Defamation in the case of unidentified claimants

In January 2024, Andrew Bridgen MP brought a defamation claim against Matthew Hancock MP (the former Health Secretary) over a Tweet which allegedly labelled him as antisemitic.

Last week, on 20 March 2024, Mrs Justice Steyn had to address an application by Mr Hancock to strike out parts of Mr Bridgen’s Particulars of Claim on the grounds that it did not articulate a proper case on ‘reference’.

An essential ingredient in an action for defamation is that the words complained of must actually refer to the claimant. Sometimes, this is straightforward particularly when the claimant has been expressly named or identified in the statement. However, quite often a statement may only refer to the claimant by the use of initials or a nickname; and in some instances, the claimant may not be mentioned at all – as was the position in the Bridgen v Hancock case.

Background

On 11 January 2024, Mr Bridgen published a Tweet which provided a link to an article by Dr Guetzkow and stated, “As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust”. The article published by Dr Guetzkow concerned data about deaths and other adverse reactions to COVID vaccines.

Mr Bridgen’s Tweet led to the Conservative Party withdrawing the party whip from him, pending an investigation. The Conservative Party Chief Whip, Simon Hart MP, commented that the Tweet had “crossed the line” and caused “great offence to the process”.

Later that day, during Prime Minister’s Questions in the House of Commons, Mr Hancock asked whether “the Prime Minister agrees that the disgusting antisemitic, anti-vax conspiracy theories promulgated online this morning are not only deeply offensive but anti-scientific and have no place in this House or in our wider society?” In response, the Prime Minister condemned the comments that had been made, although neither of them expressly mentioned Mr Bridgen by name.

Mr Hancock then published a Tweet, on the same day, stating: “The disgusting and dangerous antisemitic, anti-vax, antiscientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society”. The Tweet also linked the video showing Mr Hancock’s question raised (and the response) during Prime Minister’s Questions, earlier that day.

The reference issue arose in this case because Mr Hancock’s Tweet did not name or otherwise directly identify Mr Bridgen. However, the fact that there is no direct naming or identification of a claimant in a statement complained of is not a bar to a defamation claim. In such a case, the issue turns on whether the hypothetical ordinary reasonable reader would be able to identify them in some other way.

Analysis

As noted in the judgment of Mrs Justice Steyn (see paragraphs 27-35), a claimant may be proved to be the person identified or referred to in a statement in one of two ways.

The first is ‘ordinary reference’. This is where ‘the claimant is named or identified in the statement or (as was contended by Mr Bridgen) where the words used are such as would reasonably lead persons acquainted with the claimant to believe that he was the person referred to’. This is often referred to as “intrinsic reference” although such terminology can be somewhat unhelpful and confusing because (when addressing the knowledge to be attributed to the hypothetical acquaintance) the Court imputes some degree of knowledge about the claimant which is likely to include some facts which are extrinsic to the statement.

The second way is ‘reference innuendo’, which is where ‘a claimant is identified or referred to by particular facts known to individuals’. Here, the claimant is required to identify one or more individuals who read the statement complained of and who knew specific facts from which reasonable people would reasonably understand the statement to refer to the claimant.

Mr Bridgen’s claim relied on the contention that the readers of Mr Hancock’s Tweet had knowledge of specific events that took place earlier that day as well as around a month earlier where he raised questions in Parliament about the purported harms of Covid-19 vaccine. In other words, reliance was placed on factual matters extrinsic to the statement. Whilst Mr Bridgen asserted that this was a case of ordinary reference, Mrs Justice Steyn took the view that this was in fact a reference innuendo case.

Comment by Mrs Justice Steyn

Mrs Justice Steyn made plain that where a claimant seeks to assert that readers with knowledge of specific facts would have read the statement as referring to them, they must give sufficient particulars of those facts and identify the readers who linked the statement to them by reason of their knowledge of the specific facts (see paragraphs 37-39 of the judgment). It followed that Mr Bridgen was required to plead sufficient particulars for a reference innuendo case but he had failed to do so. In her decision, Mrs Justice Steyn considered that Mr Bridgen’s Particulars of Claim were therefore defective. However, she considered that the pleading was capable of being cured and Mr Bridgen was given an opportunity to amend it.

This case once again serves to highlight the complexities surrounding circumstances where a claimant has not been expressly and unambiguously named in a statement. Publications that fall in such categories require a very careful analysis at the outset.

The case continues.

For more information

For more information contact Jay Joshi at Taylor Hampton Solicitors. [email protected].  You can also review our Defamation Practice HERE.