McG Productions Ltd 22 St John Street Newport Pagnell, MK16 8HJ Tel: +44(0)7788961886 email: firstname.lastname@example.org
OPEN LETTER TO MARK LANCASTER MP
Mark Lancester MP
House of Commons
4 March 2013
Dear Mark Lancaster MP,
Re: DEFAMATION CLAIM: McGrath & Anor V Dawkins & Ors. Case no. HQ11D01227, QUEEN’S BENCH DIVISION.
Today, at the Supreme Court of the United Kingdom, the court Registrar confirmed that an Order of the Appeal Court refusing appeal rights at the Supreme Court means that I and my company cannot seek permission to appeal in the above case and that the case must be taken to Europe if we wish to progress with it. I have exhausted our U.K. options in trying to bring a defamation case to trial by jury, which is in fact a statutory right.
You may already be familiar with the case and I don’t propose to go into detail. However, what I allege is nothing less than a sophisticated attempt by the judiciary to bypass Parliament and ignore the law, creating in my case an intolerable (and unlawful) costs burden of £75,000 without the benefit of a trial.
It will surprise many, I know, to learn that the law does not in fact allow for a strike-out on a time and costs basis. One judge alone created this precedent in common law that had no statutory basis whatsoever and had profound implications for many down the years. It is certainly the kind of detail on which a Supreme Court ruling would have been welcome. But it would appear that the lower courts can decide when and when not to allow the Supreme Court to adjudicate on their legal errors.
This cannot be right. In an age when corruption is rife in the public sphere as so many cases are revealing, it is now more than ever incumbent on the judiciary to demonstrate the greatest transparency. My very clear, well-argued legal position has not once been addressed in writing. It would appear that I have stumbled upon an embarrassing reality that the courts have attempted, with the collusion of solicitors and barristers it would seem, to bury.
The lower courts refused to address it and they have refused access to the Supreme Court, which could provide essential judicial oversight. I discover from the Registrar of the Supreme Court that a decision from the Appeal Court to prevent Supreme Court scrutiny in denial of appeal rights means that the matter has been placed ‘outside the jurisdiction of the Supreme Court’. The highest court in the land has been denied ‘jurisdiction’ from a lower court in the land! This is, plainly, a preposterous situation in our Parliamentary democracy. No lower court should have the power to stop a higher court from scrutinising its decisions and I must ask that the matter be taken up in Parliament.
To help with a fuller understanding of the legal issues involved, I attach the full appeal prepared for the Supreme Court. But the key details are as follows:
Defendants relied on Civil Procedure Rule (CPR) 3.42 (a/b/c), CPR 24 and the court’s inherent jurisdiction; Jameel abuse was central, with the Kaschke case also relied upon, which itself relied upon Jameel. They are essentially, “the game is not worth the candle” cases on issues of time and costs when compared with likely outcome. But in CPR 3 it states: “Claims which appear to fall within rule 3.4(2)”; and in CPR 24 it states: “Scope of this Part: 24.1: This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.” Ours is a libel claim and so is not a case over which 3a has any power and is not a ‘claim or particular issue’ for which, as part 24 requires, statutory provision for trial is not relevant.
These strike-out provisions cover all civil cases except those for which there is statutory provision for a trial, as per Part 26 of the CPR: “Trial with a jury 26.11 (Section 69 of the Supreme Court Act 1981 and section 66 of the County Courts Act 1984 specify when a claim may be tried with a jury)”. It is section 69 of the Supreme Court Act alone under which a libel case must be heard; namely, trial by jury (with exclusions irrelevant in our case regarding documents or accounts or any local investigation).
As for CPR 3.3 (Court’s power to make order of its own initiative), it states, “Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative”. Part 26, leading to the 1981 Act (enactment) and overriding CPRs 3.42(a/b/c) and 24 (rules), is the exception.
Moreover, the Civil Procedure Act 1997 makes no mention of strike out powers. And according to S.11 of the Act, “Sections 1 to 10 are to come into force by statutory instrument.” Using the Interpretation Act 1978, “3, Judicial notice: Every Act is a public Act to be judicially noticed as such, unless the contrary is expressly provided by the Act”: expressly provided by the Act is that Civil Procedure Rules come into effect by Statutory Instrument, not Royal Assent, and are therefore subordinate law and open to challenge.
Further, using the Interpretation Act 1978: "14, Implied power to amend: Where an Act confers power to make— (a) rules, regulations or byelaws; or (b) Orders in Council, orders or other subordinate legislation to be made by statutory instrument, it implies, unless the contrary intention appears, a power, exercisable in the same manner and subject to the same conditions or limitations, to revoke, amend or re-enact any instrument made under the power". As Civil Procedure rules give powers to courts (through the Civil Procedure Rule Committee), courts have the power to strike-down Statutory Instruments (secondary legislation) where they conflict with Acts of Parliament in force at Royal Assent--the truly binding law of the land.
Strike out powers, then, based on time and costs are unlawful, since no statutory provision at Royal Assent exists to underpin them, nor is any mention made of strike out powers in the Civil Procedure Act 1997. The argument “the game is not worth the candle”, used to justify strike-outs, is one created by a single judge, against the express wishes of Parliamentary statute with Royal Assent (and, of course, against European Convention rights).
Judges have gone further with strike-outs based on time and costs than provisions allow for in any Act of Parliament at Royal Assent, undermining Parliamentary Sovereignty. And, of course, we shall be arguing among other things that UK Courts have failed too in their Convention obligations in striking out a right to a fair trial in libel based on time and costs since Article 6 makes no mention of these.
What provision exists at S.8 of the Defamation Act 1996 (not invoked in the strike-out application but alluded to in Jameel on “prospect of success”) is limited to the provision, “no prospect of success”, which is predicated on “no reason” why it should be tried, which itself is predicated on “the extent to which there is a conflict of evidence”, “the seriousness of the alleged wrong”, and “whether it is justifiable in the circumstances to proceed to a full trial”. These are all points we argued cogently to justify a full trial in our case but our points were roundly ignored, with Equality of Arms issues also being ignored along with multiple fact and law errors in the judgement.
We are now in the invidious position of having to go to Europe to hold our own government to account and this is something that can only needlessly make Britain look ridiculous, as our case is so self-evidently clear in law. The Courts have in fact breached Articles 6, 8 and 10! It is therefore a matter of some deep embarrassment to us to find that our own courts have stopped us going to the highest court in the land on such an important issue of public interest, in a case with such far reaching public consequences; and they leave us no choice but to go to Europe.
I ask that you take up the matter in Parliament as a matter of urgency, as my MP. The issue of an unelective dictatorship in the courts has already been raised by the Home Secretary and, as an ordinary father of two children, a husband and businessman trying to build a business while battling this injustice, I am very much constrained in building that business and better providing for my family while this goes on.
I look forward to hearing from you.
Mr. Christopher McGrath
& McG Productions Ltd
COURT OF APPEAL REF: A2/2012/1010: Between: 1. CHRISTOPHER ANTHONY MCGRATH, 2. MCG PRODUCTIONS LIMITED (Claimants); - and -1. CLINTON RICHARD DAWKINS (COMMONLY KNOWN AS PROFESSOR RICHARD DAWKINS) 2. THE RICHARD DAWKINS FOUNDATION FOR REASON AND SCIENCE 3. AMAZON EU SARL (trading as Amazon.co.uk) 4. VAUGHAN JOHN JONES (Defendants).
SKELETON ARGUMENT IN SUPPORT OF GROUNDS FOR APPEAL
1. I am Mr. Christopher Anthony McGrath, Managing Director of McG Productions Ltd, the First and Second Claimants respectively in this claim. I act as litigant in person for myself and for the Second Claimant in my capacity as Managing Director. The third defendant relied on CPR 3.42(a/b/c) & the court’s inherent jurisdiction; the first and second defendants relied on CPR 24; and the fourth defendant submitted a holding defence pending the outcome of the strike-out applications. Jameel abuse was central. We believe the strike out is unlawful and there are many additional grounds regardless for which no strike out was justified.
2. In CPR 3 it states: “Claims which appear to fall within rule 3.4(2)”; and in CPR 24: “Scope of this Part: 24.1: This Part sets out a procedure by which the court may decide a claim or a particular issue without a trial.” This is a libel claim and so is not a case over which 3a has any power and is not a ‘claim or particular issue’ for which, as part 24 requires, statutory provision for trial is not relevant These strike-out provisions cover all civil cases except those for which there is statutory provision for a trial, as per Part 26 of the CPR: “Trial with a jury 26.11 (Section 69 of the Supreme Court Act 19811 and section 66 of the County Courts Act 19842 specify when a claim may be tried with a jury)” It is section 69 of the Supreme Court Act alone under which a libel case must be heard; namely, trial by jury (with exclusions irrelevant in this case regarding documents or accounts or any local investigation).
3. In Frankie Boyle v MGN Ltd, a case that recognises that satirist’s right to a fair trial which he won for being called ‘racist’, Mr Justice Tugendhat distilled the principle, stating in response to Frankie Boyle’s request to have his case heard without a trial by jury: “a judge would have greater difficulty than a jury, in that he or she would bring to the case the experience and knowledge of the world of only one person, instead of twelve persons.” In a claim for libel, jury trial is non-negotiable -- This strike-out is therefore two-tier justice.
4. The third defendant’s application also relies on “inherent jurisdiction” of the court, but it does not supercede the CPR provisions cited above, or the 1981 Act. In CPR 3.3 (Court’s power to make order of its own initiative), it states, “Except where a rule or some other enactment provides otherwise, the court may exercise its powers on an application or of its own initiative”. Part 26, leading to the 1981 Act (enactment) and overriding CPRs 3.42(a/b/c) and 24 (rules), is the exception.
5. The strike-outs in the claimants’ case relied on two Practice Directions in the Civil Procedure Rules based on The Civil Procedure Act 1997. These too came into effect by Statutory Instrument, not Royal Assent, and are therefore also open to challenge. In short (and we reserve the right to expand on this on appeal as the court has indicated we can do if we may proceed), the Interpretation Act 1978 and its “Implied power to amend” gives the courts power to strike down Statutory Instruments. They are therefore subordinate law to Royal Assent law. Courts do not have the power to strike down Acts of Parliament. Therefore, Acts in force at Royal Assent supercede the authority of the courts and Statutory Instruments, as Parliamentary Sovereignty dictates.
6. Given the supremacy of the 1981 Act, ‘damage’ or ‘costs’ are not mentioned there and so are unlawfully invoked; nor are they mentioned in Section 8 of the 1996 Act; and if the 1996 Defamation Act is invoked with its summary disposal rule to be determined without a trial, it states that the realistic prospect of success must be tied to a dismissal of all reasons why it should be tried (“there is no reason for it to be tried”, with emphasis on the unequivocal word ‘no’). Since one and more reasons were indeed found to be triable issues, including not only several lines of defamatory attack, each eminently capable of bearing defamatory meaning, but also issues of liability, the Act does not provide for a consideration of the prospect of success; only when all reasons may be dismissed as to the prospects for success can the judge lawfully invoke the 1996 Act, if we are to ignore the previous considerations of the Supreme Court Act 1981 and the 1996 Act’s lack of Royal Assent at section 8. In fact, if section 8 of the 1996 Defamation Act is relied upon at all, it should be to the benefit of the Claimants, and we do so rely on it, as there are further provisions in section 8 that prevent a strike out, providing a Statutory Instrument counter to the Jameel strike out provisions, since in assisting us to trial there is no conflict with the 1981 Act. Those provisions are: “(4)In considering whether a claim should be tried the court shall have regard to— (c)the extent to which there is a conflict of evidence; . (d)the seriousness of the alleged wrong (as regards the content of the statement and the extent of publication); and .(e)whether it is justifiable in the circumstances to proceed to a full trial.” Let’s look at them in turn:
7. Conflict of evidence: 1) Extent of publication: Defendants claim a few, we claim thousands as per Alexa.com research presented to the court; 2) the crucial link that existed (as per the point between the two Dawkins’ websites that was denied to exist by Defendant’s 1 and 2 in open court and yet was repeatedly confirmed to exist by the Claimants in legal submissions, later acknowledged and confirmed by the judge, casting doubt on their own statements of truth, which would militate against them in a jury trial; 3) whether Richard Dawkins himself approved the Dawkins attack on the Claimants; 4) the extent to which Richard Dawkins’ involvement in the website establishes his liability; 5) the extent of input and editorial control by Amazon and whether they really can take refuge in the intermediaries defence; 6) the character of the Fourth defendant and that of the First Defendant in relation to malice; 7) the fact that the judge states “it would not be appropriate at this stage of the proceedings for the Court to assume that C’s own intellectual position is necessarily the same in all respects as the book’s”, thereby opening up the question of separation of ‘Scrooby’, the participant in the thread, and Chris McGrath and McG Productions Ltd that came under attack: each Scrooby post was preceded by, "The following post is made by the author, Scrooby, with the permission of McG Productions Ltd", so that Chris McGrath may be regarded as distinct from Scrooby in the threads. 8) Pleas of justification (from Defendant Four in his Defence and from the judge for all defendants) invoke intent as an issue of fact: Mr Justice Tugendhat stated in McKewon v Attheraces Ltd as follows: “Intention is a state of mind, as is motive. But the law treats intention as a matter of fact.. for the purposes of pleas of justification in libel.” This means defendants ‘intentions’ are facts, and those facts, those intentions are disputed in defendants’ replies and witness statements and the claimants’ response, much of which was side-lined unjustly by the judge. All the various conflicts of evidence here and elsewhere in this application confirm there are indeed conflicts of evidence – numerous conflicts of evidence.
7.1. The seriousness of the alleged wrong:
Just to take from the judgement those lines of attack deemed capable of bearing defamatory meaning at trial:
“paragraphs c;“d; e (ii);,f.;i;l (these false and ridiculous allegations are found in the judgement and are not repeated here, though they were of course necessarily repeated at the hearing. The seriousness is self-evident from the subsequent High Court injunction granted – High Courts are not in the business of issuing injunctions against trivia!)
7.2. Justifiable in the circumstances to proceed to full trial:
Justifiable is again not legislated for in law and we are again left with a single judge’s interpretation of that meaning which cannot provide for consistent law. But we remind the court of the “ultimate balancing test” as referred to by Lord Steyn In Re S (A Child)  1 AC 593 (at para 17) and guidance from Lord Bingham in R v Shayler  1 AC 247 (at para 26) that interference of the European Convention on Human Rights must not be stricter than necessary to achieve the state’s legitimate aim, and the legitimate aim of the state in a libel case is to provide a trial by a jury of one’s peers to vindicate character and reputation where possible. The judgement here has been too strict in denying that right and there are too many statutory counters that outweigh the very narrow appeal to Jameel. Strictness is at least a legal grey area that should be clarified on appeal.
8. Abuse of process – libel is currently actionable without proof of actual damage. The potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake was created in case law, not in Parliament-enshrined statute, nor in Civil Procedure Rules for defamation cases. The meaning of ‘so little at stake’ is not legislated for in Parliament. Nor is there a legal test of the common law use (In Jameel) of ‘substantial’ in relation to the perceived wrong; nor is there a test of ‘real’, or ‘real prospect’ or “success”, since winning with minimal damage may well be of ‘real value’ to many and “substantial” (see McKeown v Attheraces Ltd (Feb 2011). The phrase realistic prospect of success, or the word realistic, is not adequately defined in law and settles on the subjective findings of one judge, providing no uniform, consistent and objective test across all cases, which uniformity and consistency of decision-making is the essence of a sound judiciary, necessitating a safeguard provision for appeal. But in this case, the judge decided that at least six separate lines of defamatory attack would be capable of bearing defamatory meaning that pass the threshold of seriousness, one of which he would ‘unhesitatingly reject’ as anything but defamatory, so we can be sure that there is a real wrong; which leaves ‘substantial’.
9. But at paragraph 87 of the judgement in our case, it states as follows:“Jameel v. Dow Jones  QB 946, CA. If it can be shown that there has been no real and substantial tort in this jurisdiction and/or that the Claimant has no prospect of obtaining any damages or other valuable relief proportionate to the resources likely to be expended on the trial”. This is a fundamental basis on which this claim is being proposed for strike-out as an abuse of process. But we respectfully submit that this is not Jameel; it is in fact to mischaracterise Jameel. Here is the relevant portion of paragraph 71: “Mr Price submitted that to dismiss this claim as an abuse of process would infringe Article 6 of the Convention. We do not consider that this Article requires the provision of a fair and public hearing in relation to an alleged infringement of rights when the alleged infringement is shown not to be real or substantial.”
Dismissing a claim for abuse of process does not infringe Article 6 [the right to a fair trial] where the alleged infringement of rights is shown not to be real “or” substantial; it doesn’t say ‘and’, it says ‘or; and we believe Jameel has been misinterpreted as a result, for which no strike-out is justified. That paragraph in Jameel deals with this essential trial question in isolation from all other considerations. The other considerations of cost and time are predicated on there being no real “or” substantial tort. Lose on paragraph 71, and Jameel is lost on the question of abuse of process, we contend (even without the statutory and civil procedure points made). We have a ‘real’ tort in this case, and so ‘substantial’ tort need not be considered on the question of a trial, and this eliminates all the Judge’s considerations on the gravity or otherwise of the torts – they are real, therefore they are triable, regardless of cost/benefit analysis: this is the essence of Jameel. Neill LJ in Gillick v. BBC  EMLR 267 at 272-3 need not come into it.
10. The judge invokes the right of reply justification to assist the strike-out, stating at pragraph 94:“Claimants participated fully in the debate on that thread and had full opportunity (which they frequently took) to answer the criticisms…participation by C will not only have a substantial effect on any jury's assessment of the actual defamatory meaning of the words complained of…but it will certainly operate as a very substantial mitigation.” Firstly, we’re not suing for criticisms, so a right to reply to criticisms was not relevant; we’re suing for libel, and secondly the serious, often criminal allegations are not adequately dealt with by a right to reply, but by full vindication in a court of law in a trial by a jury of one’s peers. This is a wholly disproportionate and unmeritorious plank of the judge’s argument.
11. In the draft judgement in January 2011, the judge stated:”3. “Mr.McGrath) has not yet clearly defined where he stands on such scientific issues as cosmology and evolution, as to which sincere Christians are known to hold a wide variety of views.” This was an error of fact, and a worrying one that we raised and which was corrected in the final draft, but it revealed something important about the case regarding Equality of Arms – neither party in either civil or criminal trials should be procedurally disadvantaged. In my “Response by Claimants (1) and (2) to Part 18 Request served by Defendant (4) on 21.7.11” I set out clearly the following position: “Answer to Request 3): “On the question of the account of creation in Genesis, the First Claimant has absolutely no certain idea of its truth or otherwise as a matter of fact – and it was that absolute certainty on both sides of the faith equation that, among other things, he sought to parody. Nor does the First Claimant deny evolutionary biology: it is an absolute fact, an indisputable fact, so transparently obvious as to be beyond any measure of reasonable question.” It would appear that this submission was not included in the bundle submitted by counsel for the Defendants, or else the honourable Judge would surely have known this was the first Claimant’s view. Given that the Claimants allege that Mr. Jones is a proven liar on the LinkedIn question and that Defendants were willing to use him in support of their own applications, there is no way for the Claimants to be sure that the bundle they presented to the court had not been selective, yet time and again the people who controlled the documents (had ‘access’ to the courts) provided to the judge were the very Defendants accused of, and apparently guilty of lies and or/recklessly allowing lies to be brought into, or stated, in open court.
12. Continuing the Equality of Arms issue, at paragraph 57 of the judgement, it seems clear still that Defendants have shown the judge publications after the 4th Defendant had thought better of his postings upon legal complaint, not the originals. The Judge has stated that Defendant 4 has written “I feel sorry for your kids” – these words were never complained of and did not appear at the time the words complained of were written. They were later changed to’ kids’ because I had reported Defendant 4 to the police as a precautionary measure on a possible child protection issue. This paragraph should read “I feel sorry for Milo and Tilly” (marking the moment my children’s names suddenly appeared before me online in his hostile attack that worried me considerably, it seemed so mentally unbalanced). It appears the control the Defendants have had in presenting information to the judge has had a deleterious effect on the Claimants’ position. It seems obvious that the judge has been presented a not wholly accurate account of the relevant postings, for obvious reasons and, further, it seems unjust that the Defendants, who are accused of defamation, have their presentation to the court favoured over the Claimants. There is the very real danger here that what has been presented to the court by the Defendants is not the full picture as presented by the Claimants in their own submissions.
13. It is otherwise inexplicable how the Judge could have arrived at the conclusion he did on these important points, he has been so careful and diligent in all other respects. Moreover, whenever any question of fact or any detail that was required, the Defendants were favoured over the Claimants in presenting that information to the judge. The time in open court given to the Defendants was likewise disproportionately in their favour, giving so little time for the Claimants to answer points raised, albeit the documents were taken away to assess over some considerable time, but still in all that time vital information was apparently not made available to the judge. We believe procedurally we were distinctly disadvantaged in this claim contrary to law. On the principle of Equality of Arms, too, then, we contend that a full trial with a jury in which equal control of documents presented to the jury is required to ensure fairness and balance in access to justice.
14. At paragraph 21 of the judgement, the judge raises the point of company representatives playing a “sufficient part” in the particular publication complained of for them to become liable in person. We already have the admission that Richard Dawkins may well have agreed the main post in question on his site– a 1 in 4 chance before disclosure, which could significantly reduce that - but we have nevertheless the very important historical defamation of a Turkish citizen that closed access for that website to Turkey’s 80 million and more population as a result, in addition to the disgrace acknowledged by Richard Dawkins himself in relation to the hideous attack on his own webmaster, Josh Timonen, and the subsequent decision by Richard Dawkins to place the vetting procedure on that site. The point is, not only could he be directly responsible for agreeing the post – the agreed trialable issue - he is also indirectly responsible i.e. he played a ‘sufficient part’ in its publication whether he directly agreed to it or not, since the raison d'être of that website is demonstrably not the advancement of reason and science but to attack and vilify people of faith, and with such ferocity that even Richard Dawkins himself was staggered, and yet he allowed the discussion forum to continue, knowing the malice and cruelty and historical defamation that swirled around his value-system to ‘go out on the attack’ against people of religious faith.
15. Secondly, the 1996 Act (2) states: “For this purpose "author", "editor" and "publisher" have the following meanings, which are further explained in subsection (3)—"author" means the originator of the statement, but does not include a person who did not intend that his statement be published at all” -- Much of the language used, the words deployed in the defamatory attack, are those whose coinage, impact and power are the direct responsibility of Richard Dawkins himself. The names of the posters are not Richard Dawkins on his own site, no; but since the views they espouse on his behalf include his own language, a language he has taught them all to use as a weapon, he is, it is argued in this case, the joint-author of these offenses in all but name; there is even the admitted menu of horrid word choice (such as calling people ‘fleas’) handed to the posters, such that the TAGS complained of, selected from a menu, are the joint author-responsibility of Defendants 1 and 4.
16. Further, the 1996 Act states: "publisher" means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.” -- This, of course, is beyond question – Richard Dawkins is the person who gives his name to RichardDawkins.net and the business is RDFRS, whether American or otherwise, so he is the de facto publisher, in law: “a person whose business it is…” His name is the attraction and if he takes no responsibility for the site’s defamatory content then he may abdicate responsibility, but he surely cannot be absolved of responsibility. He is the publisher, and his motives and character become all important in the context of his site’s mission. There is so much that ties Richard Dawkins to the words complained of that “sufficient part” is, we think, an eminently trialable point, as is the motive and intent (facts, now that Defendant Four pleads justification and the judge pleads justification for all Defendants in the strike out) linking Defendants 1,2 and 4.
17. Undisputed facts : At paragraph 2, the judge states: “None of the parties referred me to the book itself or any part of it in evidence during this hearing”, which is incorrect. The entire book was demanded of the Claimants as evidence in pre-hearing submissions and was produced by Defendants in open court in November 2011 at the instigation of the judge. The Claimants have repeatedly advised that the parodical nature of the book is crucial to an understanding of the unfolding satirical parody on Amazon, which parody is referenced at the book’s appendix, as was the revelation that the author behind the character, Scrooby, was Chris McGrath. So that when the judge states that we ‘inserted a puff review’ this is a fact sensitive issue that has not fallen to the benefit of the Claimant.
18. At paragraph 2 of the judgement, the judge stated, “it would not be appropriate at this stage of the proceedings for the Court to assume that C's own intellectual position is necessarily the same in all respects as the book's”. It was ‘Scrooby’ in the exchange on Amazon trying to create a satire, so it cannot be right to say that Chris McGrath ‘started it’ as alleged, but rather a character with an unfolding satire.
19. In paragraph 4 of the judgement, the judge states: “Obviously Prof. Hawking's book was likely to attract far more interest among readers than C's, but at least some of those readers might also be interested in C's book if it came to their attention. C therefore decided to adopt a marketing tactic”. This statement is incorrect. It was not a question of reader numbers for which a ‘marketing tactic’ was created but a satirical reflection of the questionable use of mathematics with no way of validating the maths to confirm the non-existence of God. What the judge claims here is plain wrong and it colours the judgement profoundly since it bluntly equates puff reviews with questionable sales tactics with no proper recognition of the artistic intent. A jury, properly directed, would be offered the full artistic impulse behind these actions rightly to unhook the implied meaning here from one of questionable marketing to one of artistic endeavour. I adopted a parody of a marketing tactic, not a marketing tactic. Holding a mirror up to the offence is the way in which satirical parody operates.
20. At paragraph 18, the judge states: “C also refers to other serious matters which if true might affect Mr Jones's credibility, But: a. These matters are disputed in various respects and the stage to determine them has not yet been reached.” The judge adds at paragraph 18:” b. Mr Jones's credibility would be relevant, if the Court had to decide a disputed issue of fact which turned in whole or part on his evidence.” This is an error in law, we submit. Mr Justice Tugendhat stated in McKewon v Attheraces Ltd as follows: “Intention is a state of mind, as is motive. But the law treats intention as a matter of fact.. for the purposes of pleas of justification in libel.” At paragraph 10 of his defence, the Fourth Defendant states,“The Fourth Defendant maintains that the words complained of by the Claimants are either fair comment and/or justified.” So a plea of justification triggers the issue of the fact of intention and motive. There are disputed issues of fact (motive/intention) that turn on his evidence, for instance the lie that he found LinkedIn evidence (that in fact did not exist at the time), to form his judgement of the claimants. Therefore his credibility is relevant to prospects of success at trial, and the fact of motive/intention was not allowed into play, despite the Claimants’ legal arguments. But not only has the Fourth Defendant pleaded justification in his Defence, the Judge has pleaded that justification would survive (for all defendants) to the detriment of the Claimants on numerous counts were it to go to trial. Therefore, in pleading justification on behalf of all defendants, we argue that the judge brought into play, pre-trial, matters of fact of intention and motive (and therefore character) that he unjustly left to be dealt with at trial where the defendants are concerned, but not in relation to the motives, intent and character of the Claimants, which is wholly disproportionate. In other words, the judge put the First Claimant’s character on trial to justify his anticipation of jury reaction regarding prospects for success, but protected the defendants from similar scrutiny. This is grossly unjust.
21. At paragraph 93.i the judge states: “ In reaching this conclusion so far as comment/opinion is concerned I bear in mind the live issue of malice, particularly against the 4th Defendant, but also the rule that in this context "malice" refers only to the putting forward of an opinion which one does not genuinely hold; see Cheng v Paul  EMLR 31. Given that Mr Jones is clearly a person who holds strong opinions of his own on the matters in question, and that in the light of the matters at  above there is a strong factual substratum on which his comments/opinions could be based, proving his malice in this strict sense would be a very challenging exercise. Although C has asserted his insincerity he has not indicated any facts or matters which point clearly towards it, as opposed to malice in the wider and more popular sense of hostility or spite.” The Claimants maintained from the outset that they are dealing with a malice so fierce that in the anti-religious context in which it is executed it necessarily becomes a question of insincerity at every point, so that genuinely held beliefs in the truth don’t come into it, since the whole motive for the attack is an aggressive irrational prejudice, which employs lies as and when required to beat the victim into submission, to wreck them in any way possible, and to ‘publicly humiliate’ them, as Mr. Jones proudly boasted of in his email to the Claimants at the time, which is on court file. None of the words complained of were genuinely held opinions. Mr. Jones didn’t care whether they were true or not, he was so reckless in his disregard for their veracity, so that, re. Cheng v Paul  EMLR 31, insincerity in this sense is self-evident in such malice. Moreover, at paragraph 13 of the Claimants’ reply dated 8 November 2011, I stated it was “an attack in which the words complained of were unrecognisable as mere comments and only recognisable as imputations of fact, which - when combined with malice, and such obvious disregard for the facts from a proven liar that he could not possibly believe the things he was writing - fairly nullifies any claim to fair comment, as per the Supreme Court Judgement of 1.12.2010: Spiller v Joseph”. In addition, as intention and motive are facts once a plea of justification is made, and the judge in exercising his ‘inherent jurisdiction’, as asked of him, pleaded justification on behalf of the Defendants, and as the Fourth Defendant himself made that plea in his defence, the legal facts of intentions and motives were put before the court for all defendants and were unjustly ignored.
22. The judge claims fair comment is a key part of Jameel when considering a jury’s likely verdict, and we have, we think, demonstrated insincerity, spite and ill-will, all aspects of malice, in this claim so as to eradicate the appeal to fair comment or justification, as was made in Defendant Four’s defence; and we cited Cheng v Paul and then Spiller v Joseph in this regard to drive this point home, that there could be no such defence, and therefore that aspect of Jameel could not hold. I stated of the Fourth Defendant in submissions that ‘he could not possibly believe the things he was saying’ and the foundation of my claim is libel aggravated by malice, and so the malice question must be dealt with before a proper determination can be dealt with, since the quality of malice in this case is stark. The judge’s suggestion that we have not indicated any facts or matters that might deal with malice is incorrect as a matter of fact and the result is an unjust, unfair and a wholly disproportionate application of the law in favour of the Defendants in this case.
23. Spite or ill-will is malice in law, as is insincerity. It is insincere to claim in evidence that informative knowledge on which to base his attack was provided to the Fourth Defendant by a LinkedIn profile which did not exist at the time, and we flagged up this insincerity; an insincerity that is again in evidence in the nature of the lines of defamatory attack that, for the judge, passed the threshold of seriousness, so that there is no logical or factual consistency here to state, as the judge does, that there is a “strong factual substratum on which his comments/opinions could be based, proving his malice in this strict sense would be a very challenging exercise” – those lines of defamatory attack which pass the threshold of seriousness have no basis in fact whatsoever so that it would in fact be easy to show there is no factual substratum, and the malice is clear; but it would in any case be for the defendants to prove their case, not the other way around. Moreover, the judge states: “Although C has asserted his insincerity he has not indicated any facts or matters which point clearly towards it” – the defamatory material itself points to it, as does the LinkedIn insincerity, all backed up by the anti-religious malice, callous spite and ill-will of the Fourth Defendant. But again, following justification pleas, intention and motive become facts, put before the court and ignored.
24. Decisions on the ambiguous meanings are on balance falling in favour of the Defendants, contrary to Johnson v MCG Ltd where ambiguity results in decisions in favour of the Claimants, points picked up in Lowe V Associated Newspapers. For instance, at paragraph 33 of the judgement in our case, it states: “There was a dispute between C and Amazon about the distinction between reviews and comments, but it is largely of academic interest because there is no reason to suppose that any manual review took place here, the forbidden words not having been used .) I do not understand C to be saying that Amazon was at fault so far as the selection of filtering criteria is concerned”. This is precisely what is disputed and so this is an error of fact. ‘Review’ on Amazon tells us someone was responsible for looking at and agreeing to the material being posted and it is not yet determined as fact that this is not the case and so must be appealed as it is a trialable, fact sensitive issue of enormous importance. After disclosure, evidence and trial it may well emerge that it was indeed approved, just as the Dawkins website approved the post. That the judge decides ‘there is no reason to suppose’ is finding in favour of the Defendant on a fact-sensitive issue of crucial un-resolvability pre-trial.
25. At paragraph 38, the judge states: “As to whether the defendant qualifies for protection, Reg. 19 sets a positive test: So far as the Reg. 19 test is concerned, it is clear that the service Amazon provides to its users, of storing their reviews and comments for reading by others, falls within that definition”. We do not agree with this interpretation of this law at all and it is not black and white but still again it falls for the benefit of the Defendant. Amazon.co.uk does not store: that would be a passive activity in which it pays no heed to what’s going on, like a warehouse storing items, or a web server storing millions of sites: Amazon has a separate webhost facility on which one of the many thousands of sites it no doubt carries is RichardDawkins.net (we discover) and that would fall into storage. Instead, Amazon.co.uk records and publishes and actively participates in the discussions by monitoring and vetting and deciding upon content and listening to complaints and deleting material and so on, around which it sells product, generating traditional High Street ‘footfall’ to increase sales and it must monitor those discussions and police them to keep the sales on track. That’s not storage and it is certainly a trialable, fact sensitive issue, we would contend, that at trial could be revealed to be decisive upon document disclosure and cross-examination of corporate activity and intent.
26. At paragraph 40 the judge states: “even though Amazon may well be the "publisher" of the website and its user-generated content, in the broad sense in which that term is used in defamation law, and may well do so in the course of its business (i.e. as a means to its primary purpose of retailing the products of others) it is nevertheless plainly not a "commercial" publisher within the definition of s.1(2).” This again is an issue of such unresolved ambiguity in law that it should fall to the benefit of the Claimants but has not. Moreover, website addresses ‘publish’ material – that’s the basis of internet libel law. It only remains to establish who is liable. The judge’s assessment is, with respect, a convoluted and unwieldy construction that threatens to create more ambiguity in law than is necessary and is an unsound interpretation of the Act. In addition, there is no logic in appealing to the 1996 Act in support of a defence and then to say that the company seeking to benefit from it does not fit the criteria as a ‘commercial publisher’. It’s either a commercial publisher that does benefit from it (or not, depending on the specifics), or it does not benefit from it because it is not a “commercial” publisher. The 1996 Act is clear, that the display of false information damaging to the reputation of the person referred to in that information, via a publically accessible system, will be considered by the courts to be ‘published’, regardless of the ‘commercial’ label, and is thus libellous.
27. At paragraph 42 the judge states “C does not put forward any case for such actual prior knowledge.” This is plainly incorrect. If we contend they have a defamation policy and are therefore aware of the laws of defamation and also have editorial control over ‘review’ posts as we contend and which remains an issue of factual dispute then we do of course contend prior knowledge. This is a triable, fact sensitive issue, we believe. Because as the Judge also points out at paragraph 43, “… the word “unlawful” in Reg. 19 has been held to import the further requirement that the defendant should also “know something of the strength or weakness of available defences”;see Bunt v. Tilley 1WLR 1243,per Eady J at para. 72.
28. At paragraph 47 the judge states: “Amazon's case is that in his communications with it C never even clearly specified the location of the postings of which he now complains, let alone set out facts and matters that would show them to be untrue or unfair.. “, and at paragraph 48, “But even if he had done that (which, it is plain from his communications with Amazon set out above, he did not) Reg. 19 demands more from a complainant, if the defence is to be overcome. He must disclose facts or circumstances making it apparent that the postings were unlawful… If he omitted to put forward a case on the merits, it would not be possible for Amazon to investigate or adjudicate upon it, nor did the framers of Reg. 19 expect it to do so.” Firstly, In Karim v Newsquest Media Group Case Reference  EWHC 3205 (QB), The Department of Trade and Industry and the Law Commission considered that Regulation 19 applied only to internet intermediaries providing server-based internet storage for websites and newsgroups. In this case now under consideration, in relation to Amazon we believe the judge erred in characterising Amazon’s website and comments forum, which generates so much business for it (through ‘footfall’), as a mere passive intermediary benefiting from Regulation 19. It is not a server-based internet storage facility. It reviews, deletes, edits, responds to objections and complaints regarding content control. It is also entirely inconsistent with Libel Law to state that anyone Libelled is presumed to have been libelled by dint of claiming Libel and it is for the defendant to prove their case and yet for the purposes of reg.19 there must be some demonstrable disclosure of facts that demonstrate unlawfulness. Moreover, it is in fact an unjust burden to place on those libelled to present facts and circumstances to make apparent that postings are unlawful while an attack is underway, and nor can ‘facts’ be regarded as sufficient clarity in law given the need for witnesses and cross examination and so on at trial.
29. By the same token that the judge states he does not believe the framers of regulation 19 to have meant for Amazon to investigate and adjudicate upon each and every defamatory line of attack without specifics, the Claimants contend that the framers of regulation 19 did not intend for the Claimants to be placed under such a specific and nigh-on impossible burden, so that it should have sufficed (indeed by Amazon’s later actions it did suffice) that the Claimants merely directed Amazon to the urls wherein the words complained of were being written, and to advise of the specific person responsible for the defamatory attack. We believe we met this part of Regulation 19, in fact.
30. But there is, in addition, an aspect of libel which itself rebuts this, we contend: the defender may find themselves liable in damages even when they did not and could not intend to harm the claimant’s character, honour or reputation. They may indeed have taken reasonable care to avoid causing injury, but if they have, in fact, defamed the claimant, then it is no defence to say that they did not intend to do so. This position is illustrated by the well-known case of E Hulton & Co v Jones. The defence was that, since the newspaper writer had no knowledge of the existence of the real Mr Jones, he could not be said to have any intent to injure or, in other words, that his lack of intention amounted to lack of malice. That defence was rejected, unanimously, by the House of Lords.
31. At paragraph 88 c the judge continues: “…the limited margin between the truth about the Claimants’ activities, as admitted by them, and the defamatory stings of which they may properly complain”. There is no such limited margin. This is an error in fact. Of the six to seven defamatory lines that pass the threshold of seriousness in particular, there is not a shred of truth in them and so there can be no such limited margin. In Taylor v Associated Newspapers Limited  EWHC 2494 (QB). Tugendhat J refused to grant summary judgment to the defendant or to strike out the claim as an abuse. The defendant had failed to show that, on the basis of matters admitted by the claimant, a jury would inevitably find that the published allegation was substantially true [26-27]. It followed that it was not possible to say that the difference between what had admittedly occurred, and what was alleged (but denied), was so narrow that it would be an abuse of process for the claimant to continue to seek vindication [33-34]. Therefore, failure to show that, on the basis of matters admitted by the Claimant, a jury would inevitably find that the published allegation was substantially true, meant the case was not struck out as an abuse. There is in this current case before the judge absolutely no evidence, no argument, and no possibility of showing that the libellous words complained of (as may survive strike-out on the basis of not being libellous) are true. The logic for Tugendhat J is that, in such circumstances, ‘it followed that it was not possible to say that the difference between what had admittedly occurred, and what was alleged (but denied), was so narrow that it would be an abuse of process for the claimant to continue to seek vindication." There is an enormous gulf between what has been admitted (that the First Claimant inevitably participated in the threads as part of the satirical parody underway and tried hard to steer the event back on its artistic course) and what was alleged (see above re lies, charlatan, willing to lie to the police, failed his degree, etc.).
32. At paragraph 91iii the judge states: “He did participate in the online Amazon debates using false identities purporting to be real people agreeing with and defending him, when in fact they were just his aliases.” We do not believe a jury, properly directed, would lay such heavy emphasis on these points to the exclusion of the satire, nor that they would agree that it, or anything else the Claimants did, is justifiable provocation for a defamatory attack. This is, we contend, grossly disproportionate and breaches the principle of proportionality.
33. The judge continues: “It raises an obvious question: what real and substantial need does C have for a vindication through the courts, when he has already put his case to the original audience at the time of the original publication?” This is an error in fact: we did not because we could not conceivably answer the serious allegations to vindication in that hostile arena.
34. Moreover, the Avoidance of costs is a vital relief, a vital thing at stake, and a vital thing to be gained by vindication at trial. To have a time and costs argument as a reason to avoid a trial but then to land the claimants with over £75,000 in costs is, we think, perverse, since it is a de facto loss-at-trial cost without the benefit of a trial. This has not been properly legislated for in statute or in common law and needs to be addressed on Appeal.
35. Moreover at Paragraph 94, which states as above: “…he has already put his case to the original audience at the time of the original publication..” This cannot apply to Richard Dawkins’ website since there was no participation and the notion that the two websites can be seen as one thread would imply joint and several liability. We contend that this has no legal basis in law and believe it is challengeable. It also reveals the stark defendant-bias to make such an extraordinary leap of logic.
36. In McLaughlin & others v London Borough of Lambeth & anor, Para.65 states: “Mr Rushbrooke submits that libel proceedings are not simply to compensate a claimant for harm already done. It is to prevent harm being done in the future if the falsity of the allegations is not publicly established: Broome v Cassell & Co Ltd  AC 1027, 1125, citing Ley v Hamilton 153 LT 384, 386 (“‘It is impossible to track the scandal, to know what quarters the poison may reach’. So long as its withdrawal is not communicated to all those to whom it has reached it may continue to spread”). The Claimants here agree that part of the vindication sought is the public establishment of the falsity of the allegations to help prevent further harm being done and on which there will always be a sound footing on which to rely in answer to any on-going assaults as may arise.
37. Paragraph 45 of the judgement. “One specific point taken by C on "reasonable care" should however be dealt with. The Act identifies "the previous conduct or character of the author, editor or publisher" as being relevant to whether the distributor took reasonable care. C points out that Amazon has in the past twice been found liable to Lord Trimble for defamation, and that this indicates a bad character for libel, precluding it from relying on the statutory defence. But it is the character of the author (Mr Jones), not that of the distributor (Amazon), which is relevant for this purpose; if Amazon had known him to have a bad record as a defamer, and still allowed him to use its pages (as opposed to putting him on the blacklist) that would plainly be relevant to reasonable care; but there is no evidence that it knew or ought to have known anything about him. (In any event, with so vast a website, one or two such incidents in the past are not likely to be of much assistance in deciding whether reasonable care was taken in this case.)” The point is not that Amazon might have known the Fourth Defendant and guarded against his activity, but that Amazon themselves have insufficient care regarding libellers in toto, commercially calculating as they would in business that the cost burden of fielding libel threats is outweighed by the cost advantage of the sales, garnered by the millions of buyers of goods from within its open review sections. It lets the risk of libel occur over and over again, repeatedly damaging people’s character and reputation and expecting to gain protection from an intermediaries defence while it does so to its cost advantage. The ‘reasonable care’ is not writer-specific, but publisher-specific. This is a triable, fact-sensitive issue that could upon disclosure, evidence and cross-examination reveal a corporate strategy in this regard. The final line of the judge in that paragraph is also instructive: “In any event, with so vast a website, one or two such incidents in the past are not likely to be of much assistance in deciding whether reasonable care was taken in this case” – the judge is required to find issues of indeterminate fact in favour of the Claimants; yet here he sides with the Defendants, gauging ‘likelihood of assistance’ as may be found at trial in favour of the Defendants. There would be the question at trial as to how many libel cases Amazon has had to defend that did not reach this stage and they would be required to disclose numbers. It is a fact sensitive issue as yet undetermined.
38. Cairns v Modi  EWHC 2859 (QB). “Mr Andrew Caldecott QC for the Claimant put it, if Mr Cairns was a cheat, he loses his case.” The allegation on Twitter was that he was a cheat, plain and simple, and it was not struck out as an abuse of process – and the Claimant won his case. In the current case before the judge, a good deal more than being called a cheat has been levelled at the Claimants, not least that he was willing to lie to the police, and thus pervert the course of justice for which, it is understood, life imprisonment can be meted out.
39. McLaughlin v London Borough of Lambeth  EMLR 8. Tugendhat J refused to strike out a claim. Although the extent of publication was small, the action was not a Jameel abuse: there was a risk of republication and there was a prospect of vindication at trial (truth/falsity of the allegation was in issue: there was a plea of justification in relation to the defamation claim, as well as a claim for a declaration of falsity on a claim under the HRA) [111-112]. In the current case before the judge, the risk of republication is not only possible, the entire libels on both websites, Amazon’s and Dawkins’, remain available on the net and are circulating, having been archived at archive.org and then copied by others. In addition, there is every prospect of vindication at trial for all the reasons stated above.
40. Underhill v Corser  EWHC 1195 (QB). Tugendhat J refused to strike out a libel claim as an abuse. He found that defamatory words published to thirteen people – dishonest misappropriation of funds from the society – was “so serious” that it was proportionate for the Claimant to proceed with this claim. To be called a thief is ‘so serious’ that it was proportionate to proceed to trial. The libels in our case are as serious if not more so.
41. In McKeown v Attheraces Ltd (Feb 2011) the Claimant also faced Jameel. The decision was:“It will be open to the Claimant to ask the jury to vindicate his reputation, including by rejecting a defence of justification. If he succeeds the vindication will be of real value to him and be substantial.” We ask the courts: in what way will if not be of real value and substantial to the Claimants in this case to be likewise vindicated? It will be.
42. Lastly, the European Convention on Human Rights states that where a state fails to provide a remedy to an aggrieved individual by way of an action for defamation the state may be responsible under Article 8(1). Article 6 may require the state to interfere with freedom of expression if the right of a person to a fair trial may be prejudiced. In Radio France v France  the court held: “The Court would observe that the right to protection of one's reputation is of course one of the rights guaranteed by Article 8 of the Convention, as one element of the right to respect for private life." (para 31). Therefore Article 8 reputation rights have also been infringed, we contend. We also argue that the Second Claimant, a company – corporate entity - enjoys the same rights under the Human Rights Act as people, since the Act explicitly states ‘one’ or ‘everyone’ when specifying the protected parties, not only a human being, but a human ‘one’; and since a company is a ‘legal person’ it is a ‘one’ within the definition of ‘everyone’ Moreover, In Broadway Approvals v. Odhams Press Limited  1 WLR 805 at 813H , Sellers LJ said: “… a company’s mind is not to be assessed on the totality of knowledge of its servants”. So it has already been argued in law that a company does indeed have a mind and a mind can be emotionally affected, (on which basis we also challenge all damage considerations denied to the company in the judgement). We do not believe this judgement respects these rights.
By: __/Mr. Christopher A McGrath/____
By: __/Mr. Christopher A McGrath for and on behalf of McG Productions Ltd
Date of oral hearing: 5 February 2013