High Court: Media accused barrister of making death threats

Hewson: Libel claim

UPDATE: On 24 May 2019, Mailonline published an apology to Barbara Hewson which stated that the allegations against her were untrue. 

Barrister Barbara Hewson was accused by The Times and MailOnline of making death threats to a law student and subjecting him to “repeated acts of harassment and online bullying”, the High Court has held.

Mr Justice Nicklin said his ruling was the first time the court had determined meaning in a libel case as a preliminary issue on paper, rather than by an oral hearing.

The articles in 2017 came in the wake of police issuing Ms Hewson with a prevention of harassment letter (PHL) under the Protection from Harassment Act 1997.

This followed a complaint from Sarah Phillimore, a family barrister based in Bristol, about comments made by Ms Hewson on social media.

A judicial review brought by Ms Hewson against the police decision failed this time last year.

The Times article in April 2017, which was then cited the same day in an article on MailOnline, concerned law student Mehul Desai, who had apparently expressed support for Ms Phillimore.

Delivering judgment in Hewson v Times Newspapers [2019] EWHC 650 (QB), Nicklin J said the meaning of The Times article was that Ms Hewson was “guilty of repeated acts of harassment and online bullying” including “making death threats to Mehul Desai and subjecting him to online abuse and persistent nuisance phone calls that caused him to be frightened, alarmed, distressed and anxious”.

The article accused Ms Hewson of “sending Mr Desai pictures that he found distressing of his home address and his daughter’s head and details of his ex-partner’s address”.

She was also accused of “repeatedly directing abusive language at Sarah Phillimore online over a number of months, that was both serious and frightening”.

Nicklin J said the meaning of the MailOnline article was the same as The Times article, with one non-material difference on the third limb of the meaning.

Counsel for The Times argued that its article did not “adopt or endorse” the allegations made by Mr Desai and there were “grounds to investigate” whether the claimant had committed the relevant acts.

He said the article made clear that the PHL warning letter issued in relation to Ms Phillimore had no legal standing and there had been no finding against Ms Hewson.

Counsel for Associated Newspapers, owner of MailOnline, said the article had a “broader focus” than Mr Desai’s complaints, which the article made clear were advanced in the context of a 22-page complaint to the Bar Standards Board.

“A reasonable reader is well-able to distinguish between a report about uncorroborated allegations which seek to initiate an investigation and an article which makes or refers to categorical findings of fact regarding an individual’s conduct.”

Nicklin J rejected an argument from the defendants that this was a “bane and antidote” case, where an allegation made in one part of a publication but qualified or corrected in another, describing it instead as “practically all bane and no antidote”.

He said there was “no real mitigating effect in the context of either article” and “nothing of any substance for the reader to put into the balance against the clear statements from Mr Desai and Ms Phillimore of the claimant’s wrongdoing”.

Nicklin J added that the case was a “paradigm example” of the repetition rule, which prevents the court from “discounting meaning solely on the basis that what is reported are the allegations of Mr Desai”.

The judge said concerns about open justice arising from dealing with the hearing on the papers could be overcome by the case being listed in open court for judgment to be handed down, and copies of all the written submissions being available at the hand-down.

“In that way, the court’s decision, and the parties’ submissions that led to it, are transparent and open to full public scrutiny.

“Indeed, it is arguable that written judgments (because of their wider availability through services like BAILII) are more effective at promoting open justice than the judge giving an ex tempore judgment, perhaps in a court room where there are present no members of the public or media”.

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