Ordinary reference and reference innuendo

Judgment has been handed down in the strike-out application brought by Matt Hancock MP in respect of a defamation claim brought against him by Andrew Bridgen MP.

Parties

Andrew Bridgen has been MP for North West Leicestershire since May 2010. He was a Conservative MP until January 2023. Matt Hancock has been MP for West Suffolk since May 2010. He was a Conservative MP until November 2022 and served as secretary of state for health and social care from July 2018 to June 2021 during the Covid-19 pandemic.

Underlying claim

On 9 January 2023 a lecturer at a university in Jerusalem published online an article concerning data about deaths and other adverse reactions to Covid vaccines. On 11 January 2023 at 8.42am, Bridgen published a tweet which provided a link to the article and stated: ‘As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust’ (the Bridgen tweet).

As a result of the Bridgen tweet, the Conservative party withdrew the whip from Bridgen that same day and issued a press release to that effect at 11.16am. During prime minister’s questions in the Commons at 12.32pm on 11 January 2023, Hancock asked a question and received a response from Boris Johnson, as follows:

Mr Hancock: ‘Does the prime minister agree 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?’

Prime minister: ‘I join my right honourable friend in completely condemning, in the strongest possible terms, the types of comments we saw this morning. Obviously, it is utterly unacceptable to make such linkages and to use such language, and I am determined that the scourge of antisemitism be eradicated. It has absolutely no place in our society. I know the previous few years have been challenging for the Jewish community, and I never want them to experience anything like that again.’

At 1.03pm, Hancock tweeted: ‘The disgusting and dangerous anti-semitic, anti-vax, anti-scientific conspiracy theories spouted by a sitting MP this morning are unacceptable and have absolutely no place in our society’ (the Hancock tweet). The Hancock tweet also linked to a video of Hancock asking his question at prime minister’s questions and Johnson’s response.

The Hancock tweet and parliamentary question did not name or otherwise identify Bridgen.

Bridgen brought a defamation claim against Hancock with respect to the Hancock tweet.

The current application

On 7 December 2023 Hancock filed an application for a preliminary issues trial, together with an application to strike out the claim on the grounds that Bridgen had not pleaded a viable case on reference under CPR 3.4(2). While the judge directed a hearing of the strike-out application, he declined to order the preliminary issues trial until the strike-out application had been determined, noting that: ‘If the defendant is successful with that application, subject to any appeal, that will be the end of the claim. Also, there are issues as to reference which mean that any decision as to what, if any preliminary issues should be tried, needs careful thought. So, the court will proceed in stages.’

CPR 3.4(2) allows the court to strike out a statement of case in whole or in part, but it will not be granted unless the court is certain that the claim is bound to fail. Where a statement of case is found to be defective, the court will consider whether the defect can be cured by an amendment.

The case on reference

In defamation claims, it is crucial that the words complained of should be published ‘of and concerning’ a claimant. Essentially, a claimant needs to prove that the words complained of would have been understood to refer to him.

A claimant may be proved to be the person identified or referred to in a statement in two main ways:

i)    Ordinary reference where the words used are such as would reasonably lead people acquainted with a claimant to believe that he was the person referred to (the ‘acquainted with’ test). The court will usually impute to the hypothetical reader some degree of knowledge about the claimant which need not be found within the words complained of.

ii)    Reference innuendo where a claimant is identified or referred to by particular facts known to individuals. A claimant must usually identify one or more individuals who read the statement complained of and who knew special facts from which reasonable people would reasonably understand the statement to refer to the claimant.

Where it is not clear that the words complained of refer to a claimant, the claimant should plead connecting facts which establish the link between himself and the words used, and should plead his case as to the existence of any people who linked him with the words complained of by reason of their knowledge of the connecting facts.  

The judge confirmed that ‘if the claimant contends that readers with knowledge of specific facts would have read the publication as referring to him, he must give sufficient particulars of the facts on which he relies, and make plain his case as to the existence of persons who by reason of their knowledge of those facts linked the words complained of to him.’

Hancock’s case

Hancock argued that Bridgen’s submission that his was an ordinary reference case was hopeless and claimed that Bridgen had failed to plead a case of reference innuendo effectively. While Hancock acknowledged Bridgen might be able to articulate a viable case on reference, he had not yet done so, despite being invited to do so before the hearing.

Hancock argued that the attributes ascribed to a hypothetical reasonable reader who is acquainted with Bridgen lie at the general end of the spectrum – for example Bridgen’s name and the fact he is an MP. They would not be specific facts about what had occurred in Bridgen’s life in the days preceding the Bridgen tweet.

Hancock argued that there are 650 MPs and no reasonable reader, upon reading the Hancock tweet, would have assumed, without knowledge of other facts, that it referred to Bridgen. The fact that the whip had between withdrawn from Bridgen did not alter matters; this happened less than two hours before the Hancock tweet and those acquainted with Bridgen would not be following his life hour by hour.

Bridgen’s case

Bridgen strongly resisted the contention that this was a reference innuendo case, but argued that, if it were, his current pleading would suffice.

Instead, Bridgen relied on the ‘acquainted with’ test for ordinary reference. His primary case was that those acquainted with him would have been aware of the loss of the whip – it was a significant public event in UK politics leading to ‘furore on twitter’. In such circumstances where the public knew the whip had been withdrawn for alleged vaccine misinformation, the hypothetical person acquainted with Bridgen would have known the Hancock tweet was referring to the Bridgen tweet. Bridgen was an MP with a public commitment to raising questions about purported Covid-19 harms which would have been known to the hypothetical acquaintance.

Decision

The judge ruled that Bridgen’s contention that this was an ordinary reference rather than a reference innuendo case was misconceived. The case on reference was dependent on readers of the Hancock tweet having had knowledge of other facts, mostly concerning what occurred in the period of less than two hours between the publication of the parties’ respective tweets on 11 January 2023, but also extending to knowledge that Bridgen had, about a month earlier, raised questions in parliament about purported Covid-19 vaccine harms.

Hancock was ‘obviously right’ that if Bridgen wanted to rely, for the purposes of establishing reference, on specific events that occurred in his life over a matter of hours before the publication complained of, that would make it a reference innuendo case and Bridgen should comply with the pleading requirements for such a case.

The judge struck out five paragraphs of Bridgen’s particulars of claim and agreed that the current reference pleading was defective. However, the judge refused to grant the strike-out application of Bridgen’s particulars of claim in its entirety, saying that it was ‘not only capable of being cured, it is highly likely that [Bridgen] would have little difficulty establishing reference innuendo’. In such circumstances, the judge ruled that Bridgen should be given an opportunity to amend his claim to remedy the deficiencies given that the reference pleading was ‘an error of analysis which does not warrant striking out the claim’.

Comment

The judgment provides useful commentary on the importance of correctly pleading reference at the outset of a claim and is helpful for practitioners in its examination of the application of ordinary reference and reference innuendo. The judgment also highlights the fact that when faced with a defective pleading, a strike-out is never guaranteed. It will only be granted if the claim is bound to fail and the court should first consider whether the defect can be cured by an amendment and if so, offer the party concerned an opportunity to remedy it.

 

Elizabeth Wiggin is a senior associate at Wiggin, London