Lawfare latest: Banks vs Cadwalladr
A victory for public interest journalism, or a travesty of the law? We pick through the surprise judgment handed down in Brexit “bad boy” Aaron Banks’s libel case against investigative journalist Carole Cadwalladr in the company of top media lawyer, Mark Stephens.
Presented by Jonathan Ford and Neil Collins.
With Mark Stephens.
Produced and edited by Nick Hilton for Podot.
Neil Collins, Mark Stephens, Jonathan Ford
Jonathan Ford 00:06 Hello, and welcome to a long time in finance with Jonathan Ford and Neil Collins, in partnership with briefcase dot news, the service that brings intelligent curation and analysis to your media monitoring. We’re here today to pick up a discussion about the law and lawfare. Now friends of the show will remember a few weeks ago we had a discussion about a number of lawfare cases involving Russians suing people. What do you call them, Neil? You call them slappers?
Neil Collins 00:39 Yeah, well, they’re called slaps. So they’re called slappers seems to me a very suitable way to describe these wretched people. Yeah. They’re not interested in any sort of judgement.
They’re just wanting to slap you hard enough so you shut up.
Jonathan Ford 00:53 Yeah, exactly. Well, so a very interesting judgement this week, which has certainly set the dinner party tables abuzz, involves the case of Aaron banks, the Brexit Dark Lord, I suppose one way of putting it — he put a lot of money into the Brexit campaign, ran the thing called leave EU, which was the slightly less respectable party, official, I think, is the right phrase.
Neil Collins 01:19 I think you could say it was the militant wing of the campaign to get us out of the European Union.
Jonathan Ford 01:25 Anyway, and he was fighting a libel case with a journalist called Carole
Cadwalladr, basically, over things she had said about him colluding with Russians in relation to
Brexit. And basically, even though Carole Cadwalladr, wasn’t able to demonstrate anything that
she had said, well, that the specific allegations to do with Russia had substance, the judge basically
said, doesn’t matter. It’s not libel which of course is really interesting. And so we thought we’d
get back, Mark Stephens, from Howard Kennedy, very distinguished libel solicitor to basically
pick over the bones of this judgement. And what does it actually mean for the whole situation
about lawfare in this country now? Are we moving away from a world in which slaps can
be administered to poor old hacks like us on a regular basis? So welcome, Mark.
Mark Stephens 02:15 lovely to be here.
Jonathan Ford 02:17 It’s a very hot day, so.
Neil Collins 02:18 So after that, what is your first take on this judgement?
Mark Stephens 02:25 I think one of the key things here is that slaps are strategic lawsuits against public participation. And essentially, often the plaintiff doesn’t expect to win but expects to visit intimidation, massive cost, and also suck bandwidth out of the individual’s ability to carry on normal life in this case the writer. And the idea is essentially to punish and to gather data. But winning is almost secondary. In this particular case, Aaron Banks said that he wanted vindication, which is
what the English libel system is designed to give.
The problem with this is that these slap cases or lawfare as they’ve also been known, the takeaway from this case is that the judge didn’t think this was a slap. Mrs. Justice Karen Stain, a very smart judge, didn’t think that it was right to do that. And my big takeaway is, judges haven’t quite understood what slap is yet. They haven’t understood the multifaceted ways in which people, particularly the rich and powerful seek to censor. Now in this particular case, because the allegations that Aaron Banks had lied about a secret relationship with the Russian government and that he had funnelled funds to the militant Brexit campaign was untrue, completely false. But that was the allegation that Carole Cadwalladr made, and he wanted vindication. But he also I think it’s fair to say or observe that he appears to want retribution against Carole Cadwalladr. I mean, it will be a very normal human reaction, but he does seem to want to discourage her from covering him. And of course, she was not protected by a newspaper because he sued her on her own.
Jonathan Ford 04:27 Can I just jump in just for the for the listeners, I wanted to actually just go to the details of the case. And there’s two specific things which were effectively being disputed. One was a TED talk, which he gave some time, I think, in 2018, in which she said, and I’m going to not try and do Carole Cadwalladr on this occasion, she said, “and I’m not even going to get into the lies that
Aaron Banks has told about his covert relationship with the Russian government”. So that was the first and then the second was on Twitter, where she responded, I think to a kind of baiting tweet from Banks saying he was unhappy about her TED Talk by posting a link to the TED Talk and saying, “oh, Aaron, this is too tragic. Nigel Farage, his secret funder, Aaron Banks has sent me a pre-action letter this morning. He’s suing me over this TED talk. If you haven’t watched it, please do. I say he lied about his contact with the Russian government. Because he did.”
Those were the things that she said. And he contested. Now one of the things which struck me about
it was initially she said she was going to defend those in court on the basis that they were true. And then she withdrew that and said, actually, they’re not true. Or I can’t prove they’re true, and amended her defence to being one of saying it’s a public interest. I mean, can you explain to us what was the reason that the judge, as far as I can understand, there was no suggestion at the end of the case that these allegations that she’d made were true or substantial. So what was the public interest issue which made the judge they doesn’t really matter? In the end, what the truth was, in this case?
Mark Stephens 06:16 The issue was that there was a public interest in debating whether or not a major funder of the Brexit campaign had actually got links to Russia. And potentially there had been rumours swirling around, that money may have been funnelled from the Russian state or major Russian
actors through intermediaries somewhere on some without their knowledge to the Brexit campaign. And of course, the foreign funding of a Brexit campaign, even covertly would be a major issue of huge public importance. And so that was what she was seeking to address. There had been suspicions about this, and she thought it ought to be investigated. And she made these allegations. Now, at the time, it was perhaps something legitimate to say, this needs to be investigated, we need to be sure that the Brexit campaign did not receive funding directly or indirectly, from people who were doing it on behalf of Russian interest. That was a major, major point. And when she gave her TED Talk, that was essentially what she was saying, but then in response to the baiting tweet, she doubles down on it, and it goes from the grounds to suspect or we should investigate to a much higher meaning because she says it’s true. The problem with it once you say it’s true, is that you then have to prove it, the burden of proof is on the speaker on the writer on the journalist,
Neil Collins 07:49 But the odd thing is, and your summary is excellent, is that I would have expected the judgement to go completely the other way. So why do you think the judge ruled the way that she did?
Mark Stephens 08:03 The judge ruled in the way she did for two reasons. So in relation to the TED talk, she says this was a matter of legitimate public interest. And it was something that should have been debated and should have been discussed. We in this country give a degree of latitude to people who asked for things like that to be discussed and investigated. On the other hand, later on when
she knew that this was an untruth, and she repeated it. Normally, you would expect the court
to say that’s defamatory and you’ve got to pay for it. But we have an odd little quirk in our law, which is that you have to show as a person who’s been defamed that you have suffered severe damage to reputation. Now that can be a number of people who are very influential learning about it, but a few in number or it could be a mass media kind of publication and the jumps that in relation to that second one. Although it was defamatory and untrue, insufficient people had essentially seen it, and the substantial harm threshold hadn’t been surmounted. And therefore, Carole Cadwalladr won in the sense that the libel claim was thrown out. But the libel claim was interestingly and I think for the first time that I’m aware of, it was thrown out with a vindication. So Aaron Banks walks away with a judge saying and judgement that it is untrue that he funnelled Russian money to the Brexit campaign, and it’s cost him quite a lot to get that vindication because he lost the substance of the case. He’ll be paying most of Carole Cadwalladr as legal costs.
Neil Collins 09:54 So how much comfort can the people who are pursuing the oligarchs draw from this judgement, how much does it help people like Tom Burgis, who we had on this programme?
Mark Stephens 10:06 I think it helps a bit. There is clearly a distaste for these kinds of claims, but it also acts as a salutary warning, be very careful. If you can’t prove something you shouldn’t be saying it. But there is obviously a very practical difficulty. For years now, there’s been a lot of corruption in
Russia. And as we know, corruption is very, very difficult to report on and also to prove. So the standard that’s required in court with direct firsthand evidence, because they’re often no firsthand evidence, and it’s even more difficult in a closed state. And it’s even more difficult when they’re abroad. And you can’t subpoena documents. I myself practiced there for many years in the late 80s. And I did a series of libel cases, both here and there.
And in one of them, I actually managed to get the proof of the wrongdoing, the corruption, because the person on the other side had apparently corrupted a senior KGB officer. And I managed to get in touch with his younger junior officer, who was really frustrated that his boss was blocking this because he had taken a bribe, and that the targets of the investigation had been insufficiently careful to make sure that all the people on the team received their own fair share. So he delivered all the documents over to me, which I was then able to introduce the counterpoint to that was that the man took a contract out on me and sent assassins here, and I had to have security service personnel around. But this is really only to demonstrate that we’re only a smidgen away from serious physical harm, and intimidation. And that is really what these suits are about. It’s about chilling down the ability of people to speak about these things, which they cannot prove, but they suspect.
Jonathan Ford 12:05 One of the things which struck me about it. We talked before about slaps on another episode. One of the points that you and David Hooper, who was on that episode also made was this feeling that in certain cases, judges should basically dismiss some of these cases. Now, in
this particular case, one of the things which the judge did, which I thought was quite interesting, but probably isn’t, was she said, “Well, look, Aaron Banks, you know, you say, you’ve been defamed, and it’s terribly damaging to you. But you can’t produce any evidence of anything bad that has happened at all.” Now, it strikes me that that is very relevant in the slap cases, because you know, Roman Abramovich brings these cases or whatever it might be. And yet they’re just suing over some old kind of nonsense, which everyone has been talking about for years.
Neil Collins 12:55 Well, they have the ability to throw it out, haven’t they? I don’t know. But they use it. So very seldom used, because the judge will say, Oh, well, it’ll all come out at the trial, which of course is just what the oligarchs want to hear.
Jonathan Ford 13:10 make do you make of it Mark?
Mark Stephens 13:11 I think there’s a couple of things going on here. I think the British judiciary have started to wake up to intimidatory losses. And frankly, you know, libel has always been a rich person sport, in the sense that you have to have millions to be able to throw at these kinds of cases, and either to bring the case or to defend it. And if you are impecunious, then it’s only someone like Helen
Steele and Dave Morris, the McLibel couple who defended themselves in court, and were basically earning support from the government that were able to defend themselves. But the point about this is that the judges are only beginning to start to grapple with the problems of people bringing lawsuits for the purpose of intimidation, you know, this was a case which had obviously had some merit. All the cases that are slaps, have some merit. And this is what Justice Karen Steyn missed. It is that you can only bring a case if you’ve got a case or an arguable case that you can bring. But the purpose in bringing it is collateral. It’s not just about the vindication, which is what libel should be about. It’s also to exact other behaviours and responses on the people who you are bringing it against. And that’s why I think it was fairly described by many people as a slap case, because the purpose of it was, you know, on the one hand, Aaron banks will say it was to give me a vindication, but on the other hand, it was hugely expensive for Carole Cadwalladr, she wouldn’t have been able to do it without crowdfunding.
Neil Collins 14:53 It was intimidation. I mean, I don’t think there’s any question of it and I think if the courts are starting to see that is a weapon in the armoury of these people, then that is surely a
step forward. But is there any other evidence that they are doing so other than this case?
Mark Stephens 15:11 I think it’s an issue which certainly within the media bar and the media lawyers in London, we are talking about and the judiciary a part of that conversation. But we have a law, the libel law, you know, was designed when it was first brought into place to be an alternative dispute
resolution for young men who were duelling over, suppose slights and blots on their family or
sculpture. And, you know, they were not intended for ordinary people, they were between two wealthy individuals. And the idea was to stop them killing each other or one of them. And so the purpose now is that libel cases are always expensive, the cheapest, you’ll get away with is £500,000 on one side, but most of them are in the one, two, and the Johnny Depp type cases go to £4-5mn to take them. So they are hugely expensive, and they are not within reach of ordinary people.
Jonathan Ford 16:12 But they’re presumably the answer isn’t to bring back dueling?
Neil Collins 16:15 I think there’s a lot to be said for it, especially if the oligarchs.
Jonathan Ford 16:20 That will be a novel twist. But what should the judge have done? You thought the judge hadn’t kind of entirely twigged what was going on? What do you think she should have done in this case? Do you think she should have acted differently?
Mark Stephens 16:37 Yeah, I think Justice required to understand and to make an investigation of the motives of the person bringing it, I don’t think you can just say, the person says that they want vindication the law gives them that right, and therefore they’re entitled to do it. I think you have to look at the wider issues that are in play. And it’s always been that rich and powerful people have used and abused the libel law in order to silence their critics. And in many ways, the purpose in doing it can be seen by the effect of doing it. And that I think, is the crucial part to judge. So in this case, just because there was a legitimate case for Aaron Banks to argue, it doesn’t, I think follow that it is therefore not
a slap. And this is part of the nuance and the education of the British judiciary, which will have
to happen. And this will evolve over a number of years and cases.
Jonathan Ford 17:32 But what should they do with a slap? Should they just throw it out? Is that really the ultimate thing where you judge should say, here’s a set of principles. If I tick all the boxes, it’s a slap, and therefore, I’m sorry, people, you can’t bring this case before because it’s just designed to gag people. Is that really where you think it should go?
Mark Stephens 17:53 Look, there is a place for it. But I think what you do is that you have to look at the impact. So if you take these kinds of cases, this case would have never got to the court door in the United States of America, because of the First Amendment to the Bill of Rights. The reality is, it had
a significant impact on their lives. And it hasn’t had really, as we saw from the court case, and the judge found any impact discernibly on Aaron Banks, but it does seem to have had a disproportionate impact on Carole Cadwalladr.
Neil Collins 18:28 Yeah, well, she could easily have bankrupted her she has paid even if all her costs are covered, which probably won’t be. She has paid dearly for this, even though she won, assuming that Banks goes through with his appeal, do you think he would win the appeal or when will win the
Mark Stephens 18:46 I think that under the current law, it’s possible that he will win it, because the judge took a fairly robust view on lack of damage. And I think there is the possibility that the Court of Appeal could take a different view, reasonable people can differ on this. But this is the opportunity for the Court of Appeal, setting a precedent to restate how the law should be looked at when we brought in this substantial harm case. It was the lawyer who brought it forward and essentially, a Saudi billionaire sued over seven internet hits on an article which defamed him. And then, in that case, the House of Lords said actually that hasn’t caused any substantial harm to his reputation, because most of the people who hit on it were his lawyers and people who knew him and the reputation. Yeah, that was quite a robust judgement. But lots of lawyers have sought to roll that back and erode that rather robust statement of law, because obviously it suits libel lawyers to earn significant coin from their rich clients.
Jonathan Ford 19:58 Yeah, can I just ask, speaking as somebody who occasionally partakes of Twitter, because as far as I could make out what the judge said, she said, Well, Twitter’s a bit of an echo chamber. Carole Cadwallader was just tweeting to her followers, supposedly she’s got quite a few. She’s got a 770,000. Now, I think she had slightly fewer in those earlier times. So it’s an echo chamber, everyone who would have seen the tweet basically hated Banks anyway, so it doesn’t really make any difference. It strikes me though, that that rather conflicts with the case I remember from a few years ago involving the wife of John Bercow, Sally Bercow, who was sued by Lord McAlpine for I think even just retweeting some thing, but that seemed to reach a different conclusion, which was basically actually, I don’t think she had half as many followers as Carole Cadwalladr. And basically, it was deemed to be a publication then and harmful. So where does the law now stand?
Mark Stephens 20:56 Well, it’s in a bit of a mess. So the case that you’ve just talked about where Sally Bercow said: “Why is Lord McAlpine trending innocent face”, she was obviously trying to draw attention to people and signpost, something which was defamatory. The question is whether that did Lord McAlpine some major harm. In this case, the judge has taken a much more robust view of substantial harm. I think she’s rightly said, you know, on social media, it is something of an echo chamber. But also, you get almost the pure theory of democracy in the sense that you hear all shades and colours of opinion. So you make a statement, then it’s likely to be rebutted. And so being an
antidote is going in pretty much in equal measure. I think many of these things are sort of over garden fence gossipy type of tweets.
Neil Collins 21:50 Well, that sounds very encouraging. So it’s a small step in the right direction. But if she loses on appeal, she is on the hook again for the costs.
Mark Stephens 21:59 She is and again, she will be bankrupted. And she will have no alternative but to take this up to the Supreme Court. The law needs a bit of dealing with how do we actually look at substantial harm. What is it that we are trying to protect, existentially about a reputation and what is it that really causes harm to a person in the modern day?
Jonathan Ford 22:23 So Neil, are you planning to go and accuse someone in your column for colluding with the Chinese or the Russians?
Neil Collins 22:31 Almost certainly and I can think of no better way of generating favours amongst my fellow hacks, but unlike Carole, I will not be prepared to risk bankruptcy for doing so until this is resolved. I think I will stick to my pusillanimous approach for which I’m so well known for.
Jonathan Ford 22:54 So here from coward central.
Neil Collins: That was a longtime finance with Jonathan Ford, and colleagues, editing and production was by Nick Hilton. And our sponsorship partner is briefcase dot news. Join us again next week.