Insights Court of Appeal overturns decision to strike out the defendant’s defence of public interest in libel proceedings brought by TV presenter Rachel Riley


In January 2019 Michael Sivier, a political journalist, published an article about Rachel Riley, the well-known television presenter, under the heading “Serial abuser Rachel Riley to receive ‘extra protection’ – on grounds that she is receiving abuse”. The Article referred to statements Ms Riley had reportedly made in or via the national media about online abuse of which she had been the victim. It made a number of allegations about Ms Riley’s own online behaviour, including a suggestion that she herself was a “serial abuser”, and assertions about her conduct towards a teenage girl called Rose 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.

Ms Riley sued for libel. At a trial of preliminary issues Nicklin J determined that the meaning of the Article was partly factual and partly an expression of opinion and that the meaning as a whole was defamatory at common law. In the Defence, Mr Sivier relied on truth, honest opinion, and publication on a matter of public interest under ss 2, 3 and 4 of the Defamation Act 2013 respectively. Ms Riley’s application to strike out all those defences was granted by Collins Rice J. Mr Sivier appealed against the striking out of the public interest defence.

Lord Justice Warby noted that in support of the defence of truth, Mr Sivier had relied on a large number of tweets posted by Ms Riley, Rose and others, and on three media publications, which referred to the two external articles mentioned above. In support of the public interest defence, he had relied on only some of the tweets, as well as the three media publications and the two external articles.

Warby LJ stated that to succeed on a public interest defence, a defendant must establish: (i) that the statement is on, or is part of a statement on, some matter of public interest; (ii) that the defendant believes that publishing the statement complained of is in the public interest; and (iii) that the defendant’s belief is reasonable.

Warby LJ observed that in her application to strike out the defences, Ms Riley had relied primarily on the defence of truth, asserting that if the facts relied on in that defence were incapable of supporting it, then the public interest defence “cannot have been reasonably believed”. Therefore, everything turned on the defence of truth. Collins Rice J had agreed, making only the following finding in respect of the public interest defence: “There can be no reasonable belief in the public interest in publishing untrue allegations and unsustainable opinions without some clear explanation and justification. None appears here.”

In the appeal, Ms Riley said that Collins Rice J’s reasons for striking out the public interest defence captured “the essential point that the pleaded defence is wholly deficient in substance and particularity”. Ms Riley also contended that Collins Rice J’s decision should be upheld on the additional or alternative grounds that: (i) the statement complained of was not on a matter of public interest; (ii) the pleaded Defence disclosed no grounds capable of giving rise to a reasonable belief that the publication was in the public interest; and/or (iii) the particulars of the Defence were so deficient that it should be struck out as likely to obstruct the fair disposal of proceedings. Ms Riley also said that that Mr Sivier did not in fact hold the alleged belief, as no honest person could have, on the basis of the true facts.

Warby LJ held that the first and third alternative grounds were entirely new points, as was the contention that Mr Sivier had not believed publication to be in the public interest. Collins Rice J had not mentioned these points and none of them had been argued before her in any form. Accordingly, Warby LJ rejected these grounds of appeal.

Further, noting that the statement complained of must be “on” a matter of public interest, Warby LJ said that it was plainly arguable that the Article was about matters of public interest. A major theme in the Article was a charge of hypocrisy against Ms Riley, contrasting her statements made in the mainstream media with her own conduct on Twitter, which was of a serial abuser who had encouraged others to threaten the life of a teenage girl. The matters of public interest that the Article was “on” were the public conduct of a prominent public figure and the statements she had made or caused to be made publicly.

As for the question of belief, as pleaded by Mr Sivier, Warby LJ said that it was rare for it to be possible to find, on an interim application, that a party could not have held a state of mind that they had asserted and that the Court should be very cautious before rejecting such an assertion without hearing or reading evidence on the point. Particular caution was required in this case, as there was no first instance decision on the issue.

Further, in Warby LJ’s view, Mr Sivier’s actual state of mind, and its reasonableness, had to be considered at this stage in the light of the tweets that he had actually pleaded and the content of the two external articles, not as Ms Riley argued and as Collins Rice J had found, on the entirety of the Twitter exchanges. Mr Sivier’s case about his state of mind was supported by a statement of truth and was not, therefore, inherently incredible. It was worthy of a trial.

Whether it was reasonable for Mr Sivier to hold such a belief, Warby LJ said that, while the pleading of the Defence was sub-optimal, it was not fatally flawed. The facts relied on were clearly identified and relevant. It made clear that the evidential basis for the Article was set out in the two external articles and the tweets. Certain points lacked clarity and sufficient detail, but they did not justify an immediate strike-out as they might be capable of cure by amendment. Accordingly, Ms Riley should have sought further information rather than seeking to strike out on pleading grounds.

In Warby LJ’s view, Collins Rice J had erred in finding that it followed from her conclusions on truth and honest opinion that there was no reasonable basis for defending the claim under s 4. The question Collins Rice J should have considered was whether the facts pleaded in the Defence disclosed a reasonable basis for the public interest defence.

As for the two external articles, the Article suggested that they were the basis for what Mr Sivier had written. Although he had not made clear which aspects were significant and his reasoning process was opaque, that was not a good enough reason to strike it out. Without sight of the external articles the Court could not be confident that, taken in conjunction with the tweets relied on by Mr Sivier, they were incapable of grounding the necessary reasonable belief on his part. The appropriate time and place for an evaluation of these issues was at a trial.

Accordingly, the appeal was allowed. (Michael Sivier v Rachel Riley [2021] EWCA Civ 713 (14 May 2021) — to read the judgment in full, click here).