The multimillionaire Brexit backer Arron Banks has been granted permission to appeal against the judge’s decision in his unsuccessful libel action against the Observer and Guardian journalist Carole Cadwalladr.
Banks, who funded the pro-Brexit Leave.EU campaign group, raised five grounds on which he said Mrs Justice Steyn had made a wrong decision in her judgment relating to comments Cadwalladr made about him in a Ted talk and a tweet, both in 2019.
At a hearing at the high court on Friday, Steyn rejected four of the grounds but granted permission to appeal on one, which she said had a “real prospect of success”.
In her judgment handed down last week, Steyn ruled that the threshold for serious harm had only been met in the Ted talk, but that Cadwalladr initially had successfully established a public interest defence under section 4 of the Defamation Act.
Steyn said the defence fell away when the Electoral Commission found no evidence of law-breaking by Banks with respect to donations, but by that time – 29 April 2020 – the court was not satisfied that the continuing publication of the Ted talk caused or was likely to cause serious harm to his reputation.
The successful ground for permission to appeal related to whether in law the court was correct to say the serious harm test needed to be determined again from the time of the commission’s statement.
In written submissions, Banks’s barrister Sara Mansoori QC said the test of serious harm in the Defamation Act “only falls for determination once, from the date of the original publication. The claimant succeeded in discharging the burden of establishing that the publication complained of had caused and was likely to cause serious harm to his reputation. At that point it was for the defendant to demonstrate that she had a defence to the original publication and/or its continuing publication.”
Allowing permission to appeal, Steyn said it was an “issue of law that hasn’t been determined previously”. She rejected the other four grounds on the basis that they related to findings of fact, which very rarely result in the green light being given for an appeal.
For Cadwalladr, Gavin Millar QC argued that the judge was right to apply the serious harm test afresh from April 2020, but accepted that it was an issue of law.
Mansoori said Banks would consider whether to apply directly to the court of appeal with respect to the grounds that were rejected by Steyn.