On 16 September 2022, the Crown Court handed down judgment in the case of R v Belfield.
Mr Belfield was convicted of stalking various individuals, including well-known television and radio presenter, Jeremy Vine, pursuant to the Protection from Harassment Act 1997 and was sentenced to five and a half years imprisonment along with indefinite restraining orders in favour of each of the victims.
Whilst this was a criminal prosecution it is important to note that private individuals can pursue a civil case against perpetrators of harassment and can, if successful, obtain an injunction with similar effect to the restraining orders issued in R v Belfield.
Last year, the same facts gave rise to a civil harassment and defamation case pursued by Jeremy Vine against Alex Belfield. Mr Belfield worked for the BBC for 15 years and after leaving set up a YouTube channel – ‘Alex Belfield – the Voice of Reason’ – that has some 281,000 subscribers in addition to a Twitter account with some 27,000 followers as of April 2021. Over the course of a one-month period between 13 July and 13 August 2020, the Defendant published four YouTube videos and three Tweets about the Claimant. The Claimant was not happy about those publications and issued proceedings.
The Defendant did not file a defence. Instead, he issued an application seeking a trial of various preliminary issues. The purpose of the hearing at the end of 2021 was therefore to consider the preliminary issue of:
“a. the natural and ordinary meaning of the Tweets and the Videos; and
b. in respect of each of those publications, whether the meaning found was defamatory at common law, whether it made a statement of fact or included an expression of opinion, and insofar as it contained an expression of opinion, whether, in general or specific terms, the basis of that opinion was indicated in each publication.”
The Defendant was also ordered to set out his position on the natural and ordinary meaning of the words spoken in respect to the Claimant’s pleaded case. The Defendant failed to comply claiming that to do so would be a breach of his bail conditions. It is fair to say that the Judge was not impressed with this argument, as he stated his scepticism that the response could be a breach of such conditions but, even if it was, the Defendant solicitors should have applied to vary those conditions to enable the Defendant to comply with the Court’s directions.
The Claimant applied to the Court for an order requiring the Defendant to comply in terms of setting out his position or there be judgment in favour of the Claimant (Unless Order). The Judge’s thoughts on issuing an Unless Order was as follows:
“The Defendant has failed to comply with two orders of the Court. He will find that further non-compliance may well lead to sanctions being imposed. However, I am not going to allow the noncompliance to derail the Preliminary Issue trial listed for 5 October 2021 which will go ahead. The Defendant has an opportunity to advance his case on the preliminary issues and fairness requires that the Claimant not be ambushed by them. I have therefore adjusted the timetable for skeletons so that the Defendant will provide his submissions on the preliminary issues and then the Claimant can respond to them. The unless order proposed by the Claimant represents a disproportionate sanction for non-compliance. Ultimately, if the Defendant does not engage and refuses to set out his case on the preliminary issues, it is he who is likely to be prejudiced by that failure.”
Notwithstanding the Judge’s change in directions, the Defendant still did not set out his case on the ordinary and natural meanings of the words stated. The Judge said:
“The original Skeleton Argument did not identify the Defendant’s case on meaning, and the supplemental submissions have done little to clarify the Defendant’s position. It is tolerably clear to me that the Defendant wishes to rely upon the entire YouTube videos complained of by the Claimant as being relevant both to meaning and to fact/opinion, but beyond that, the precise case he is advancing is very far from clear. That has important ramifications…
23 The position that faces the Court today is very far from satisfactory. It should have been a simple matter for the Defendant to set out his case on the preliminary issues. If he had wanted to advance a case, relying on the proper context of the words complained of as part of the relevant videos, it would have been straightforward for him to have done so. If important to his case on meaning, he could have identified the particular passages on which he relied in support of his contentions as to the natural and ordinary meaning of the words. If, based on that, or more generally, he had wanted to contend that, in their proper context, the publications each conveyed a general or common sting then that needed to be identified. The Defendant has not done so. Instead, I have written submissions that make confusing and, in my mind, confused submissions that do not identify clearly the case that the Defendant is advancing.
24 I have explored with counsel this morning what the Court ought to do. I could proceed to resolve the preliminary issues, and this is the course urged by Mr de Wilde on behalf of the Claimant. If the Defendant was prejudiced by his failure to identify any “common sting” then that was his fault for having repeatedly failed to comply with the Court’s orders and directions. I remind myself that, in the reasons order of 13 September 2021, I stated that the Court would not allow the proper case management and progression of this claim to be derailed by the Defendant’s failure to comply with the orders of the Court. I also accept that the matters to be resolved are questions of fact to be determined applying the conventional principles I have set out above. Save for the hyperlinked videos and the Tweets, this exercise is done, respecting the well-established parameters, without reference to any extrinsic evidence. They are, therefore, conventionally straightforward issues to be determined, and there are clear attractions in getting on with things.
25 Nevertheless, I have reluctantly reached the conclusion that simply ploughing on would risk unfairness to the Defendant. Recognising the force in that, Mr Henderson has made an application this morning that the Court should not go on to determine the preliminary issues today. Instead, he agrees that the Court should direct the service of a Defence. A claimant is entitled to know the case he has to meet at the trial of the preliminary issues properly in advance of the hearing. I have no doubt that Mr de Wilde would have been in a position competently to advance the Claimant’s case today but, it seems to me that this is a dangerous area for the reason identified in Bokova. Issues as important as the determination of preliminary issues in defamation proceedings should not be allowed to become some sort of moving target, and in the Defendant’s own interests, his full case in relation to the preliminary issues must be advanced clearly and argued properly.”
The Court’s decision
The Judge, therefore, decided that the preliminary issue trial should be adjourned to enable the Defendant to set out his defence. This is a surprising position given the number of chances that the Defendant had to comply in terms of setting out his position on the ordinary and natural meaning of the words spoken. The Judge, however, was clearly motivated by what was fair in the circumstances. With this in mind, the Judge issued a warning to the Defendant that if he continues to fail to comply the Court may be minded to enter judgment on the whole case in favour of the Claimant as a result of the Defendant’s non-compliance.
Given that the failure for the trial of the preliminary issue to proceed was entirely the fault of the Defendant, it is perhaps unsurprising that the Judge found that, notwithstanding the Claimant having failed to file a statement of costs on time, the Defendant should be liable for the Claimant’s costs of the wasted preliminary issue trial and the prior application hearing and ordered the Defendant to pay to the Claimant the sum of £25,000 on account of those costs.
Comment
This case demonstrates to a point how complex the defamation case process can be and further that the Court has a range of sanctions open to it in respect of non-compliance by a party with its directions. In the interests of fairness, the Judge allowed the Defendant another chance to set out his position and penalised him in costs. The Judge could have quite properly and reasonably proceeded to determine the natural and ordinary meaning without any input from the Defendant at all as a result of his non-compliance and accordingly, the Defendant was fairly lucky with the outcome of this preliminary hearing.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
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