Sivier v Riley [2021] EWCA Civ 713 - David Mitchell successful in Court of Appeal for political journalist relying on publication on matter of public interest defence.

On Friday the Court of Appeal handed down judgment in Sivier v Riley [2021] EWCA Civ 713 allowing the appellant journalist's appeal against the striking out of his publication on matter of public interest defence by Collins Rice J: [2020] EWHC 79 (QB). As held by Warby LJ (with whom Dame Victoria Sharp P. and Henderson LJ agreed) Mr Sivier's public interest defence under s.4 Defamation Act 2013 should be assessed at trial.

Ms Riley, a television presenter, sued Mr Sivier in libel after he published an article entitled, "Serial abuser Rachel Riley to receive 'extra protection' – on grounds that she is receiving abuse". As explained by Warby LJ:

"3… the Article began by referring to some statements Ms Riley had reportedly made in or via the national media about online abuse of which she had been the victim. It then made a number of allegations about Ms Riley's own online behaviour, commencing with a suggestion that she herself was a "serial abuser". The allegations included assertions about Ms Riley's conduct towards a teenage girl who was said to have received death threats. Mr Sivier told readers that evidence in support of what he was telling them was to be found in two external articles, to which hyperlinks were provided.

20… A major theme of the Article was the charge of hypocrisy. Mr Sivier was contrasting what Ms Riley had said to millions via the news media (Channel 4 News, The Times, and The Guardian) with her own public behaviour in front of hundreds of thousands on Twitter.  Mr Sivier was suggesting that her public statements deprecating online abuse were at odds with her own conduct, which was that of a serial abuser who had encouraged others to threaten the life of a teenage girl. He was, in the process, criticising Ms Riley's conduct on the public platform of Twitter, suggesting it was a cause of the death threats made to Rose."

Whilst Collins Rice J had struck out Mr Sivier's truth and honest opinion defences (and permission had been refused to appeal against these decisions) his public interest defence raised distinct issues which should have been considered separately. The judge had erred because she had been, "persuaded to take an approach to the s 4 defence which was wrong in principle, took account of some irrelevant matters and did not take account of some that were relevant." [32]

The Court rejected Ms Riley's case on procedural grounds as well as on its merits. Impermissibly, she sought to raise entirely new arguments in a respondent's notice which had not been advanced below:

"18… These are not just points on which the Judge did not rely. None of them were argued before the Judge, in any form. We do not usually allow entirely new points to be taken on appeal. It is often procedurally unfair to do so, and normally wrong because appeals are by way of review not re-hearing. Ordinarily the place for arguments to be given their first run-out is the court of first instance. Any appeal would then be a first appeal. For those reasons I would be averse to upholding the Judge's decision on any of these additional or alternative bases."

In Warby LJ and Dame Victoria Sharp P. the Court included two senior libel judges responsible for a large body of the caselaw concerning s.4 Defamation Act 2013. The judgment serves as an important statement of first principles for journalists defending libel actions. As stated at [27]: 

"An important function of the s 4 defence is to protect those who honestly and reasonably get their facts wrong when publishing on matters of public interest."

The matter will now proceed to trial.

David Mitchell acted for Mr Sivier instructed by Morgan Rees at George Green LLP

A copy of the judgment is here.