The Grand Chamber has held that the press is “a
vector for disseminating debates on matters of public interest” but it also
serves the additional function of “revealing and bringing to the public’s
attention information capable of eliciting such interest and of giving rise to
such a debate within society” (Couderc & Hachette Filipacchi Associés v
France [2016] EMLR 19 (GC) at [114] [AB/1268]).

79. This case concerns “political speech” or “political expression”. In Campbell v

MGN [2004] UKHL 22; [2004] 2 WLR 1232 Baroness Hale described this as

21In Reynolds Lord Steyn described this principle as being the foundation of our law of
qualified privilege of political speech (p.215A) [AB/94].

36
 being “[t]he free exchange of information and ideas on matters relevant to the
organisation of the economic, social and political life of the country” (at
[148]).22 Noting that such speech is crucial to any democracy, Baroness Hale
stated that this type of speech is “top of the list”, when it comes to speech
which is deserving of protection (at [148]).23 The concept of political speech or
political expression has been given a broad interpretation in the Strasbourg
jurisprudence and domestically (see Beatson J’s detailed review and
application of the authorities in R (Calver) v Adjudication Panel for
Wales [2012] EWHC 1172 (Admin); [2013] PTSR 378 at [57] – [64] [AB/404-
406]).

80. The freedom of the press on political matters has been held to be a “central
aspect” of the freedom of expression protected by Article 10 of the Convention
(Lingens v Austria (1985) 7 EHRR CD446 at [82] [AB/964-965]). In the
same case, the Strasbourg Court held that the freedom of expression is of
“particular importance in a democratic society where, […] the matter
discussed relates to political issues, or more precisely, the behaviour and
attitudes of individual politicians in matters of public interest” (Lingens at
[73] [AB/963]). With this in mind, the Grand Chamber of the Strasbourg
Court has repeatedly emphasised the highly protected status of such speech
under Article 10, stating that:

“[T]here is little scope under art.10 § 2 of the Convention for

restrictions on freedom of expression in two fields, namely political
speech and matters of public interest. …. A degree of hostility and
the potential seriousness of certain remarks do not obviate the right
to a high level of protection, given the existence of a matter of public
interest” (e.g., Bédat [GC] at [49]) (emphasis added). 24

22These observations were made in the context of a discussion about the balancing of Article
8 and Article 10 ECHR in the context of a privacy case.
23This view has been echoed by the Supreme Court of Canada which has frequently described
political speech as “the single most important and protected type of expression”, which lies “at
the core of the guarantee of free expression” (e.g., Harper v. Canada (Attorney General)
[2004] 1 SCR 827 at [11] (McLachlin CJC)).
24See also Lindon v France (2008) 46 EHRR 35 at [46] [AB/1126]). The Supreme Court has
held [noted or held?] that these observations are consonant with the common law (Joseph v
Spiller [2010] UKSC 53; [2011] 1 AC 852 at [78] – [79] (Lord Phillips) [AB/310]).

37
81. Accordingly, any restrictions on political speech are to be “strictly construed”
(Standard Verlags GmbH v Austria (2008) 47 EHRR 58 at [49]
[AB/1160]). Where such speech in question is on a matter of public interest,
an interference “cannot be compatible with Article 10 of the Convention unless
it is justified by an overriding requirement in the public interest” (Fressoz &
Roire v France (2001) 31 EHRR 2 at [51]) (emphasis added) [AB/1057]. It is
well established that the “overriding requirement in the public interest”
threshold is higher than a simple test of necessity (see e.g., Goodwin v UK
(1996) 22 EHRR 123 at [39] – [40] and Sanoma Uitgevers v The
Netherlands (GC) [2011] EMLR 4 at [51] and [90])).25 An interference with
Article 10 rights (including by way of a judgment and any relief granted) in
the context of the publication of political speech will not be necessary in a
democratic society – and will therefore breach Article 10 – unless it is
established that there is an overriding requirement in the public interest for
that interference.

82. The enhanced protection given to political speech is also reflected in the case
law on the Reynolds defence. In that appeal, Lord Nicholls held that a court
should be “slow to conclude” that the defence is not made out “when the
information is in the field of political discussion” (Reynolds, p.205F) [AB/84].
More recently, Warby J (as he then was) emphasised the importance of
ensuring that the law of defamation does not stifle political debate and that
political speech is protected from the chilling effects which the law of
defamation can have (Barron & Healey v Vines [2015] EWHC 1161 (QB)
at [45] and [59]).

83. Where the subject of a publication is “acting in a public context, as a political

figure … or public figure …” or has otherwise “entered the public scene”, that

25Those cases concern the enhanced justification required in the context of source protection
but the Strasbourg Court has held that the same principle applies here.

38
 has important implications (e.g., Axel Springer v Germany [2012] 55
EHRR 6 [GC] at [91]; Kurier Zeitungsverlag und Druckerei GmbH v
Austria (No 2) (2012) 34 BHRC 121 at [55]). The Strasbourg Court has
consistently held that the limits of acceptable criticism are wider where the
subject is a politician, as compared to a “private citizen”. That is because they
knowingly lay themselves “open to close scrutiny of [their] every word and
deed by both journalists and the public at large, and […] must consequently
display a greater degree of tolerance” (e.g., Lindon v France (2008) 46 EHRR
35 at [46] [AB/1126]; Lingens v Austria (1986) 8 EHRR 407 at [42]26). While
these observations have frequently been made in respect of politicians, they
apply equally to others involved in public life (e.g., Zybertowicz v Poland,
application no. 59138/10 (2017) at [43]).

84. Consistently with the terms of Article 10(2), the high level of protection
afforded to political speech is “subject to the proviso that [journalists] are
acting in good faith in order to provide accurate and reliable information in
accordance with the ethics of journalism” (e.g., Bladet Tromsø and
Stensaas v Norway (2000) 29 EHRR 125 at [65] [AB/1010]).

SECTION 4 OF THE DEFAMATION ACT 2013

85. Section 4(6) of the 2013 Act abolished the common law Reynolds defence.
Whereas the Reynolds defence centred on the responsibility of the publisher’s
conduct, its focus is on the objective reasonableness or otherwise of a
publisher’s belief. However, the Supreme Court has held that the rationale
for the two defences is not materially different and that “the principles which
underpinned the Reynolds defence are … relevant to the interpretation of the
statutory defence” (Serafin v Malkiewicz [2020] UKSC 23; [2020] 1 WLR at
[68] (Lord Wilson, giving the only judgment of the Court) [AB/813]).

26This a different Lingens judgment to that which appears in the Authorities Bundle. A PDF
copy has been filed with these submissions.

39
86. As is apparent from the wording of section 4 (and confirmed in the case law
on this provision), three questions have to be addressed when determining
whether the public interest defence is made out. First, was the statement
complained of, or did it form part of, a statement on a matter of public
interest? The wording “form part of” means that, as with the Reynolds
defence, regard must always be had to the entire statement/publication. In
this case it is common ground that this question should be answered in the
affirmative. Second, if so, did the defendant believe that publishing the
statement complained of was in the public interest? If so, third: was that
belief reasonable?

87. In Economou v De Freitas [2016] EWHC 1853 (QB); [2017] EMLR 4 Warby
J identified the following key principles on the application of section 4 (in so
far as they are relevant):

“(1) It is not enough for the statement complained of to be, or to be

part of, a publication on a matter of public interest. It must also be
shown that the defendant reasonably believed that publication of the
particular statement was in the public interest.

(2) To satisfy this second requirement, which I shall call “the

Reasonable Belief requirement”, the defendant must (a) prove as a
fact that he believed that publishing the statement complained of
was in the public interest, and (b) persuade the court that this was
a reasonable belief.

(3) The reasonable belief must be held at the time of publication.

(4) The “circumstances” to be considered pursuant to s.4(2) are

those that go to whether or not the belief was held, and whether or
not it was reasonable.

(5) The focus must therefore be on things the defendant said or knew
or did, or failed to do, up to the time of publication. Events that
happened later, or which were unknown to the defendant at the time
he played his role in the publication, are unlikely to have any or any
significant bearing on the key questions…” at [139] [AB/537].

88. In same case Warby J summarised the objective test in the following terms:

40
 “I would consider a belief to be reasonable for the purposes
of s.4 only if it is one arrived at after conducting such enquiries and
checks as it is reasonable to expect of the particular defendant in all
the circumstances of the case” (at [241] [AB/562]).27

89. It bears emphasising that, as Warby J said in Yeo v Times Newspapers

[2015] EWHC; [2017] EMLR 1 (with reference to the Reynolds defence), this
defence is intended to set a lower threshold for defendants than the defence
of truth (at [128]) [AB/458]. A key point about the public interest defence is
that it “protects, on public interest grounds, the publication of factual
statements that are not proved to be true” (Yeo at [175] (emphasis added)
[AB/472]). Of critical importance to the public interest defence is the point
that the truth or otherwise of a statement is “irrelevant” and a “neutral
circumstance” (Jameel at [62] (Lord Hoffmann); Flood at [122] (Lord Mance)
[AB/157, 358]). That does not, of course, mean that a defendant can publish
information which they know to be false and pray in aid the public interest
(e.g., Doyle at [79] – [80]). However, it is abundantly clear from the case law
that the public interest defence does protect information which, in the law of
libel is presumed to be false and cannot be justified as true on the single
defamatory meaning as determined by the Court. That is a fundamental
distinction which appears not to be understood by the Claimant in this case.

THE BONNICK PRINCIPLE

90. It has been said that “the public interest defence is not assessed by reference
to a meaning or imputation” (Doyle v Smith at [75] [AB/592-593]). That is
reflected in the statute; the reference to the statement complained of in s
4(1)(b) is to the words complained of by a claimant, rather than the
defamatory imputation which those words convey (Economou v De Freitas
at [153] (Warby J) [AB/541], endorsed by the Court of Appeal in the same
case [92] – [93] [AB/641-642]). That is where the so-called Bonnick Principle
comes in.

27That statement was cited with approval by the Supreme Court in Serafin at [67] [AB/812-
813].

41
91. In Bonnick v Morris [2002] UKPC 31; [2003] 1 AC 300 the Judicial
Committee of the Privy Council considered the application of Reynolds
privilege to a Jamaican newspaper publication in which the defamatory
imputation arose by implication. Lord Nicholls (giving the unanimous
judgment of the Committee) noted that in that appeal there was room for
different views on whether the article contained the implication in question,
and that “[d]ifferent readers may well form different views on the meaning to
be given to the language under consideration” (at [19]-[20]) [AB/128-129].

92. Lord Nicholls posed the question of whether the law should take this into
account when applying the objective standard of responsible journalism,
rather than simply applying the “single meaning” rule that applies in relation
to other defences in libel. He held that it should take it into account; to assess
responsible journalism by reference to a single meaning would “introduce
unnecessary and undesirable legalism and rigidity” and that a “a journalist
should not be penalised for making a wrong decision on a question of meaning
on which different people might reasonably take different views” (at [24]). As
such, where words may “readily convey a different meaning to an ordinary
reader, a court may properly take this into account when considering whether
Reynolds privilege is available as a defence” (at [24]) [AB/129-130]. Warby J
has referred to this as the “bounds of reasonableness” (Yeo at [151]) [AB/465].

93. In Economou v De Freitas Sharp LJ (with whom Ryder and Lewison LJJ
agreed) stated that the Bonnick Principle should “find reflection to the fullest
extent in the interpretation of s.4” (at [93]) [AB/642]. To this end, Sharp LJ
stated (at [95]) that:

“a reasonable belief that it is in the public interest to make

statement 'A' could be the basis for the public interest defence, even
if the words unintentionally conveyed meaning 'B' [but her Ladyship
noted that] “this approach cannot be pressed too far, as the judge
recognised: thus, in assessing whether a defendant's belief is

42
 reasonable, there are limits to the latitude to be allowed for
unintended or ambiguous meanings” [AB/642].

THE IMPORTANCE OF EDITORIAL JUDGMENT

94. Section 4(5) of the 2013 Act requires the court to make such allowance for
editorial judgment as it considers appropriate. The importance of affording
appropriate deference to editorial judgment is long established in the Article
10 and our domestic case law. It has been said that the approach taken to
covering a subject (which encompasses determining what information to
include in a particular article) is a “matter of journalistic freedom” in respect
of which the courts should not substitute their own views for those of the
press (e.g., Couderc at [139]) [AB/1272]. That is especially important where
the subject matter of the journalism is of a heightened public interest. Judges
are not public interest journalists.

95. The Reynolds case law established that editorial judgment is relevant, and
the courts must give weight to it, in relation to both (a) the steps taken by
journalists prior to the publication of the statement, and (b) the content of
the statement (e.g., Flood (SC) at [137] (Lord Mance)) [AB/364]. As Lord
Mance observed, the courts have the last word in setting the boundaries but
“within those boundaries the judgment of responsible journalists and editors
merits respect” (at [137]). In respect of the steps taken by journalists prior to
publication, at first instance in Flood Tugendhat J stated that the question
was whether the actions of the defendant publisher were “[w]ithin the range
of permissible editorial judgments which the court is required to respect”
([2009] EWHC 2375 (QB); [2010] EMLR 8 (HC) at [217]) [AB/236].

96. As to the content of the publication, in Jameel Lord Hoffmann (with whom
Lord Scott and Baroness Hale agreed on this point) made the following
remarks about editorial judgment in the context of determining whether the
inclusion of a statement complained of was justifiable:

43
 “The fact that the material was of public interest does not allow the
newspaper to drag in damaging allegations which serve no public
purpose. They must be part of the story. And the more serious the
allegation, the more important it is that it should make a real
contribution to the public interest element in the article. But
whereas the question of whether the story as a whole was a matter
of public interest must be decided by the judge without regard to
what the editor's view may have been, the question of whether the
defamatory statement should have been included is often a matter
of how the story should have been presented. And on that question,
allowance must be made for editorial judgment. If the article as a
whole is in the public interest, opinions may reasonably differ over
which details are needed to convey the general message. The fact
that the judge, with the advantage of leisure and hindsight, might
have made a different editorial decision should not destroy the
defence. That would make the publication of articles which are, ex
hypothesi, in the public interest, too risky and would discourage
investigative reporting” (at [51]) (emphasis added) [AB/154-155].

97. In the same case Lord Hope made it clear that when considering the
application of the Reynolds defence, one does not assess the public interest
with reference to every piece of information contained in a publication; he
said the following:

“On the contrary, each piece of information will take its colour and
its informative value from the context in which it is placed. A piece
of information that, taken on its own, would be gratuitous can
change its character entirely when its place in the article read as a
whole is evaluated. The standard of responsible journalism respects
the fact that it is the article as a whole that the journalist presents
to the public. Weight will be given to the judgment of the editor in
making the assessment, as it is the article as a whole that provides
the context within which he performs his function as editor”
(Jameel at [108], see also at [111] [AB/167]) (emphasis added).

44
CONTINUING PUBLICATIONS AND CHANGES OF CIRCUMSTANCES
98. Where a defendant relies on the public interest defence in respect of a
continuing/ongoing publication (in addition to the original publication), they
have to establish that the conditions set out in section 4(1) of the 2013 Act
continue to be satisfied: Lachaux at [159] (Nicklin J) [AB/881]. Whether or
not the conditions are met and, thus, the defence made out, may change over
time. This requires consideration of whether there has been “any significant
change in circumstances since the original publication” (Lachaux at [159]
(Nicklin J)). Nicklin J considered that, in this regard, the position remains as
it was in respect of the Reynolds defence.

SUBMISSIONS28

THE PUBLIC INTEREST

99. It is common ground that the statements complained of were statements
and/or formed part of statements on matters of public interest. As such,
section 4(1)(a), the first limb of the three-limbed test for the public interest
defence, is satisfied. The strong public interest in the matters covered by the
statements complained of nevertheless bears emphasising. The nature and
extent of the public interest is relevant to the strength of the Article 10 rights
in play (both in respect of the Defendant’s rights and those of the recipients
of the information), and the limits (if any) which may lawfully be placed on
this expression. That is relevant to the way that public interest defence
should be assessed in this case.

100. In the TED Talk the Defendant addressed, among other subjects, the role
and influence of social media (and by extension social media companies) in
the EU referendum campaign. This was the context in which the Defendant
raised serious concerns (including about unlawful activity) about campaign

28Save where otherwise indicated, these submissions address both the TED Talk and the
Tweet.

45
 funding and spending, and the misuse of personal data. The Defendant spoke
about the uncertainty surrounding the sources of funds expended during the
campaign and the potential role of foreign money. Within this wider context,
the Defendant raised concerns about the conduct of Leave.EU and the
Claimant. That is in circumstances in which the Claimant was the founder,
chair/chief executive, benefactor and a leading public face of that campaign,
and by far the largest donor in the EU referendum campaign. All of this, the
Defendant stated, raises questions of profound importance about the
weaknesses in the rules governing campaign expenditure and the lack of
accountability in respect of social media targeting and advertising.
Ultimately, said the Defendant, these issues threaten the integrity of our
democratic processes.

101. This is par excellence political speech. Adopting Baroness Hale’s formulation
in Campbell, the TED Talk was unquestionably speech which addressed
matters of the greatest possible importance to the organisation of the political
life of the country. Indeed, it is difficult to conceive of matters in which the
public interest in their being published and the subject of debate would be
greater. As such, this is speech which, the Defendant submits, should
properly be regarded as being at the core of the guarantee of freedom of
expression and, thus, attracting the strongest protection.

ISSUE 2: DEFENDANT BELIEVED THAT PUBLISHING THE STATEMENTS

COMPLAINED OF WAS IN THE PUBLIC INTEREST

102. After dedicating more than two years of her professional life to investigating
the issues she addressed in the TED Talk, contributing to the public debate
on these issues, and providing assistance to parliamentary enquiries, the
Defendant strongly believed that it was in the public interest to publish the
TED Talk and to invite readers of the Tweet to view it. Moreover, she believed
that there was a strong public interest in speaking about the Claimant’s
relationship with the Russian state (CC/§209). The same applied to the
Tweet, but the Defendant additionally believed that there a public interest

46
 in exposing and challenging the fact he was seeking to stifle, or chill, her
investigation of him by threatening legal proceedings (CC/§§224-226). In
respect of the TED Talk, the Defendant further believed that her reporting
on these issues, the story of which she recounted in the TED Talk, helped to
shine a light on the workings of social media and politics and had contributed
to investigations being undertaken by a range of bodies (CC/§193).

103. It is obvious from the Defendant’s evidence that she believed that publishing
the TED Talk (and, by extension, the Tweet) was in the public interest. The
Claimant’s apparent attempt to suggest otherwise by seemingly questioning
whether the Defendant was acting in good faith is, with respect, hopeless. It
was notable that during cross examination, it was not explicitly put to the
Defendant that she did not hold the requisite subjective belief when she
originally published the statements; this was only done in relation to the
ongoing publication of the TED Talk – the Defendant’s response was
unequivocal.29 The Claimant’s seeking to cast doubt on this is surprising
given that the Defendant had frequently questioned him about the issues
addressed in the TED Talk and made reference to her belief about the public
interest when addressing front-ups to him (e.g., [Bundle B/848, 851]). There
is no proper basis upon which it could be concluded that the Defendant did
not hold that belief when the statements were originally published, and on
an ongoing basis.

ISSUE 3: DEFENDANT’S BELIEF WAS OBJECTIVELY REASONABLE

104. This issue calls for an objective assessment of the Defendant’s subjective
belief(s) that publishing the statements complained of was and continues to
be in the public interest.

29 Transcript, Day 4, p168, lines 10-15, 19-25.

47
The Defendant’s intended meaning

105. Of considerable importance in this case is the meaning that Defendant

intended the statements complained of to convey. It is by reference to that
(and not the Court’s Meaning) that the reasonableness of her belief falls to
be assessed. The Court will need to determine whether the meaning that the
Defendant intended to convey through her remarks about the Claimant falls
within the “bounds of reasonableness”. These bounds must, it is submitted,
be widely drawn, and considerable latitude granted to the Defendant in this
regard. That is because this assessment must take account of the weight of
the public interest in the political speech with which this case is concerned,
and the concomitant strength of the Defendant’s Article 10 rights.

106. As the Defendant explains in her witness statement, she considered that her
reference in the TED Talk to the Claimant’s “lies” about the Claimant’s
“covert relationship with the Russian government” meant that the Claimant
had lied about his relationship with Russia in that he had hidden it from
public view (CC/§202).30 She also considered that the source of the Claimant’s
funds remained an open and unanswered question, hence the reference to his
having been referred to the NCA (CC/§203). The Defendant confirmed this in
cross examination.31

107. The Defendant did not, however, intend to allege, and does not think that she
did allege, that the Claimant had received/accepted funding from the Russian
government in relation to the Brexit campaign in breach of the rules on
foreign funding (CC/§201). She did not make that allegation and had not done
so in her extensive reporting on the Claimant, because she had no evidence
of his having received funding from the Russian government (CC/§§153, 201,
205, 222).

30 Transcript, Day 4, p118, p119, lines 1-5.

31 Transcript, Day 4, p96, 101, 103.

48
108. Saini J held that the words complained of meant “on more than one occasion
[the Claimant] told untruths about a secret relationship he had with the
Russian Government in relation to acceptance of foreign funding of electoral
campaigns in breach of the law on such funding” (“the Court’s Meaning”).
Like Bonnick and Economou, this is a case in which the defamatory
imputation as determined by the Court arises by implication. Saini J’s ruling
was made in the context of a trial of preliminary issues before a defence had
been filed. For the reasons set out above, the public interest defence is not
addressed by reference to the “single defamatory meaning” which the court
decides the words complained of would have conveyed to a hypothetical
ordinary reasonable reader/viewer/listener and which forms part of the
common law of libel. The Defendant, of course, accepts that the Court’s
Meaning is relevant to the extent that it needs to consider the Bonnick
Principle.

109. At the meaning hearing it was argued on behalf of the Defendant that, for
the purposes of attributing a single meaning to the words complained of, they
meant that “there are reasonable grounds to suspect that C has lied about
having a secret relationship with the Russian government and ... there are
grounds to investigate whether that relationship involved acceptance of
foreign funding in breach of the law on funding referendum campaigns.” The
Claimant’s pleaded meanings, which were maintained before Saini J, stated
that the TED Talk meant that “the Claimant has repeatedly lied about the
nature and/or extent of his relationship with the Russian Government.” In
respect of the Tweet, the Claimant contended for the same meaning, save
that the word “repeatedly” was removed. Following the hearing, but before
Saini J gave his ruling, the Claimant filed a note in which he proposed an
alternative meaning which added: “… in relation to whether that relationship
involved acceptance of Russian funding in breach of the law on funding
referendum campaigns.” Then during cross examination, counsel for the
Claimant suggested another meaning, i.e., that there “were questions to be
asked about whether or not Mr Banks' money had come from America or

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 Russia or possibly somewhere else”.32 As it happened, Saini J found that the
statements bore a natural and ordinary meaning which neither of the parties
contended for.

110. All of this serves to confirm that this is self-evidently a case in which
“different people might reasonably take different views” in respect of the
meaning of the statements complained of. In these circumstances, the
Defendant should not, it is submitted, be penalised for not foreseeing the
Court’s Meaning. Adopting the words of Lord Nicholls in Bonnick (at [27])
[AB/130], this is a case in which “[t]he defamatory meaning of the words (i.e.,
the Court’s Meaning) used was not so glaringly obvious” that any reasonable
publisher would be “bound to realise” that the Court’s Meaning this “was how
the words would be understood by ordinary, reasonable readers”. What the
Defendant intended and thought the statements complained of meant fell
comfortably within the “bounds of reasonableness”.

111. Through his legal representatives, the Claimant appears to suggest that the
earlier drafts of the TED Talk are somehow probative of what the Defendant
intended convey when giving the talk in its, final form, as published. That is
a thoroughly bad point. It ignores the fact that journalistic output evolves
through the drafting and editorial process.

Reasons why the Defendant’s belief was objectively reasonable

112. It was, the Defendant submits, objectively reasonable for her to believe that
it was in the public interest to publish the statements complained of. This is
not a borderline case; there were and are ample grounds for concluding that
her belief was reasonable in all the circumstances of the case, indeed on the
indisputable facts of the case alone.

32 Transcript, Day 4, p96, lines 15-19.

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A. The strength of the public interest

113. For the reasons set out above, the public interest in publishing the
statements in question was extremely strong. The strength of the public
interest in the statement or part thereof is significant relevant circumstance.

B. Information known to the Defendant when the statements were published

114. Through her investigative journalism, the Defendant was aware of the facts
and matters set out at paragraphs 30 to 50 above. By the time the Defendant
gave the TED Talk she knew about three things33 of particular significance:

a) The Claimant’s relationship with the Russian government: The

Claimant, who led and funded a significant campaign in the Referendum,
had had considerable dealings with the Russian government, through its
embassy in London, for a period of more than a year which included the
Referendum campaign. The ambassador and other officials had
befriended the Claimant and his right-hand man, Mr Wigmore, met them
on a number of occasions, invited them to private events, and introduced
him significant investment opportunities.

b) The public debate on the Claimant’s relationship with the Russian

government: There had been and continued to be significant public
debate about the relationship between the Claimant (in his capacity as a
key political figure in the Referendum campaign and a major funder of
the leave campaign) and the Russian government. Questions had been
raised about that relationship in, among other forums, the news media,
by a leading think tank, and in Parliament.

c) The Claimant’s public statements about his relationship with the

Russian government: The Claimant’s public statements (as a high-profile
public figure who could reasonably be expected to be candid in his
account) about that relationship, made in the context of that wider

33 There is no dispute that she had knowledge of these matters.

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 discourse were inconsistent, misleading, and sometimes untruthful. The
Defendant knew that because she obtained the text of emails sent to/by
the Claimant/Mr Wigmore which demonstrated the extent of the
relationship. Crucially, the Defendant knew that in his official public
response to the commencement of a statutory investigation by the EC
into the source of Leave.EU/his funding in the Referendum, the Claimant
had falsely stated that his “sole involvement” with the Russians was one
lunch.

115. The Defendant was aware of a number of additional facts and matters which
are relevant to the assessment of the reasonableness of her belief:
a) The Claimant was the largest donor in the Referendum campaign and
had made the largest donation in British political history. Yet the
Claimant had never provided a straightforward, properly evidenced
public explanation as to the provenance of the funds he put into the
Referendum campaign.

b) Russia was and remains a state whose interests are often in conflict with
those of the UK and a state which had been held to have been responsible
for (attempted) assassination on UK soil. There was public concern and
debate, including in Parliament and in the media, about Russian
government influence and interference in domestic politics and
democratic/electoral processes in the UK (and the failure of the UK
government properly to investigate this) and other Western countries. It
included concerns about Russian government exploitation of social media
to seek to influence voters, and attempts to cultivate relationships with
businesspeople, politicians and political parties (including through the
covert injection of money) for the purposes of advancing Russian
interests. Moreover, there were apparent links between the politicians
(and their associates) alleged to have been targeted by and/or who had
relationships with the Russian government in the UK (concerning
Leave.EU) and the US (concerning the Trump campaign).

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 c) During a period which coincided with the Referendum campaign and its
immediate aftermath, and the Trump presidential campaign, the
Claimant had expressed strong public support for the Russian
government and met senior Russian officials (including a person he
suspected of being an intelligence operative) on multiple occasions. In the
context of that relationship he was offered, and expressed a strong
interest in, business deals/opportunities by individuals closely connected
to the Russian state.

d) UK electoral/referendum law prohibit the acceptance of foreign

donations. At the time that the Defendant gave the TED Talk the
unprecedented (under the legislation) situation had arisen where the
regulator responsible for regulator PPERA and permissible donor rule
was satisfied that there were grounds to refer the Claimant’s donation to
the NCA (for a full investigation) on the basis that they had not been able
to establish who the donor was and that donation was permissible under
the prohibited foreign donations rule. At the time of TED Talk the NCA
had been investigating for a number of months (since November 2018)
and were still investigating.

e) Leave.EU had been found to have broken both electoral and data
protection law in the context of the Referendum campaign.

f) Following the Referendum, and given the increasing importance of social

media for election/referendum campaigning and the problem of
campaigning exploiting social media without accountability, there was
debate (including on the basis of the DCMS Committee’s reports) about
the need to reform the UK’s laws on election spending/funding.

116. In respect of the Tweet, it is also relevant that the Claimant had long been
seeking to suppress the Defendant’s investigative journalism focussing on his
relationship with the Russian government. As set out above, he had
repeatedly abused her personally on Twitter (including misogynistic attacks)
and attacked her journalism.

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C. The Defendant’s journalistic investigation

117. As set out more fully in the background section above, the Defendant
undertook more than two years of detailed investigative journalism covering
the topics addressed in the TED Talk before it was published. Her
investigations drew on a very wide range of diverse sources and expertise. It
is abundantly clear that she examined the issues in considerable depth and
sought to interrogate issues wherever points were unclear. She took all steps
a journalist in her position could reasonably be expected to have taken. In
light of this it was plainly reasonable to publish the statements, having
regard to what the Defendant knew and what she did not know.

118. Attempts made on behalf of the Claimant to cast doubt on the Defendant’s
journalistic efforts betrayed a lack of understanding of journalistic processes.
For example, it appeared to be suggested to the Defendant that she ought to
have kept notes on her thought process in relation to drafting the TED Talk
(and by logical extension any journalistic output), and that she ought to have
created documents concerning the meaning she intended to convey.34 Such
suggestions are nonsensical. That the Defendant may not have taken notes
or recorded some of the (likely) hundreds of discussions she had as part of her
investigation does not render her belief that the publication of the statements
complained of was in the public interest, unreasonable. Nor does the fact that
some of her many articles (if respect of which the Claimant does not sue) may
have contained minor mistakes or omissions.

D. It was reasonable to include reference to the Claimant in the TED Talk

119. The Defendant’s inclusion of the remarks about the Claimant in the TED
Talk was reasonable and falls squarely within the margin of journalistic /
editorial judgment which is referred to in section 4 and emphasised in
Jameel, in particular (the remarks of Lords Hoffmann and Hope, set out at

34 Transcript, Day 4, p82.

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 paragraphs 96 to 97 above are particularly apposite). In her witness
statement the Defendant explains her decision to refer to the Claimant in the
TED Talk (CC/§§197-199, 205-210). The Defendant‘s unchallenged evidence
is that she made the editorial decision to include the Claimant in the talk for
several reasons. He was relevant to the relationship between the Trump and
Leave.EU campaigns, something which the Defendant considered helped to
convey the public interest issues to an international audience in an engaging
way. But, for the reasons set out above, the Claimant also considered that
there were compelling public interest reasons to refer to the Claimant’s
relationship with the Russian government. The statement has to be looked
at as a whole and there is no basis on which it could be said that the
Defendant has “dragg[ed] in damaging allegations which serve no public
purpose”.

E. Extensive engagement with the Claimant: no further front-ups were

reasonably required

120. The Defendant engaged, or attempted to engage with, the Claimant for more
than 18 months on the topics covered in the TED Talk. The Defendant
determined it was not necessary to solicit any further comment for the
Claimant before publishing the TED Talk or Tweet (CC/§§200, 211); it was
reasonable for her to do so, and that decision fell squarely within “the range
of permissible editorial judgments”. The Defendant did not make any fresh
allegations about the Claimant in the statements complained of. She had
repeatedly addressed all these matters in her previous reporting (as set out
above).

121. More importantly, however, the Defendant had already, and repeatedly,
asked the Claimant questions about, and sought comment on, his
relationship with the Russian state including the meetings he had had with
Russian officials. The Claimant did not provide any substantive response to
these front-ups; he had his opportunity and elected not to take it. Instead, he
continued to make abusive remarks about the Defendant and targeted her on

55
 social media. Rather than engaging with the Defendant, the Claimant
publicly responded to allegations made about his relationship with the
Russian government by offering the story to the Sunday Times when he
discovered that the Defendant had obtained the Emails and planned to
publish articles addressing this topic. The interview with him reported in the
Sunday Times articles on 10 June 2018 contained the Claimant’s (then)
preferred account of these matters. When evidence relating to the Emails
became available to the US media the Claimant then gave interviews to the
New York Times, Washington Post and the New Yorker. For all these reasons,
this is a case in which it is highly unlikely any comment, assuming it could
have been obtained, would have been revealing and there was nothing
unreasonable or irresponsible about not soliciting such comment (see by
analogy the remarks of Lord Bingham in Jameel at [35] [AB/150]).

F. It was reasonable not to include comment from the Defendant

122. This is not a case in which it was reasonable to expect that the Defendant
would include anything about the Claimant’s position in relation to the
allegation in the TED Talk. As explained above, the Defendant intended to
allege that the Claimant had lied about a covert relationship with the
Russian state – that was something that did not appear to (and could not
sensibly) be disputed. The format of the publication is also important. It was
not a news report and it was not presented as such; it was, in essence, a
debate-provoking oral comment piece. It is trite that Article 10 protects not
only what is said but the form of the expression, and latitude must be
afforded in respect of that.

123. It would have been wholly artificial and out of place for the Defendant to have
added material about the Claimant’s position in relation to the allegation
that the Defendant was making. Further, this is a case in which Court’s
Meaning is an implied meaning; the connection Saini J drew between the
allegation about the Claimant having lied about a covert relationship with
the Russian government and the acceptance of foreign funding in breach of

56
 electoral law arises only by implication. That being so, the Defendant could
not realistically have included any comment by the Claimant in relation to
this because that was not the allegation being made. As Sharp LJ said in
Economou incorporating a claimant’s “side of the story” may make little
sense where defamatory meanings are implied meanings (at [112]) [AB/649].

G. The Claimant had not previously complained about similar statements

124. By the time the Defendant published the statements complained of, she had
already made the same remarks about, inter alia, the Claimant’s covert
relationship with the Russian state and his lies in relation to contact with
Russian officials on multiple occasions. She knew that he had not taken any
legal action against her or raised an editorial complaint relating to these
particular allegations. In those circumstances it was reasonable for the
Defendant to infer that the Claimant did not take issue with what she had
said, and then repeated, about these subjects. That was a further reason for
which it was entirely reasonable not to seek further comment from the
Claimant before publication of the TED Talk.

ISSUE 4: PUBLIC INTEREST DEFENCE APPLIES TO CONTINUING PUBLICATION OF

THE STATEMENTS COMPLAINED OF

125. The Defendant’s case is that the continuing publication of both statements
complained of continues to satisfy the requirements of the public interest
defence for the reasons set out above.

126. The Claimant’s case in respect of continuing publication and significant

changes of circumstances is not properly pleaded. From the Re-Amended
Reply, it is possible to discern three events, after the publication of the
statements complained of, which are relied on in support of the contention
that the Defendant’s belief that publishing those statements ceased to be
reasonable (the Claimant’s pleading is difficult to follow but the Defendant

57
 understood these points to be pleaded at ReAmReply/§§51, 84(12) and 93,
84(6)(g) and 90(5); 8(6)(f), 84(6)(g), 90(5)).

127. Then in the Claimant’s Skeleton Argument, for the first time, the Claimant
claims to rely on five events after the original publication (C-SA/§110).
a) The NCA’s announcement on 24 September 2019 that it would take no
further action against the Claimant as it had found no evidence of
criminal offences under the Political Parties, Elections and Referendums
Act 2000 or company law [Bundle B/3341].
b) Saini J’s judgment on the single defamatory meaning on 12 December
2019.
c) A joint announcement, on 29 April 2020, of the settlement between the
EC, the Claimant and Elizabeth Bilney relating to a dispute between
them [Supp Bundle/3938]. That announcement reflects the EC’s
acceptance of the NCA’s decision.
d) The Defendant's withdrawal of her defence of truth on 11 November
2020.
e) A letter from the Defendant to the Claimant on 25 March 2021 [Bundle
B/3568] in which she accepted that the meaning determined by the Court
was untrue (ReAmReply/§§8(6)(f), 84(6)(g), 90(5)).

128. The Defendant does not accept that all these matters are properly pleaded
and particularised in the ReAmReply. Without prejudice to that contention,
the Defendant’s headline submission is that, for the reasons developed below,
there have not been any “significant changes of circumstance” and the
reasons for which she reasonably believed that the original publication was
in the public interest remain valid. When approaching this assessment, the
points made above in the relation to the Bonnick Principle and the
Defendant’s intended meaning continue to apply. Events post-dating the
original publication cannot, as a matter of logic, alter what the Defendant
intended to say. That intended meaning remains the reference point when

58
 assessing the reasonableness of the Defendant’s ongoing belief that it is in
the public interest to publish the two statements complained of.

129. In respect of points (a) and (c), the NCA decision did not amount to a
determination that what the Defendant said about the Claimant (or any
other person or entity) in the TED Talk or the Tweet was wrong. As set out
above, the Defendant did not intend and, reasonably, did not consider, that
what she said about the Claimant constituted an allegation that he had a
secret relationship with the Russian government in relation to breaches of
electoral law. There is nothing in the NCA’s statement to suggest that it had
examined the Claimant’s relationship with the Russian government or, more
specifically, the accounts he had provided to the public of the same. As such,
to the extent that the Defendant’s submissions on the Bonnick Principle are
accepted, the NCA decision has no bearing on the reasonableness of the
Defendant’s decision to continue to publish the statements.

130. Points (b), (d) and (e) can be dealt with together. The Saini J determined the
Court’s Meaning. The Defendant pleaded but later withdrew her truth
defence and accepted in a letter that the Court’s Meaning would be untrue.
By necessity, a truth defence must meet the single meaning found by the
Court. As set out above, that is not the case in relation to the public interest
defence; that meaning is not relevant to application of the defence.

131. For the reasons developed above, what the Defendant thought she was saying
about the Claimant falls squarely within the bounds of reasonableness. If
that is accepted in respect of the original publication, the reasonableness of
the Defendant’s belief that publishing the statements complained of is in the
public interest must continue to be assessed with reference to that. The fact
that the Court determined a different meaning which the words complained
of may bear for the hypothetical ordinary reasonable reader/viewer does not
render the Defendant’s belief unreasonable. The Claimant’s submission that
following Saini J’s ruling “D knew that she did not have any basis on which

59
 to make that allegation” misunderstands the public interest defence and the
irrelevance of the single defamatory meaning rule to the same (C-SA/§119).
For the purposes of this defence, the Defendant does not (and did not) need
to have any such basis. The argument that, upon withdrawing her truth
defence, the Defendant “knew that what she had published and continued to
publish was … false” and that she therefore “had no good faith basis on which
to continue to publish” (C-SA/§129, 133) the statements is similarly hopeless.
If that argument were correct, the public interest defence would be
emasculated: it would never be capable of succeeding in any case where there
had been a meaning determination which resulted in a meaning that the
Defendant could not meet with a truth defence. Self-evidently, the
Defendant’s acceptance that she cannot prove the Court’s Meaning to be true
in the context of a context of a libel trial does not amount to an acceptance
that she has said is untrue.

F. ISSUE 5: DAMAGES
132. The following submissions are made without prejudice to the Defendant’s
position that (a) the Claimant has no actionable claim because he has not
satisfied the serious harm test, and (b) even if that test is satisfied, the public
interest defence provides a complete defence to this claim.

133. The relevant law is summarised in Nicklin J’s recent judgment in Lachaux
at [209] [AB/895-897]. The Defendant relies, in particular, on the principles
summarised at paragraphs 61 to 62 above in respect of serious harm; these
apply to the assessment of damages.

134. The following considerations would operate significantly to limit the damages
claim against the Defendant:
a) The Defendant repeats and relies on the submissions made at paragraphs
66 to 69 above, under Issue 1 (serious harm). These points apply here.

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 b) There is no or no cogent evidence of the Defendant having been shunned
or avoided as a result of what amounts to one line in the TED Talk and
the Tweet.

c) On the basis of the evidence before the Court in respect of the Defendant’s
public interest defence, it is submitted that the Claimant had a generally
bad reputation in respect of the sector of his life with which this claim is
concerned, namely his role as a funder/leader of Leave.EU. That is for
the reasons addressed under Issue 1 (see paragraph 67 above).

d) The Claimant has failed to mitigate any damage to his reputation that
may have been caused by the statements complained of. Notably, he has
not taken any steps to publicise the fact of the Defendant’s apology and/or
the letter the Defendant sent to him, in which she explains that she
accepts that the Court’s Meaning is untrue and apologised for repeating
that imputation [Bundle B/3568].35 Additionally, the Claimant’s evidence
was that he did not respond to requests from comment from journalists
following the publication to the TED Talk (AB/§62).36 As such, he declined
the opportunity publicly to respond to anything the Defendant had said
in that talk.

e) This is a paradigm example of a case in which, if the Claimant were to

succeed, a reasoned judgment would provide significant mitigation for
any damage to his reputation. That is because it would make clear in a
public judgment that no truth defence was advanced and that the
Defendant had never intended to allege that he or Leave.EU benefited
financially from the relationship with the Russian government. It would
also be clear from such a judgment that the Defendant had accepted in a
letter to the Claimant of 25 March 2021 that an allegation reflecting the
meaning found by Saini J would be untrue.

35 Transcript, Day 2, p75, lines 5-25; p76.

36 Transcript, Day 2, p63, lines 23-25; p64, lines 1-18.

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 f) An award of damages in respect of the exercise of the freedom of
expression is an interference with Article 10 rights; that is especially so
where the expression in question is political speech (e.g., Roseiro Bento
v Portugal (2010) 51 EHRR 6 at [38] and [40] – [47]). Any award of
damages in this context must “bear a reasonable relationship of
proportionality to the injury to reputation suffered” (e.g., Tolstoy
Miloslavsky v UK [1996] EMLR 152 at [49] and [53]). The chilling effect
of a damages award on public interest journalism relating to political
matters is a factor that should be taken into account (see by analogy Steel
& Morris v UK [2005] EMLR 15 at [95] – [96]). It is submitted that, for
all the reasons set out above, it would not be proportionate to make a
significant damages award in this case.

135. If the Defendant were to succeed with her public interest defence in relation
to the original TED Talk but, for example, the Court found for the Claimant
in respect of the ongoing application of that defence and/or in relation to the
Tweet, any award of damages would, the Defendant submits, necessarily be
vanishingly small. That is because the Court would need to take account of
the fact that the Defendant would have been acting lawfully when giving the
TED Talk. Further, in either of those scenarios the number of publishees
would have been significantly smaller as compared to the original publication
of the TED Talk.

G. CONCLUSION
136. For the reasons set out above, and which will be further addressed by way of
closing oral submissions, the Defendant invites the Court to conclude that:
(a) the Claimant has not satisfied the serious harm test in relation to each
statement complained of; and, if and to the extent that he has, (b) the public
interest defence is made out in relation to the original and continuing
publications of both statements complained of.

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137. The Defendant published statements on matters of utmost public interest
relating to the integrity of democratic processes after conducting such
enquiries and checks as were reasonable in all the circumstances of the case.
To put it another way, given what the Defendant knew (and did not know)
and what she did to guard so far as possible against the publication of untrue
defamatory material, she reasonably considered the publication of the
statements complained of to be in the public interest. There is no overriding
public interest which would justify sanctioning and placing restrictions on
the high value political speech at the heart of this case. The Court is
respectfully invited to dismiss this claim.

GAVIN MILLAR QC
AIDAN WILLS
MATRIX
21 January 2022

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