It is a principal consideration of the Court when considering a strike out application as to whether defective pleadings can be cured. The Court considered this issue further in the context of defamation proceedings brought by Andrew Bridgen MP against Matthew Hancock MP.
Andrew Bridgen MP is the MP for North-West Leicestershire. On 11 January 2023, Mr Bridgen published a Tweet with a link to Dr Guetzkow’s article about data in relation to deaths and other adverse reactions to COVID vaccines stating:
“As one consultant cardiologist said to me this is the biggest crime against humanity since the Holocaust”.
It is fair to say that this Tweet received an adverse reaction from both members of the public but also amongst Mr Bridgen’s fellow MPs, many of which published their condemnation of the Tweet, referring to it as, amongst other things, ‘offensive’. As a result of the Tweet, the Conservative Party withdrew the whip from Mr Bridgen. Later that day, during Prime Minister’s question time (PMQs), Mr Hancock asked:
“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?”
After asking that question, Mr Hancock Tweeted, along with a link to his question during PMQs, the following:
“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”.
Following an initial period of pre-action correspondence, Mr Bridgen issued proceedings against Mr Hancock alleging that the comments made by Mr Hancock were defamatory of Mr Bridgen. Mr Hancock issued proceedings alleging that Mr Bridgen’s pleading of his case was defective (but accepted that the defects were in most cases rectifiable) and sought strike out of Mr Bridgen’s claim. The thrust of Mr Hancock’s application was that Mr Bridgen had not set out how the Tweet complained of made reference to Mr Bridgen, given that it did not mention him by name. That application came before Mrs Justice Steyn on 1 March 2024.
The judge distilled the legal principles applicable to her decision as summarised below:
1. When considering a strike out application, the pleaded facts, unless they are fanciful, should, for the purposes of the application be presumed to be true;
2. If the defect before the Court in respect of an application for strike out is capable of being rectified, subject to a suitable order as to costs, the offending party should be given the opportunity to rectify the defective pleadings;
3. The facts and the arguments relied upon by the Claimant on inferred reference (i.e. that a reasonable and ordinary reader would have understood the comments to refer to the Claimant even though he was not named) must be properly set out in the pleadings.
Mr Bridgen was plainly not named in the offending Tweet or in PMQs. Mr Bridgen was therefore obligated to set out his case as to why the reasonable ordinary reader would have understood the post to have referred to him. Reference to a person is capable of occurring in a number of ways, which include:
1. By naming the individual;
2. By describing key characteristics of the individual (such as a unique job title or where he lives); and/or
3. By reference to extraneous facts that an ordinary reasonable reader is likely to have known and inferred that the offending comment was making reference to the person in question.
Paragraphs 1 and 2 above are known as ordinary reference. Paragraph 3 above is known as an innuendo reference. Mr Bridgen attempted to argue that the reference to him being an MP who had his whip removed was sufficient to identify Mr Bridgen. The judge did not agree, citing that there are 650 MPs and the reference to the whip being removed (which only occurred a few hours before the Tweet) is unlikely to have been sufficient to identify Mr Bridgen.
The judge (and indeed the Defendant in large part) accepted that Mr Bridgen is able to rectify his case on the basis that the offending Tweet made reference to him by way of innuendo reference, not least because of the level of media attention and responses to Mr Bridgen’s comments had received. The judge however felt that there were aspects of Mr Bridgen’s pleaded case that were not capable of being remedied and therefore struck those parts out.
Comment
Reference is a fundamental ingredient for a successful claim in defamation. This case is a stark reminder that, where the Claimant is not referred to by name, it is essential to properly analyse and plead the case on reference. A failure to do so, at best, will result in the requirement to amend the claim but with a substantial costs order against you and, at worst, could result in a strike out of some or all of your cases.
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