Arron Banks And Carole Cadwalladr ' What Does It All Mean?

Published date20 June 2022
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation, Libel & Defamation
Law FirmBindmans LLP
AuthorMs Tamsin Allen

Introduction to the case

Arron Banks is an outspoken Bristol-based businessman who founded Leave.EU. He donated huge sums of around '9 million, towards Brexit campaigns in 2016. Carole Cadwalladr is an award-winning journalist who has spent the last decade writing, mostly for the Observer, about the role of tech companies and big data in democracies, and the risk that they pose. She broke the story of Cambridge Analytica and continued to investigate threats to our electoral systems from dark money and Russia, among other things.

During 2018, Ms Cadwalladr wrote a series of articles about Arron Banks. She was interested in the origins of the money he had donated to leave campaigns and had noted in his book his 'boozy lunch' with the Russian Ambassador. Initially, she wrote a profile, but later that year, she received a cache of his emails. These showed how he and his colleague Andy Wigmore had met Russian officials many times more than he had originally admitted, or than he had claimed to a Parliamentary Committee. They also showed that the Russian officials were suggesting potentially profitable business deals to the pair, and cut-price investments involving gold and diamonds.

These emails were to form the basis of an exposé in the Observer, but before the publication date, The Times scooped the story, with the collaboration of Mr Banks. The Times, the Guardian and others reported how Mr Banks had misled everyone about the number, and nature, of his covert meetings with Russian officials. Throughout the next year, this allegation was made by multiple media outlets. But it wasn't until Ms Cadwalladr gave a TED Talk in April 2019 that Mr Banks decided to sue. The talk was entitled 'Facebook's role in Brexit - and the threat to democracy'. It was about whether or not systems that are supposed to protect democracy are fit for purpose in an era of social media, tech giants and dark money in election systems. She referred, briefly, to Mr Banks by saying 'I won't even go into the lies Mr Banks has told about his covert relationship with the Russians'.

That sentence forms the basis of the libel claim that Mr Banks then issued in July 2019. After initially suing on other statements, Mr Banks dropped those and focussed on the TED talk and a later Tweet in similar terms. Ms Cadwalladr defended her talk on the basis that it was true and that it was in the public interest - defences now given statutory life as s.2 and s.4 of the Defamation Act 2013. At a meaning hearing with judgment handed down in 2020, Mr Justice Saini determined the single meaning of the words, after which Ms Cadwalladr dropped the truth defence, recognising that the meaning found by Mr Justice Saini was not one she meant to convey and not one she believed to be true, or could prove to be true. Battle lines drawn, the trial took place in January 2022.

The judgment in this extremely controversial case was handed down on 13 June 2022. The headline news is that Ms Cadwalladr won, Mr Banks lost. In our binary adversarial system, that is what matters. It means that Mr Banks will have to pay all the costs - his own and Ms Cadwalladr's - which will run into millions. History will recall that she was the victor, that the public interest overcame self-interest.

However, there are some important nuances to consider.

The judgment - an overview

The judge (Mrs Justice Steyn) had to decide a number of questions. Firstly, whether the publications caused serious harm to Mr Banks's reputation - the statutory threshold for bringing a libel claim. If so, she had to decide whether Ms Cadwalladr was able to establish her public interest defence - was the publication lawful, even if it had caused serious harm? That defence requires the court to decide if the publication was generally in the public interest, if so, whether the Defendant believed it was in the public interest to publish, and if they did, whether that belief was objectively reasonable. In the circumstances of this case, it meant an analysis of everything Ms Cadwalladr did and thought before publication in order to decide if it was reasonable for her to believe that the allegation she made was true, and if there was sufficient evidence to make the claim at the time.

Mr Banks sued on two different publications. He was able to establish that the first one, a sentence in a TED Talk, 'And I am not even going to get into the lies that Arron Banks has told about his covert relationship with the Russian Government' caused serious harm to his reputation, and so got over the statutory threshold. But the second one, a later Tweet published in response to the letter of claim, did not reach the threshold and was dismissed at the start.

Having established that, the onus shifted to Ms Cadwalladr to establish that it was in the public interest for her to make the allegation that she did, that it was reasonable for her to believe that she should have...

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