The claimant, Jamal Hijazi, complained of two videos posted on Facebook by Stephen Yaxley-Lennon in November 2018. Both videos showed Mr Yaxley responding to the dissemination via social media of a video clip showing an altercation between the claimant and another boy, “B”, in which the claimant was pushed to the floor by B (the Viral Video).

Mr Yaxley-Lennon admitted publication of the videos, that they defamed the claimant at common law, and that their publication had caused serious harm to the claimant’s reputation. The claimant contended that the first video and second video were “viewed directly” respectively over 850,000 and 100,000 times.

In April 2020, Mr Justice Nicklin determined the natural and ordinary meaning of the two videos as:

1. the first video: “the Claimant had (1) as part of a gang, participated in a violent assault on a young girl which had caused her significant injuries; and (2) threatened to stab another child”; and
2. the second video: “the Claimant had, as part of a gang, participated in a violent assault on a young girl which had caused her significant injuries”.

Mr Yaxley-Lennon relied on a defence of truth.

In June 2020, Mr Yaxley-Lennon filed his Amended Defence, in which he:

1. amended his defence of truth to defend, as substantially true, the meanings of the two videos found by the court;
2. added some further material to the Particulars of Truth; and

• added a new defence seeking to defend the publication of the two videos as publications on a matter of public interest under s 4 of the Defamation Act 2013.

No prior indication was given by Mr Yaxley-Lennon that he intended to seek to rely upon a public interest defence. Further, it was outside a previously granted court order on permission to amend. The claimant objected to the addition of the public interest defence and to the amendments to the particulars of truth. Eventually, Mr Yaxley-Lennon applied to the court for permission to amend.

Nicklin J rejected Mr Yaxley-Lennon’s argument that the court could determine there and then that a public interest defence (if properly pleaded) would inevitably fail at trial. The public interest defence relied principally on Mr Yaxley-Lennon reasonably believing there to be a public interest in setting the record straight, through him allowing B to put forward his answer to the proposition that the Viral Video demonstrated a racially motivated attack on the claimant. The claimant’s response was that it was nothing more than a serious defamatory attack on him by Mr Yaxley-Lennon.

If this had been the only basis of opposition to the proposed amendments, Nicklin J said that he would have granted permission. Section 4 of the 2013 Act is a developing area of the law, he said, and there have been few cases in which the court has assessed the public interest defence outside the traditional context of professional journalism. The s 4 defence applies to anyone who publishes, not just journalists, and how it applies to “citizen journalists” has not yet been explored. Therefore, it was not appropriate to dismiss a public interest defence raised by a defendant on only a summary assessment of its merits.

However, Nicklin J said that the claimant’s other objections had force and that permission to amend to add a public interest defence should therefore be refused.

Virtually all of the particulars in the draft Amended Defence failed to respect the line between Mr Yaxley-Lennon’s subjective belief and the objective truth. Further, Mr Yaxley-Lennon had not properly particularised the investigations which he said he had carried out. To be relevant and admissible, the particular steps had to have taken place before publication and there was a complete absence of chronology in the particulars pleaded in the Amended Defence. In fact, the claimant had identified evidence which, at the very least, called into question whether the investigations relied upon did take place prior to publication of the videos.

Nicklin J said that on an amendment application, the burden lies on the defendant to advance a coherent pleading that discloses a defence with a real prospect of success. Mr Yaxley-Lennon had not done this and it was not for the court to separate those particulars that could be allowed, perhaps on condition of providing further information, from those that should be refused, and to “knock… the defence into shape”.

Nicklin J was also “very far from satisfied” that Mr Yaxley-Lennon had provided an adequate explanation for why he had not included a public interest defence in his original Defence and why he had not applied to add it by way of amendment a great deal sooner, rather than inserting it, without warning, into the Amended Defence. The draft Amended Defence could have been advanced in its current form when the original Defence was filed.

In Nicklin J’s judgment, Mr Yaxley-Lennon had clearly not been “open, above board and cooperative“. He had conspicuously and repeatedly failed to be candid with the claimant about his intention (which he said he had held since the original Defence was filed) to amend to add a public interest defence. If there was a proper explanation for this failure, it had not been provided. The evidence was capable of supporting a conclusion that Mr Yaxley-Lennon in fact made a conscious and deliberate tactical decision not originally to include a public interest defence, a decision (for reasons unexplained) he wanted to revisit. If that was the explanation, then, as a “tactical manoeuvre“, it came “perilously close to the old-fashioned notion of “overreaching””, Nicklin J said. At the very least, it was misguided and demonstrated a failure to be open, above board and cooperative. Most importantly, it was not adequately explained.

Nicklin J therefore refused permission to amend to add the public interest defence.

As for the amendments to the particulars of truth, Nicklin J said that they essentially sought to expand on the existing defence and no application had been made by the claimant to strike out or to dismiss the existing truth defence. As those particulars would remain, amendments that did little more than clarify the nature of the allegation being made could hardly be opposed.

More generally, applying the test for amendments, Nicklin J was satisfied that the additional particulars had a real prospect of success. There was no suggestion that they expanded the bounds of the truth defence disproportionately and should be refused on case management grounds. To the extent that the amendments added new allegations, they were discrete events all alleged to involve the claimant and could be dealt with in a Reply so that, ultimately, the court could adjudicate on them at a trial.

Accordingly, Nicklin J allowed the amendments on the particulars of truth to be made. (Jamal Hijazi v Stephen Yaxley-Lennon [2020] EWHC 3058 (QB) (16 November 2020) — to read the judgment in full, click here).