On 1 October 2020, the supermarket chain Sainsbury’s published two Tweets on its Twitter account @sainsburys:

1. a “Celebrating Black History Month” graphic with the words: “We are Celebrating Black History Month this October. For more information visit [link to Sainsbury’s website given]. #blackhistorymonth”; the linked website page was headed: “Celebrating Black History Month”, and stated, “Recently we provided our black colleagues with a safe space to gather in response to the Black Lives Matters movement” (the Sainsbury’s Website BLM Statement); and
2. a graphic with the words: “We are proud to celebrate Black History Month together with our Black colleagues, customers and communities and we will not tolerate racism. We proudly represent and serve our diverse society and anyone who does not want to shop with an inclusive retailer is welcome to shop elsewhere”.

On 4 October 2020, Laurence Fox Tweeted: “Dear @sainsburys I won’t be shopping in your supermarket ever again whilst you promote racial segregation and discrimination. I sincerely hope others join me. RT. Further reading here [website link given].” Mr Fox said that the link given was to the Sainsbury’s Website BLM Statement.

On 4 October 2020, the actor and writer Nicola Thorp Tweeted: “Any company giving future employment to Laurence Fox, or providing him with a platform, does so with the complete knowledge that he is unequivocally, publicly and undeniably a racist. And they should probably re-read their own statements of ‘solidarity’ with the black community.”

On the same day, Simon Blake, a trustee of Stonewall until 20 June 2021, quote Tweeted Mr Fox’s Tweet and said: “What a mess. What a racist twat”.

Shortly after, Colin Seymour, an entertainer who has appeared in Ru Paul’s Drag Race UK, quote Tweeted Mr Fox’s Tweet and said: “Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.”

Mr Fox replied by quote-Tweeting the relevant Tweet, and saying:

1. in response to Mr Blake’s Tweet, “Pretty rich coming from a paedophile”;
2. in response to Mr Seymour’s Tweet, “Says the paedophile”; and
3. in response to Ms Thorp’s Tweet, “Hey @nicolathorp Any company giving future employment to Nicola Thorpe (sic) or providing her with a platform does so with the complete knowledge that she is unequivocally, publicly and undeniably a paedophile”. (the LF Tweets).

Later the same day, Mr Fox Tweeted: “Language is powerful. To accuse someone of racism without any evidence whatsoever to back up that accusation is a deep slander. It carries the same stigma and reputation destroying harm as accusing someone of paedophilia. Here endeth the lesson.”

At some point the following day Mr Fox deleted the LF Tweets.

Mr Blake, Mr Seymour and Ms Thorp issued proceedings for defamation against Mr Fox in respect of the LF Tweets, claiming damages and an injunction.

In his Defence, Mr Fox disputed the natural and ordinary meaning of the LF Tweets as pleaded by the claimants and denied they were defamatory of the claimants. He said that any ordinary reasonable reader would have understood that his words were “tit-for-tat vulgar abuse”, which did not bear a literal meaning that the claimants were paedophiles, and that he “was giving the Claimants a taste of their own medicine”. Mr Fox also counterclaimed for libel against each claimant in relation to each of their Tweets, claiming damages and an injunction.

There was much back and forth in correspondence between the parties, arguing about the lack of a Reply and Defence to Counterclaim from the claimants and whether a trial of preliminary issues should be heard first. The claimants were eventually directed to file written notice of their case on the preliminary issues, which stated that, in response to Mr Fox’s counterclaim for libel, each of their Tweets was an expression of opinion, their Tweets were not defamatory of Mr Fox, and publication of the Tweets had not caused serious harm to Mr Fox’s reputation. They relied primarily on defences of honest opinion under s 3 of the Defamation Act 2013 but stated that if any of the Tweets was found to be an allegation of fact, which they denied, then they would each rely on a defence of truth.

Mr Fox then applied to the court for trial by jury pursuant to s 69(3) of the Senior Courts Act 1981, arguing that the issues to be determined in connection with racism raised a real prospect of the appearance of “involuntary bias” (as referred to in Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB)) on the part of any judge called upon to try the case. Mr Fox submitted that this was a case where the “enhanced impartiality” of a jury justified an order for trial by judge and jury. Central to his argument was that he disputed the definition of “racism” set out in the Equal Treatment Bench Book (ETTB), published by the Judicial College, which he said any judge would be reluctant not to follow. He said that the ETTB definition did “not reflect the way ordinary people use the word”.

Mr Justice Nicklin approached Mr Fox’s application in two stages: (i) consider whether Mr Fox had demonstrated that there was a real prospect of the appearance of “involuntary bias” that could be overcome by ordering trial by judge and jury; and, if not, (ii) consider the application under s 69(3) of the 1981 Act by exercising his discretion, as guided by the authorities.

Referring to the two-stage test for apparent bias as set out in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468, Nicklin J found that Mr Fox had not persuaded him that a fair-minded and informed observer would conclude that there was a real possibility that a judge trying this case alone would suffer from “involuntary bias”.

Nicklin J noted that the fair-minded and informed observer had to be taken to know that the judge would be required to apply the law without fear or favour, affection or ill-will. He accepted that the term “racism” did not have a settled meaning and that what amounted to “racism” was a subject of controversy but observed that this was a defamation claim. The claimants had all used the word “racist” in their respective Tweets. Three issues (at least) that required resolution were therefore: (i) the natural and ordinary meaning of the term as used in the relevant Tweet; (ii) whether the meaning found was defamatory at common law; and (iii) whether each Tweet was or included an expression of opinion or a statement of fact. These were issues that would be resolved by the application of well-established principles in this area of defamation law.

Further, any controversy surrounding different definitions of “racism”, as set out in a dictionary or in the ETTB, would not be considered by the judge (on the well-established principle that no evidence beyond the publication complained of is admissible) and any awareness of such definitions would be put out of the judge’s mind. It was well-recognised that judges are able to exclude irrelevant material from consideration. In Nicklin J’s view, no fair-minded and informed observer could conclude that there was a real possibility that the judge would be involuntarily, but institutionally, biased because of any particular definition of “racism”.

Further, and perhaps more importantly Nicklin J said, because the definition to be applied to “racism” was a core issue, the judge would have to give a reasoned judgment on that very point. In Nicklin J’s view, that was “a better safeguard of avoiding error than directing a jury trial”. He disagreed with Mr Fox that the difficulty of challenging a jury verdict was somehow a virtue. The reason that a jury verdict would be difficult to appeal on such a point was not because, being a verdict of a jury, it was in some way unassailable, Nicklin J said. Rather, unless the jury were to give a narrative verdict, it would be very difficult to identify whether and where they might have gone wrong. If the judge were to make an error, then the Court of Appeal, and ultimately the Supreme Court, existed to put right that error, using the judge’s reasoned judgment.

As for exercising his discretion under s 69(3) of the 1981 Act to order a trial by jury, Nicklin J said that he had no hesitation in rejecting Mr Fox’s application, largely for the same reasons as given by Mr Justice Warby in Yeo v Times Newspapers Ltd [2015] 1 WLR 971, which is the only other case in which the court has had to consider an application for a jury trial in a defamation claim since the abolition of the presumption of jury trial for defamation claims from 1 January 2014.

Nicklin J’s reasons were:

1. the importance of a reasoned judgment;
2. proportionality, effective case management and furtherance of the overriding objective weighed very heavily against trial by jury;
3. the law of defamation had become more complicated since jury trial was effectively abolished by the 2013 Act, with the addition of the new public interest defence under s 4 to replace the Reynolds defence and the requirement to prove serious harm under s 1; the directions of law that a judge would have to provide to a jury would be complex and challenging; and
4. Mr Fox’s “enhanced impartiality” argument, i.e., any vindication achieved by Mr Fox would be enhanced by a jury trial over a judge trial, did not make up in any way for the substantial and obvious disadvantages of a jury trial.

The application was dismissed. (Simon Blake v Laurence Fox [2022] EWHC 1124 (QB) (18 May 2022) — to read the judgment in full, click here).