If long litigation experience tells you one thing, it’s that “winning” and “losing” are relative concepts.
As newspapers reported, “Brexit bad boy”, Arron Banks has lost his case against investigative journalist Carole Cadwalladr.
It is hard not to feel great relief for Ms Cadwalladr at her vindication and victory and to feel that a blow has been struck for the public’s right to know and supporters of a free press.
But a reading of the judgment certainly shows that it was a close-run thing, and that Mrs Justice Steyn’s detailed examination of the evidence, meticulous evaluation of the witnesses and careful balancing of relevant factors might well have yielded a different result.
Banks has said he will appeal, and various lawyers have pointed out that there may well be grounds for doing so. The judge was careful to point out that the case was legitimately brought and was not fairly or aptly to be described as a strategic lawsuit against public participation (a SLAPP).
Banks has used the cushion of vast wealth to pass vaguely humorous comment and it is doubtful that Ms Cadwalladr will be unaffected by the years of financial and professional stress the case entailed.
The case was not a simple finding that statements were not libellous because they were correct.
What Ms Cadwalladr actually alleged in the broadcast under consideration and the follow up tweet could not be shown to be true and did not bear the meaning she thought it had.
She could not prove that Banks had lied about accepting foreign funding of the Brexit campaign. But she had intended to convey that Banks had lied about a secret relationship with the Russian government and that there were grounds to investigate whether the source of his donations was illegal foreign funding.
The judge found that the relevant talk passed the threshold in the Defamation Act 2013 of having caused “serious harm to Banks’ reputation but the follow-up tweet did not.
The real issue was whether Ms Cadwalladr believed that publication was in the public interest and whether that belief was reasonable. It was; but that conclusion was only reached following the detailed analysis of a huge amount of material. There were subsidiary issues about whether a subsequent change of circumstances affecting the reasonableness of the relevant belief might change things but in the end the judge held that this change did not mean that the serious harm test was now passed.
So this was probably the right result but was certainly not an easy victory, in any sense of the term.
And no-one should take away any sort of message that tweets are incapable of causing “serious harm”.
Mr Banks’ overall reputation does not emerge unscathed. Ms Cadwalladr will be scarred by the experience. She is understood to have been funded in part by well-wishers but certainly not all those costs will be recoverable.
I simply make the point that there is a time and place for litigation. There is even a time and place for defamation litigation.
But as wiser persons than me have commented, litigation is generally to be avoided. And the role of the experienced litigation lawyer is generally to try to get that satisfactorily achieved.
And so we await judgment, and lessons in the rather more lightweight saga of Vardy v Rooney.
