In Day v Day, Ward LJ said, in respect of litigation, “The question of who is the unsuccessful party can easily be determined by deciding who has to write the cheque at the end of the case.” Carole Cadwalladr is a journalist who made several allegations against Arron Banks and his supposed connections to the Russian Government in relation to his financial support of the Brexit referendum Leave.EU campaign. Whilst several supporters maintained that Cadwalladr had been vindicated after Banks brought a defamation claim against her, it is evident that she is indeed the unsuccessful party. Cadwalladr, after the Court of Appeal allowed Banks’ appeal in Banks v Cadwalladr, is now to pay £35,000 in damages and 60 per cent of Banks’ costs in the High Court. She is to repay the costs that were paid to her following Steyn J’s High Court judgment and to pay one third of Banks’ costs in the Court of Appeal. The Costs Order from the Court of Appeal therefore makes it unequivocal, if it was not already: Cadwalladr will be writing the (metaphorical) cheque at the end of the case. 

A common line of argument following the Court of Appeal judgment was that Banks was the loser, since he had only succeeded on one of his three grounds of appeal. Cadwalladr had apparently won a 2-1 victory, as if the appeal were a sort of football match. That contention failed to take into account the fact that, whilst Cadwalladr had staged a successful defence against Banks’ claim in the High Court, she was ultimately liable for defamation following the Court of Appeal judgment (as I explained in a previous article for The Critic). Banks’ success on the final ground was all that was needed to establish liability. For those who insisted that Cadwalladr was the real winner, the damages and costs provide a seemingly insurmountable argument against their position. To further underline the reality of the case’s outcome, the Court of Appeal in its Costs Order reasons made it perfectly clear that the “Claimant was the successful party on the appeal and overall”. 

A few desperate Cadwalladr supporters have derided the £35,000 sum in damages, as if the case might as well have been a loss. The damages, however, are not dissimilar to those awarded elsewhere. The Labour MP Richard Burgon successfully brought a claim in respect of an article, which had the meaning that he “joined a band which as he knew took great pleasure in using Nazi symbols”. He received an award of damages of £30,000 in a 2019 judgment. In a 2017 judgment, Jack Monroe was awarded £24,000 in damages regarding two tweets by Katie Hopkins.

Cadwalladr has now written that the Cost Order marked a “dark day” for public interest journalism. Cadwalladr says that the facts regarding Banks’ relationship with Russians is “beyond dispute” following the High Court judgment. She has stated elsewhere that the judgment has “huge ramifications” for UK journalism, calling on TED Talks (where the defamatory statements appeared) and the Guardian and Observer (where they did not) for support. Earlier this year, she said, “everything I did, my journalistic processes, the public interest of my journalism, the reporting of Bank’s Kremlin links has been categorically upheld by this judgment” and that “I won the entirety of the main libel claim. The talk was lawful”. 

Cadwalladr has said that the majority of views of the TED Talk were legal, bringing to mind Pool Supervisor Keith Mandemant from The Day Today: “In 1975, no-one died. In 1976, no-one died. In 1977, no-one died. In 1978, no-one died. In 1979, no-one died. In 1980 … someone died. In 1981, no-one died … ”. The important fact is that there was defamation for which Cadwalladr was liable. Previous instances of lawful publication do nothing to change that. 

Cadwalladr abandoned a truth defence on 11 November 2020 and sent an apology

From those statements, Cadwalladr’s supporters can perhaps be forgiven for their mistaken belief that Cadwalladr had met with success. (Indeed, even Labour MP Alex Cunningham, the Shadow Minister for Courts and Sentencing wrote in a now deleted tweet that “she won — it was good journalism”.) To her supporters, it is incongruous that Cadwalladr should apparently be the winner of the litigation, proving her allegations against Banks, and yet have to pay damages and costs. Rather than exploring whether Cadwalladr really did win, many decided to attack the courts. At the most extreme, conspiracy theorists have decided to make allegations of corruption against the judiciary, echoing the “enemies of the people” headline for which the Daily Mail was widely condemned after the High Court judgment in R (Miller) v The Secretary of State for Exiting the European Union. There have been a few attacks on Dame Victoria Sharp who, alongside Warby LJ and Singh LJ, handed down the Court of Appeal Banks v Cadwalladr judgment. They accused Dame Victoria Sharp of bias because her brother, Richard Sharp, had connections to the oil industry and resigned as the BBC chairman after it was revealed that he had assisted former PM Boris Johnson in securing a loan. Those allegations can be dismissed with a line quoted R (United Cabbies Group (London) Ltd) v Westminster Magistrates’ Court on accusations of bias: “I danced with a man who danced with a girl who danced with the Prince of Wales”. The links are simply tenuous. Moreover, the lead judgment in the Banks v Cadwalladr was not given by Dame Victoria Sharp but by Warby LJ, a defamation expert. Dame Victoria Sharp’s contribution was a pithy “I agree”. Singh LJ, noted for his human rights expertise, also joined Dame Victoria Sharp. 

Cadwalladr has been joined in her excoriation of the Court of Appeal (and of Banks) by a number of organisations, lamenting that a journalist would have to pay damages and costs. The Observer said in an editorial that the costs order was a “blow for public interest journalism”, and Reporters Without Frontiers said that it would have a “chilling effect”. To deal with those points, one should recall the facts of the case. Cadwalladr said in a TED Talk on 15 April 2019, entitled “Facebook’s role in Brexit — and the threat to democracy”: “And I’m not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian government”. After receiving a pre-action letter in respect of the TED Talk, Cadwalladr tweeted on 24 June 2019: 

Oh Arron. This is too tragic. Nigel Farage’s secret funder Arron Banks has sent me a pre-action letter this morning: he’s suing me over this TED talk. If you haven’t watched it please do. I say he lied about his contact with the Russian govt. Because he did. 

In a preliminary issue hearing on meaning in the High Court, Saini J found that the tweet and the TED Talk had the single meaning that: 

On more than one occasion Mr. Banks told untruths about a secret relationship he had with the Russian Government in relation to acceptance of foreign funding of electoral campaigns in breach of the law on such funding. 

Cadwalladr abandoned a truth defence on 11 November 2020 and sent a letter to Banks containing an apology. That followed the announcement by the Electoral Commission on 29 April 2020 that it accepted the findings of the National Crime Agency that there was no evidence to suggest that Banks had committed criminal offences or received funding from third parties. In the High Court judgment, Cadwalladr successfully relied on a public interest defence until 29 April 2020. After that date, the “serious harm” threshold — a requirement that published statements should be seriously harmful to be defamatory in law — fell to be reassessed. On that reassessment, Steyn J found that the threshold had not been overcome. The Court of Appeal, however, allowed the Banks’ appeal on that point with regards to the TED Talk (but not the tweet, since the publication would have been more ephemeral).

Her supporters are as susceptible to groupthink as any Leave voters

Cadwalladr, therefore, had ample opportunity to publicly acknowledge that the allegations against Banks were false and to attempt to remove the defamatory material. Cadwalladr had indeed accepted that the allegations were not true in her apology to Banks. Banks says that he had also offered to settle five times. Now that the defamation has been established, Banks has secured, according to the reasons in the Court of Appeal Costs Order, “the amendment of the TED Talk, an undertaking not to repeat the allegation complained of, and the removal of some Tweets”. In light of the fact that Cadwalladr was the losing party, it is not surprising that she should bear some of Banks’ costs and repay the costs (£790,634) that Banks paid to her following the High Court judgment. The Court of Appeal, taking into account the fact that Banks did not succeed on every ground of his appeal, reduced the costs that Cadwalladr would pay. The Court of Appeal pointed out that “our allocation of costs fairly reflects the Defendant’s partial success in defending publication of the TED Talk in phase one and the Tweet”. It also added that having regard “to the evidence before us about the status and means of the Defendant and the way she has funded this litigation we see no need to depart from the orders we would otherwise have made”. Cadwalladr has raised a significant amount of money from crowdfunding, and she appears to have had after-the-event insurance and a conditional fee agreement. Alan Rusbridger, editor of Prospect, said that the Order did not reflect the “overall balance of the findings” and the public interest involved, ignoring the points made in the Cost Order, which noted the defendant’s means and her approach to litigation funding. He also ignores that a significant bulk of the money is merely being repaid to Banks. The Order, then, despite the insistence of some commentators, is not particularly unusual. The losing party has borne the costs. 

Whilst there may well be an issue with high costs in defamation cases in relation to the law as a whole, the Cadwalladr case is certainly not unusual, surprising or punitive. Cadwalladr’s supporters like to think of themselves as being a well-informed contrast to oikish, easily-led Brexit voters. Their conduct, in attacking and engaging in wild smears against judges, shows that they are as (and perhaps more) susceptible to groupthink and evidence-free assertions as most Leave voters. There has been a deluge of absurd claims regarding the litigation. The statements made by Cadwalladr and Rusbridger in relation to the case, although not precisely drifting into the realm of conspiracy theory, do tend to expose misunderstandings regarding the legal system and a lack of care in commentary. It is not too difficult to understand how Cadwalladr was found to be liable in the first place.