Katie Hopkins has been ordered to pay £24,000 in damages and £107,000 on account of Jack Monroe’s legal costs following a libel case relating to comments published on twitter.
The case concerned online comments made by journalist, Laurie Penny that she did not have a problem with the vandalising of a Memorial to the Women of WWII in Whitehall which occurred when an anti-austerity demonstration in London turned violent.
On 18 May 2015, Hopkins mixed up Penny with blogger, Jack Monroe when she tweeted: “@MsJackMonroe scrawled on any memorials recently? Vandalised the memory of those who fought for your freedom. Grandma got any more medals?” The tweet was deleted around 2 hours and 25 minutes later. However, Hopkins then went on to post a second tweet later that evening to ask “Can someone explain to me – in 10 words or less – the difference between irritant @PennyRed and social anthrax @Jack Monroe”.
In the court decision handed down on 10 March 2017, the judge found that both tweets were defamatory of Monroe and caused serious harm to her reputation. The judge held that Monroe was entitled to fair and reasonable compensation and ordered Hopkins to pay damages of £16,000 for the first tweet and £8,000 for the first tweet.
Hopkins, like many others, appears to believe that there is an unfettered freedom of speech across interactive social media platforms, such as twitter. She describes herself in the case as “confrontational, outspoken, forthright, often outrageous and frequently flippant in her journalism and social media activity, and very known as such”, perhaps to make the point that people are accustomed to her journalistic style and that her social media postings would not in fact have caused any real harm to Monroe’s reputation.
In its decision, the court recognised the conversational nature of twitter as a social media platform. However, it also recognised that the publication of a tweet has a far greater reach than a private conversation between two people, and that a tweet may be no less transient than a print newspaper article and no less powerful than a live television broadcast. In this case, the court accepted that Hopkins’ tweets were likely to have been seen by at least 20,000 internet users, before even taking into account the reposting of the tweets by other twitter users and media outlets.
In all the circumstances, the court was satisfied that the tweets had caused Monroe real and substantial distress and had caused sufficient harm to her reputation to satisfy the statutory threshold for serious harm.
This is the first time that the court has been asked to consider the “serious harm” test under the Defamation Act 2013 in the context of twitter postings. The decision provides an important and timely reminder of the court’s willingness to treat defamatory postings across social media as seriously as publications in more traditional print mediums. As this case shows, tweeting (or even retweeting) a defamatory statement can have very serious and costly consequences, both for the publisher and for the target of the tweet.

The Court of Appeal has ruled that an employer can be held vicariously liable for the criminal data misuse of individual employees. This decision highlights the broad, sweeping nature of vicarious liability and increases the need for employers to insure against large legal claims.

What is vicarious liability?

Vicarious liability holds employers legally accountable for the wrongdoing of employees during the course of an individual’s employment. It is a form of strict liability, meaning the employer need not be at fault for liability to be established. More recently, the courts have adopted a broad, sweeping test, where any action that is ‘sufficiently connected’ to the ‘field of activities’ of an individual’s employment can render the employer liable.

Morrisons Supermarkets v Various Claimants

This case concerned a begrudged senior IT internal auditor employed by Morrisons who, after being disciplined at work, decided to take home the data of 100,000 employees and place them online. His employment meant he was entrusted with this data, and his misuse of it landed him with 8 years’ imprisonment for breaching the Data Protection Act 1998 (the Act). Over 5,000 of those affected brought a claim against Morrisons alleging that Morrisons was vicariously liable for the actions of its employee.

The High Court ruled that Morrisons had no primary liability to the affected employees and that it had discharged all duties it owed to its employees under the Act. However, the Court of Appeal held that Morrisons’ lack of primary liability for the harm caused did not prevent the data subjects from being entitled to pursue a separate vicarious liability claim.

It was held that despite the employee’s acts of data misuse having been carried out in his home, on his personal laptop and for his own criminal motives, the act was sufficiently connected to the field of activities of his employment. Accordingly, all of those affected by his criminal activity could claim for damages against Morrisons.

The effect of the ruling

This ruling may have serious detrimental effects on innocent employers, for whom the need to have relationships of trust with employees is essential. Morrisons have indicated a desire to appeal the decision to the Supreme Court. For now, however, the possibility of substantial claims against employers for the abuse of such trust is unsettling. With the scope of vicarious liability becoming so extensive, businesses ought to remain mindful of the risks of such claims and consider appropriate insurance packages to protect them from becoming the subject of vicarious liability claims.

The Independent Press Standards Organisation’s (IPSO’s) compulsory arbitration scheme has now launched, meaning that anyone who has a claim against a participating newspaper can arbitrate their claim at a maximum service fee of £100 (not taking into account any legal fees).

The compulsory scheme extends the voluntary scheme which still remains in place. It means that a potential claimant who would otherwise bring court proceedings in a media law dispute can now require arbitration of their claim and participating newspapers cannot refuse. The type of claims envisaged by the scheme include claims for defamation, malicious falsehood, breach of confidence and misuse of private information, harassment and breach of data protection laws.

The arbitration process means that an expert media law barrister will act as an independent and impartial arbitrator who will review the evidence and make a ruling on the claim.  The new scheme allows an arbitrator to make an award of compensation of up to £60,000, which is an increase on the £50,000 cap for IPSO’s voluntary scheme. The scheme also enables an arbitrator to make a ruling that one party should pay another’s legal costs, capped at £10,000 for represented parties or £1,000 for litigants in person, albeit the arbitrator has discretion to make no order as to costs where that is fair and reasonable.

The objective of the scheme is to enable a quick, cost-effective, fair and impartial procedure for resolving genuine media law disputes. The scheme rules direct the arbitrator to act inquisitorially and with regard to the proactive case management of claims, including by providing a flexible process tailored to each individual claim. The rules also enable an arbitrator to strike out vexatious or frivolous schemes which reflects the court’s approach to establishing that serious harm has occurred in defamation claims following the case of Jameel v Dow Jones 2005 and the introduction of the Defamation Act 2013.

It is anticipated that some claims may be unsuitable for the scheme, for example if they give rise to a novel or complex point of law or it is in the public interest to have a determination by the court. The arbitrator has the discretion to direct such claims be resolved through alternative routes.

The IPSO has appointed an arbitration company to provide the scheme’s services and to monitor and report on its effectiveness. It will be interesting to see the extent to which claimants use the new compulsory scheme and how decisions flowing from the scheme develop and interact with the court’s attitude to media law disputes. For now, it seems that claimants who previously were dissuaded by the costly and time consuming court proceedings may have a more streamlined and cost-effective route to justice against newspapers.

The full list of newspapers covered be the compulsory scheme is: Daily Telegraph, Sunday Telegraph, Weekly Telegraph, Daily Mail, Mail on Sunday, Metro, Times, Sunday Times, The Sun, The Sun on Sunday, Daily Express, Sunday Express, Daily Star, Daily Mirror, Sunday Mirror, and Sunday People.

The Press Association, Conde Nast and a number of magazines such as Vogue, GQ and Tatler remain members of the voluntary scheme.

The case of Bruzas v Saxton [2018] EWHC 1619 (Fam) raises the question of whether privilege can be asserted in deliberately disclosed material which potentially reveals acts of wrongdoing. In this article we consider the unusual facts of the case and whether it may redefine the boundaries of professional privilege.

What are the practical implications of the case?

One of the most important stages in any litigation will be the disclosure of relevant documents. It allows the parties to assess the merits of a dispute and for the courts to determine its outcome with all cards firmly on the table.

A party is, however, entitled to claim privilege and withhold inspection of relevant documents if those documents are created during the course of seeking legal advice or in contemplation of litigation. Over the years the courts have determined the boundaries in which privilege exists. The authorities give guidance on what should be done about privileged documents which are inadvertently disclosed or those which further a fraudulent or criminal design.

The case of Bruzas v Saxton is, however, unique. It raises the novel question of whether privilege can be asserted in deliberately disclosed privileged material which potentially reveals acts of wrongdoing. The case invites the court to reconsider the parameters for privilege and the circumstances in which this fundamental right may be lost.

What was the background to the proceedings?

The parties to the proceedings were formerly married but divorced in 2013. In March 2014, the husband and wife agreed terms for a consent order which included financial remedies such as provision for certain capital redistribution and payments from the husband to the wife. The wife subsequently became dissatisfied with the terms of the consent order and applied to set it aside. Parker J dismissed that application at a hearing in December 2017.

Following the wife’s unsuccessful application, sometime in January 2018 Parker J received through the post documents which contained an account of alleged communications between the husband (as client) and his solicitor and counsel during 2017. The material was delivered to Parker J by a paralegal employed by the firm of solicitors who had represented the husband.

Following deliberation of the documents, Parker J then supplied copies to the parties and a hearing was listed on 28 February 2018 to consider what should happen to the documents.

Prior to this hearing, the wife filed and served an unissued application notice to dismiss the December 2017 order by which her application to set aside the consent order was dismissed. The wife’s application relied on alleged acts of perjury committed by the husband and his legal team, it being understood that this application was triggered by the documents she had received from the court.

Parker J subsequently recused herself from further involvement in the case on the grounds that she had seen the documents which, by submission of the husband, were protected by legal professional privilege. Parker J made an order for the allocation of a further hearing to another judge to determine the future conduct of the matter. This was to include determination as to the admissibility of the documents delivered by the paralegal.

What issues were considered by the court and what did it decide?

In judgment handed down on 21 June 2018, Mr Justice Holman recognised that this case gave rise to a novel set of circumstances. The judge felt unable to substantively resolve the issues of admissibility at this hearing for a number of reasons including that he did not have the official transcripts from the earlier hearings; the documents in question were likely to require review in order to determine admissibility; and that the wife had not formally issued her application such that there was no live application before him.

The judge accordingly limited himself to giving directions as to the future conduct of the matter and made a rare direction for the matter to be listed before the President of the Family Division. The judge considered that the facts and circumstances of the case required consideration at that high level.

In his judgment, the judge makes a number of interesting observations regarding the case and the matters which will require determination by the President in due course. The judge observed that the facts of this case give rise to a novel and very serious point on what he described as ‘one of the most cardinal areas of our law’, namely legal professional privilege.

The judge recognised that the law surrounding legal professional privilege was of a complex and ever evolving nature and that the case would require an intense consideration of the relevant authorities.

The current legal position is fairly established in circumstances where there has been an inadvertent or accidental supply to another party of privileged documents. However, this case raises the unique question as to admissibility in circumstances where there has not been a mistaken disclosure but a deliberate and considered disclosure by a member of one party’s legal team to the court, and then subsequently by the court to the opposing side.

What is the general approach to professional privilege where privileged documents are disclosed, accidentally or otherwise, to a judge?

Legal professional privilege subsists in communications between a lawyer and a client which come into existence in the course of giving or receiving legal advice.

Privilege entitles a party to withhold evidence from a third party or to the court. Once privilege is established, then a fundamental and absolute right to withhold the evidence arises. The rule is of central importance to the operation of our legal system. The right to assert legal professional privilege is generally regarded as a fundamental human right which allows clients to communicate openly and freely with their legal advisers.

It is, however, generally accepted that privilege cannot be claimed unless the evidence in question is confidential. Where there has been disclosure of privileged documents to an opponent, the starting point is that those documents are no longer confidential between them and privilege cannot be claimed.  This is subject to CPR 31.20 which provides that where a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it only with the permission of the court. The court has the jurisdiction to grant injunctive relief to prevent use of privileged material which has been disclosed as a result of an obvious mistake.

In the case of Dupont Nutrition Biosciences ApS v Novozymes A/S [2013] EWHC 155 the court held that privilege had been waived in a memorandum which had been disclosed to the opponent to the litigation. This was notwithstanding the disclaimer that the relevant employee was on holiday and therefore mistakes may have happened during the assessment of privilege. The court did not consider this to be an obvious mistake which justified reinstating privilege.

In the present case, it cannot be said that there is any obvious mistake. To the contrary, there has apparently been a deliberate and considered disclosure of privileged material firstly by the paralegal to the court and secondly by the court to the wife. Furthermore, as in the Dupont case, the wife relied upon and used the documents in question such that it may be difficult to now reinstate privilege. Arguably, the privilege in those documents has been waived and confidence in them lost by virtue of these disclosures.

One further consideration for the President will be the apparent allegation that the disclosed documents reveal acts of wrongdoing. The law recognises an exception to the protection afforded for privileged documents known as ‘the fraud exception’. This rule establishes that communications between a lawyer and a client will not attract privilege if the purpose of the client in seeking advice is to facilitate crime or fraud.

As recognised by the judge in this case, any determination on the admissibility of the documents will require their review. If those documents do reveal a prima facie case of fraud, it is likely that the husband will not be able to assert privilege in respect of them.

What is your view on the assertion that the case involved a ‘whistle blower’? What are the potential implications of that?

Holman J recognised that on the one hand, if an employee of a firm of solicitors is able to disclose privileged information this could potentially undermine the fundamental doctrine of legal professional privilege. On the other hand, ‘fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place’.

The facts of this case are unusual. If it is determined that privilege in the documents has been waived because of their deliberate disclosure and/or because the documents reveal fraudulent acts, this does further define the boundaries for privilege but arguably does not threaten the fundamental right of privilege more generally.

This article was originally published on LexisPSL (www.lexisnexis.com/uk/lexispsl – subscription required).