Blake, Seymour & Thorp v Fox [2021]




Background


The claim was brought by Simon Blake, Colin Seymour and Nicola Thorp who accused Laurence Fox, a former London mayoral candidate, of defaming them after he called them paedophiles on Twitter. The comments followed a tweet from the supermarket Sainsbury’s supporting Black History Month which led to the defendant calling for people to boycott the supermarket. The defendant served a Defence disputing defamatory meaning and serious harm, while also serving a Counterclaim against all three of the claimants in respect of their tweets directed towards the defendant that used the word ‘racist’.


The claimants failed to serve a Reply and Defence to the defendant’s Counterclaim without either agreement from the defendant or an Order of the court. The claimants then applied for a Trial of Preliminary Issues (“TPI”) regarding the issues of meaning, whether the words were defamatory, and whether they were fact or opinion, in respect of all three claims and counterclaims.


The defendant did not consent to the TPI and instead applied for Default Judgment in light of the claimants’ failure to serve a Reply and Defence to Counterclaim. He had also previously indicated in correspondence that he would apply for trial to be by judge sitting with a jury (which CPR r.26.11(2) says should be made at the first case management conference).


Judgment


Senior Master Fontaine summarised both the claimant and the defendant’s submissions in her judgment before concluding that no TPI would be ordered at this time. The granting of an application for a TPI at this stage of proceedings would in practical terms prevent the defendant from succeeding in any application for a jury trial. The Senior Master did recognise that there had not been any successful applications for jury trials in defamation claims for several years, but she considered it unacceptable to pre-judge the outcome of such an application.


Another factor which persuaded the Senior Master to reject the application for a TPI was the fact that it would inhibit the defendant from being able to properly consider such an application with the benefit of knowing the claimants’ defences to the counterclaims.


Senior Master Fontaine instead decided that the claimants would be ordered to file and serve on the defendant a ‘written notice’ setting out their case relating to the counterclaim, reasoning that the costs in preparing such a statement rather than an individual Reply and a Defence to Counterclaim will be much more limited. Once this has been served, the claimants will be able to notify the defendant if they desire to renew their application for a TPI.


If the parties continue to disagree on this point, the application for a TPI would be adjourned and a decision would be taken at a CCMC. However, Senior Master Fontaine stressed that it would be sensible to resolve this dispute by negotiation and settlement prior to this eventuality. She further noted that it would seem inconceivable to most ordinary people that the parties press on and spend hundreds of thousands of pounds on a “pointless” and “unattractive Twitter spat”.


Comment


The judgment will now act as authority for whether a TPI on meaning and other issues is appropriate before close of pleadings and before a defendant has set out the nature of their defence. The decision confirms that in similar circumstances the court’s practice will be to order the claimant to a serve a written notice setting out their counterclaim before any application for a TPI can be considered.


The judgment signals the importance of issues in a libel case being defined before the court makes a verdict as to how issues should be tried. It also demonstrates that an application for a TPI may not be used to dispossess a party of their right to make an application for jury trial, no matter how unlikely success may be for this type of application.

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