This article was first published in Entertainment Law Review, Issue 199, 2025, and is reproduced here with their kind permission.

This article reviews and comments on the recent ruling of the High Court in Noel Clarke v Guardian News & Media Limited, in which the libel claim was dismissed on the basis of truth under s. 2 of the Defamation Act 2013 and publication in the public interest under s. 4 of the 2013 Act.

Actor Noel Clarke’s libel claim has been dismissed on the basis that The Guardian established the substantial truth of eight articles relating to allegations of misconduct which were published from April 2021.[1] Evidence in the truth defence was found to be “more than sufficient” to find the substantial truth of the key article which had caused serious harm. The Guardian also succeeded in its alternative defence of publication in the public interest. Mrs Justice Steyn held that the key article complained of was published on a matter of public interest and that the honest belief of the editor-in-chief and all of the defendant’s editorial witnesses and reporters was “undoubtedly reasonable”.

Noel Clarke is an actor, writer, director and producer of films and television drama. His credits include acting roles in the 2005 relaunch of Doctor Who and 2021 series Viewpoint, and production of the “Hood” trilogy. The Guardian carried out an investigation into allegations about Mr Clarke’s conduct which arose following an announcement by the British Academy of Film, Television and the Arts (“BAFTA”) on 29 March 2021 that it intended to make an honorary award to Mr Clarke for Outstanding British Contribution to Cinema. Mr Clarke was given the award at the BAFTA Television Awards on 10 April 2021.

On 29 April 2021, The Guardian published certain findings of its investigation in an article titled “’Sexual predator’: actor Noel Clarke accused of groping, harassment and bullying by 20 women” (the “First Article”).

BAFTA suspended Mr Clarke’s membership and the award shortly after publication of the First Article on the evening of 29 April 2021.

On 29 April 2022, Mr Clarke issued a claim against The Guardian for defamation and breaches of data protection law in relation to eight publications, comprising the First Article, six further articles, and a podcast, which had been published between 30 April 2021 and 28 March 2022 (the “Articles”).

In the libel claim, The Guardian relied on defences of truth (s. 2(1) Defamation Act 2013) and publication on a matter of public interest (s. 4(1) of the 2013 Act).

On 26 October 2023 Johnson J determined as a preliminary issue that the single natural and ordinary meaning of the First Article was that:

“There are strong grounds to believe that the claimant is a serial abuser of women, that he has, over 15 years, used his power to prey on and harass and sometimes bully female colleagues, that he has engaged in unwanted sexual contact, kissing, touching or groping, sexually inappropriate behaviour and comments, and professional misconduct, taking and sharing explicit pictures and videos without consent, including secretly filming a young actor’s naked audition.”

The meanings of the second to seventh articles were also determined at a high Chase Level 2 – “strong grounds to believe” – that relevant conduct cited in those articles had taken place, variously including sexual harassment, verbal abuse, bullying, unwanted touching or groping, and professional misconduct. In the fourth article, such conduct included wrongly encouraging students to remove their clothes during improvisation workshops. The eighth article was determined to bear a Chase Level 3 meaning, namely that there were grounds to investigate allegations of groping, harassment and bullying.

At the start of the six-week trial in March 2025, the claimant agreed that the meanings of the personal data were the same as the natural and ordinary meanings of the words complained of in the libel action, as determined by Johnson J. In the final week of trial, the claimant confirmed that he did not seek a ruling on the data protection claim, leaving only the defamation claim to be determined.

Serious harm

The Guardian admitted that the First Article caused or was likely to cause serious harm to Mr Clarke’s reputation. The claimant submitted that there was no requirement to prove that each individual publication caused serious harm and “rolled up” the alleged effects of all of the Articles.  The court rejected this position, finding that the test of serious harm must be applied to each article individually and not cumulatively.[2] Steyn J found that the claimant had not properly pleaded the facts and matters relied on to satisfy the serious harm test in s.1 of the 2013 Act in respect of the second to eighth Articles, or adduced evidence of the harm attributable to each of them. Accordingly, serious harm was not proven in respect of those seven Articles.

Case on truth

The court therefore focused on determination of the substantial truth of the single determined meaning of the First Article. The imputation of the First Article was general, alleging a pattern of behaviour, and so it was open to The Guardian to rely on evidence of matters not mentioned in the First Article to the extent such matters occurred by the time of publication.

To determine the substantial truth of the imputation, the court noted that it would require more than a single instance of misconduct and that it would be careful to avoid a presumption that numerous allegations would lend credibility to a kernel of truth. The burden remained on the defendant to adduce convincing evidence of the conduct relied on.

The Guardian served a total of 29 witness statements in support of its case on truth. It called 26 witnesses to give oral evidence, of whom 24 gave evidence in person and a further two gave evidence by video link. Witness statements of two further primary complainants, both the subjects of reporting restriction orders, were served as hearsay evidence, as well as that of a further corroborative witness.

The court heard live evidence from the claimant and a further eight witnesses on his behalf. Six further witnesses for the claimant did not attend trial. Hearsay notices for five of the claimant’s witnesses were served on day 17 of the trial, meaning The Guardian did not have the opportunity to seek summonses. While admissible, the majority of such evidence was not given weight and the court noted that reasons given for non-attendance in some cases were unconvincing. A final witness for the claimant did not respond to a witness summons. The judge inferred, on the basis of evidence in the case, that key elements of this witness’s evidence were false.

The court referred to phone calls Mr Clarke and his business partner had made in 2020 and 2021 to apologise for his behaviour towards certain women, as well as his public statement following publication of the First Article which expressed some acknowledgment and remorse. Mr Clarke’s position at trial was in contrast: “almost entirely one of robust denial and counter-allegations”.[3] This case included the allegation that almost all of The Guardian’s 29 witnesses to the truth defence were lying at least in part. A small number were said to have exaggerated or embellished their accounts. A further rationale was set out in an application on 8 January 2025 to amend the claim to plead unlawful means conspiracy to defame by six proposed co-defendants (together with 15 others) – three of whom were proposed trial witnesses for the defendant, including The Guardian’s Head of Investigations personally – as well as to increase the claim for special damages to over £70 million. The application to amend was adjourned until after the trial to avoid prejudice to witness participation at trial.

Whilst accepting some of Mr Clarke’s evidence, the court found overall that he was not a credible or reliable witness. Steyn J noted a general pattern of admission only of that which was established by documentary evidence and to the minimum extent shown. The judge stated that this strategy had caught out the claimant when documents were newly disclosed or added to the trial bundle, and that he had invented a baseless allegation of forgery or falsification in the face of incontrovertible evidence.

Evidence from The Guardian’s truth witnesses related to conduct spanning over 14 years. Witnesses included members of film and television production crew, actors, producers, a former producer working for Mr Clarke’s production company, and a Doctor Who fan.

In assessing the evidence, the court found that Mr Clarke had a clear motive to lie, noting the draft amendment of the special damages claim and the loss of his career. In contrast, Steyn J found, it “inherently implausible” that more than 20 witnesses with no stake in the claim would have attended court to lie.[4] Following detailed assessment of the evidence, the judge also found no evidence of conspiracy.

In conclusion, the judge found the meaning of the First Article to be more than sufficiently evidenced as true, The Guardian having established evidence of Mr Clarke preying on and harassing 14 women; bullying five women; subjecting seven women to unwanted sexual contact, kissing, touching or groping; and subjecting 15 women to sexually inappropriate behaviour and comments; professional misconduct in all of those foregoing cases; and finally the covert filming of nudity in auditions as well as the showing of explicit photographs without consent. In respect of the fourth article, the truth was established that Mr Clarke had encouraged students to remove their clothing during improvisation workshops.

Case on public interest

The Guardian’s pleaded case was that the First Article formed part of a statement on matters of public interest including the use by a successful male public figure in the film and television industry of his power and status to subject women in the industry to sexual harassment and abuse and other misconduct; the fact of BAFTA’s decision to make its award to the claimant after receiving allegations of such conduct; and the failure of the industry to prevent such conduct and protect women in the industry who might be preyed on in this way. The public interest subject matter was not admitted by the claimant. The judge heard evidence from, among others, editor-in-chief Katharine Viner, that the article spoke to the specific ways in which imbalances of power and influence were serially abused, and the intersection with other public interest subjects of workplace culture, misconduct and accountability. The court found that the First Article was on the matters of public interest identified by The Guardian.

The Guardian’s editorial witnesses gave further evidence of the process by which they made the decision to publish the First Article, explaining the process of investigation and the consideration of two substantial public interest memoranda which set out the basis and reasons under consideration prior to publication. The memoranda recorded the process of corroboration of accounts of a large number of women; the invitations to Mr Clarke for comment and his responses; and the further corroborative work undertaken in response to his comments. Steyn J found that Ms Viner, who made the decision to publish, undoubtedly believed publication of the First Article was in the public interest.

As to the reasonableness of the defendant’s belief in the public interest in publication, the claimant advanced arguments that the reporters had investigated with an agenda and bias, engaged with a malicious email campaign and that they had sought to publish allegations that they could not substantiate (the “hostility issue” and the “contamination issue”). Contrary to the claimant’s case, the court found these allegations unfounded and the reporters to have been honest and reliable witnesses. In relation to the “verification issue”, the court found that the claimant’s granular criticisms of the verification process – which had largely involved the obtaining of corroborative evidence of the complainants’ accounts – had “little in them”.[5]

As to the right to reply, Steyn J concluded that an initial period for reply of around 29 hours and ultimately over three weekdays was not unreasonable in the circumstances. The matters were all within the claimant’s direct knowledge and The Guardian had given evidence that he had been aware of the nature of the allegations and the investigation for some weeks. The judge found The Guardian had held a reasonable concern, in the light of the claimant’s contacting of sources in prior weeks and months, that he might use the information in the right to reply email to apply further pressure on them to retract their accounts. In the event, Mr Clarke was able to provide two detailed responses, as well as a statement for publication and was not prejudiced by the time given for reply. The judge also found in favour of The Guardian in relation to the claimant’s case that key documents had been deleted, and in doing so referred to the extensive evidence in disclosure and the absence of basis for inferring any improper deletion. Finally, the court agreed with Ms Viner that the presentation and tone of the First Article was accurate, measured and not exaggerated or sensationalised. Steyn J concluded that Ms Viner’s belief in the public interest in publication, along with all of The Guardian’s editorial witnesses and reporters, was “undoubtedly reasonable”.[6]

This case provides a wide-ranging model of the ways in which the court conducts an analysis of evidence in the context of “general” charges of conduct of a defamatory nature. Perhaps most significantly, the case reflects the range of knowledge and procedural tools available to judges to help facilitate the passage to trial of a large cohort of non-party witnesses on issues of misconduct and sexual impropriety. Importantly in this case, prospective witnesses were granted interim anonymity upon filing of the defence, a position later reinforced by a further court order when challenged by the claimant. Although the appropriate duration of such orders remains fact-dependent, they remain important to enable the tolerance of potentially long pre-trial periods for non-party complainants of intensely private and sensitive matters. Shortly before trial, the value of such witness evidence was recognised in the refusal of the trial judge to adjourn the trial to allow for late amendment and joinder. At the same time, a limited number of orders were granted for reporting restrictions and special measures in the cases of vulnerable witnesses. At trial, The Guardian was held to be “very substantially the successful party” in its application to strike out parts of the witness statements on the claimant’s behalf for inadmissibility, including on grounds of comprising prejudicial attacks on The Guardian’s witnesses. In the event, elements of 14 witness statements in Mr Clarke’s case were struck out, reducing concerns for witnesses of potentially irrelevant and improper cross-examination. Finally, it was notable that, in the light of sufficient supporting evidence at trial, the hearsay evidence of sexual assault and harassment by two respective primary complainants was given meaningful weight, as well as that of a male observer of misconduct against a female colleague who did not participate in the case.

In the light of a number of cases of defamation claims brought in recent years by alleged perpetrators of sexual abuse or misconduct, the sustained engagement of a large group of witnesses in a “high” Chase Level 2 case may give pause to future claimants who might be tempted to gamble on non-party complainants not “turning up”.

The judgment also provides a rare success for a major publisher under s.4 of the 2013 Act. Steyn J’s approach reinforces the ongoing relevance of the Reynolds principles,[7] and provides an instructive model on the interaction between evidence in truth and public interest cases where there is overlap but equally a distinct body of content to be assessed in the publication. The Guardian’s intentional documentation of its public interest assessment was important to demonstrate the contemporaneous beliefs that were later evidenced at trial by witnesses across the Articles, from the reporters to the editor-in-chief.

References

[1] Noel Anthony Clarke v Guardian News and Media Limited [2025] EWHC 2193 (KB).

[2] Banks v Cadwalladr [2022] EWHC 1417 (QB), [2022] 1 WLR 5236, [51(iii)]; Sube v News Group Newspapers Ltd [2018] EWHC 1961 (QB).

[3] Noel Anthony Clarke v Guardian News and Media Limited at [121].

[4] ibid [129].

[5] ibid [977].

[6] Ibid [1022].

[7] Reynolds v Times Newspapers Limited [2001] 2 AC 127 per Lord Nicholls at [205A-D].