Mike Sivier’s fight against a libel claim by Rachel Riley & Tracy-Ann Oberman – update

Joy for Mike as he wins libel appeal against Rachel Riley

14th May 2021

The Court of Appeal has handed down its judgment on my appeal against the striking-out of my “public interest” defence against Rachel Riley’s libel claim against me – and I have won.

You may recall that I appealed after a High Court judge struck out my defence without testing it in any meaningful way. Riley’s legal team responded to my appeal with an entirely new set of arguments which the Court of Appeal ruled were not only impermissible – they should not have been introduced at appeal – but were also wrong.

My article, over which Riley launched her libel case against me, alleged that she was a hypocrite because she complained about social media abuse against her, while her own tweets had led to abuse and threats against a teenage girl with mental health issues.

The judgment by Lord Justice Warby (and agreed by Lord Justice Henderson and Dame Victoria Sharp, President of the Queen’s Bench Division of the High Court), included some very sharp comments [boldings mine], and let’s start with the big one:

“In my judgment, it is plainly arguable, at the very least, that the Article was about matters of public interest. Indeed, it seems to me to be barely arguable that it was not.”

This statement alone – it seems to me – will make it very difficult for Riley to prove that my article was not in the public interest when the case finally comes to trial.

Lord Justice Warby stated:

“[Two] of the grounds relied on in the Respondent’s Notice are entirely new points. So too is the additional contention that we should reject Mr Sivier’s pleaded case that he believed publication to be in the public interest. I would decline Mr Stables’ [Rachel Riley’s barrister] invitation to uphold the Judge’s decision on any of these additional or alternative grounds. These are not just points on which the Judge did not rely. None of them were argued before the Judge, in any form. We do not usually allow entirely new points to be taken on appeal. It is often procedurally unfair to do so, and normally wrong because appeals are by way of review not re-hearing. Ordinarily the place for arguments to be given their first run-out is the court of first instance. Any appeal would then be a first appeal. For those reasons I would be averse to upholding the Judge’s decision on any of these additional or alternative bases. But I would also reject these points on their merits. The Defence pleads all three of the essential ingredients of the public interest defence. Although it is imperfect in some respects it is not so deficient as to justify its summary striking out on any of these grounds.”

On the imperfections of my defence: this was a strike-out application, for which legal teams are discouraged from providing every aspect of their evidence in meticulous detail. The fact that my team have been criticised because they didn’t provide enough suggests that this is a matter for debate among those who work in the court system.

Lord Justice Warby continued:

“A major theme of the Article was the charge of hypocrisy. Mr Sivier was contrasting what Ms Riley had said to millions via the news media (Channel 4 News, The Times, and The Guardian) with her own public behaviour in front of hundreds of thousands on Twitter. Mr Sivier was suggesting that her public statements deprecating online abuse were at odds with her own conduct.”

He said:

“As for Mr Sivier’s pleaded contention that he believed that publication was in the public interest, I am not persuaded that we should take the exceptional course of rejecting it on the papers. It is a rare case in which it is possible to find, on an interim application, that a party cannot have held a state of mind which they have asserted. The Court will be very cautious before rejecting such an assertion without hearing or even reading evidence on the point. Particular caution is required in this Court, when there is no first instance decision on the issue, and the reason for that is that the Court of first instance was not invited to make such a decision.”

And he concluded:

“The appropriate time and place for an evaluation of these issues is at a trial.”

The judgment as a whole appears to be highly critical of Riley’s Counsel, Mr Stables. It also points out errors by the High Court judge, Mrs Justice Collins Rice.

So, you may ask: what’s next?

The simple answer is: the trial (at long last).

My legal team and I will have to do a bit of work to ensure that the areas in which the Court of Appeal found my defence lacking are strengthened; I do not expect this to be particularly difficult.

I am also – again – calling for donations. While there is likely to be a costs order against Riley for the money I had to spend on my appeal, it is true that she won several aspects of her strike-out application, and it is likely that those amounts will cancel each other out – so I cannot rely on receiving a cheque from her to help me carry on, pleasant though such an outcome would be.

After more than two years of this, I’m sure you all know the drill:

Please – and only if you can afford it:

Consider making a donation yourself, via the CrowdJustice page.

Email your friends, asking them to pledge to the CrowdJustice site.

Post a link to Facebook, asking readers to pledge.

On Twitter, tweet in support, quoting the address of the appeal.

I could not have taken the case this far without your help. You have been utterly invaluable and I cannot overstress my gratitude.

I’m seeing a huge amount of congratulations for me on Twitter and it is a joy to behold – but I would not be getting any of it without you.

Now let’s see this through to the end. A job part-done isn’t done at all, so let’s get on and win this at trial!