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23.07.21

Tommy Robinson ordered to pay £100,000 in damages to schoolboy he defamed on Facebook

On 22 July 2021, Mr Justice Nicklin handed down judgment in the Hijazi v Yaxley defamation proceedings (Yaxley-Lennon is popularly known by his pseudonym, Tommy Robinson).  The full judgment (Hijazi v Yaxley-Lennon [2021] EWHC 2008 (QB)) can be found here.

Early in the litigation Mr Yaxley-Lennon was represented by solicitors and lead Counsel.  In the early part of 2021 he took over conduct of the case himself, and in March 2021 he was made subject of a bankruptcy order.  He conducted the trial himself with the aid of a McKenzie Friend.

Background

The factual background to the defamation claim is unfortunate and concerns an unpleasant (but sadly not uncommon) school incident spiraling out of control.

In late November 2018 a video of a school bullying incident that happened on 25 October 2018 circulated widely on social media and was picked up by the websites of the major tabloids and local Yorkshire press. The video showed one boy verbally and physically assaulting another – the victim being Mr Hijazi, the Claimant in these proceedings, and a Syrian refugee. On 12 November 2018, before the video ‘went viral’, the perpetrator of the attack was permanently excluded from the school. School reports from the time noted that the incident was very much the ‘last straw’, and the decision to expel was not based solely on this incident.

Although the video itself contained no racist material, the narrative built in the press was of a racist attack, and in some places described water being squirted in Mr Hijazi’s face as “waterboarding”. Some mainstream media commentators then began quoting the perpetrator’s side of the story, and a “two-sides of the story” narrative also began circulating, with some reports clearly siding with the victim, and some with his attacker.

On 28 and 29 November 2018, Mr Yaxley-Lennon used his Facebook account to post two videos of himself giving his opinion on the incident, which suggested that some of the sympathy towards Mr Hijazi was undeserved as he had committed similar violence. Those videos were the publications for the purposes of these libel proceedings.

Meaning

Mr Justice Nicklin determined the imputations of those videos on 21 April 2020 in Hijazi v Yaxley-Lennon [2020] EWHC 934 (QB) as follows:-

First video – Imputation 1

“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”

Second video – Imputation 2

“The Claimant had, as part of a gang, participated in a violent assault on a young girl which had caused her serious injuries”

Mr Yaxley-Lennon admitted that these imputations were defamatory, and that Imputation 1 caused serious harm to Mr Hijazi.

Defence

Mr Yaxley-Lennon’s defence was that the imputations were true and relied upon various incidences of violence against fellow pupils said to be perpetrated by Mr Hijazi.

In support of the truth defence Mr Yaxley-Lennon called various classmates and schoolmates of Mr Hijazi , including several who were under 18 at the time of publication of the judgment and who were not named in it.  Between them they gave evidence as to Mr Hijazi’s propensity for violence (either generally or in relation to specific incidents), his abuse of women and young girls, and that he was a bully and not a victim of bullying.

None of them were found by Nicklin J to be reliable, and several of them were found to be lying to the Court.  Included in those held to be lying was one former schoolmate who had since embarked upon a law degree – something not lost on Nicklin J who was particularly scathing about her evidence, and questioned her motive for giving such false evidence under oath (as to which, see more below).

Mr Yaxley-Lennon also relied on some hearsay evidence gathered during interviews with various other people somehow connected with Mr Hijazi or his school. Nicklin J allowed him to rely upon some of that evidence, but ultimately attached no or very little weight to it – noting in particular that the participants did not know they were being recorded.

Nicklin J seemed to have little trouble rejecting the truth defence, going so far as to highlighting the Mr Hijazi’s school reports and incident reports that were “overwhelmingly positive”.

Damages

Having held that the truth defence failed, Mr Hijazi succeeded, and Nicklin J moved to consider the issue of damages.  The effects on Mr Hijazi were grave.  He and his family were forced to move away from Huddersfield at a critical time in his schooling (before Year 11 – his GCSE year).  Almost three years on, and his witness statement for trial set out that he is still yet to complete his GCSEs, having moved areas once again and had to wait to get a place at a college.  Psychological effects were also outlined, that resulted in a fear of identification, depression, and anxiety, and Mr Hijazi now uses a pseudonym where possible.

Nicklin J also outlined the lack of mitigation: Mr Yaxley-Lennon having maintained his position that the imputations were true all the way through trial, and the language used in the videos published by Mr Yaxley-Lennon “was calculated to inflame the situation”.  Given his persistence with the claim, the seriousness of the harm caused, and the effect on Mr Hijazi, Nicklin J awarded £100,000 in damages.

Injunctive relief and costs

The judge had been minded not to award an injunction against Mr Yaxley-Lennon on the basis that there had been no threat to republish the imputations.  However, over the weekend of 16-18 July 2021 (immediately before the scheduled handing down of the judgment) Mr Yaxley-Lennon published a recording stating that after the judgment was given he would be publishing “the total evidence and proof” of what Mr Hijazi was like and the “reality of what he had done”.  The matter was therefore been listed for a hearing on 22 July 2021, at which an injunction was granted prohibiting the Defendant repeating the allegations (or similar allegations).  Mr Yaxley-Lennon was also ordered to pay Mr Hijazi's cost of the defamation claim, which one can reasonably assume will exceed the level of damages awarded.

Comment

This case is an example to us all of the power that high profile commentators and activists have and how it can be misued: Mr Yaxley-Lennon’s dog-whistle induced children to lie to the Court.  His questioning of witnesses in the recordings that were admitted contained leading and suggestive questioning, generating the ‘evidence’ that he sought.

The judgment is interesting in that it assesses the credibility of a number of young and impressionable witnesses, something more common in the criminal or family courts.  Apart from Mr Hijazi’s evidence (which was all accepted and was all supported by the contemporaneous documents), some of the evidence of his attacker was accepted.  Beyond that, all of the evidence of the school children called by Mr Yaxley-Lennon was held to be false or unreliable and incompatible with the contemporaneous documents.

The Court’s finding  that a non-party witness had lied in evidence is notable.  Even where it is easily inferred from cross examination or inconsistencies between a witness statement and contemporaneous documents, judges often given witnesses the benefit of the doubt, and rather than finding outright dishonesty may suggest that their memories had faded with time  or that they had convinced themselves of the truth of their opinions’.  Nicklin J had this to say about two particular witnesses for Mr Yaxley-Lennon:-

" [116]...I have paused to consider why Charly Matthews and OTP would be willing to come to a High Court trial and lie for the Defendant. I cannot readily identify any explanation why they would be prepared to do so. Charly stated in evidence that she is in the first year of a law degree. Objectively, therefore, she has much to lose by giving false evidence in court proceedings. Ultimately, however, whilst identifying a motive or reason for giving false evidence can sometimes provide support for the conclusion that the evidence is untrue, it is not necessary to identify a reason. People can lie for reasons that make no sense; sometimes for no reason at all. I am quite satisfied that the evidence of both Charly Matthews and OTP about the Hockey Stick Incident is false."

It is quite possible that the lack of further comment on this subject in the judgment is a mercy bestowed on the young and impressionable witnesses in this matter, and is perhaps designed to avoid pouring fuel on the fire.  Whether this is the end of the matter or not for these witnesses remains to be seen, but generally witnesses need to be aware that lying in evidence (i.e. deliberately giving false evidence) may give rise to proceedings for contempt of court and/or a prosecution for perjury – both of which can carry a prison sentence.  This is on top of the reputational harm caused by such a finding, which may impact on an individual’s employability or cause issues if they work (or want to work) in a regulated profession.

 

Click here to find out how Brett Wilson LLP's specialist defamation solicitors can assist if you have been libelled/slandered or accused of libel/slander.


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