UK: Allocation of costs in Banks v Cadwalladr sets chilling precedent for public interest journalism
Reporters Without Borders (RSF) is deeply concerned that the UK Court of Appeal has ordered investigative journalist Carole Cadwalladr to pay more than £1m in court costs to businessman Arron Banks, despite a judgement ruling that her reporting was in the public interest at the time of publication.
Banks’ libel claim relates to a tweet and a sentence in a 2019 TED talk in which Cadwalladr, an RSF press freedom prize laureate, questioned his relationship with the Russian government. In February, Banks won just one of three grounds of appeal, in which he argued the TED talk stopped being covered by the public interest defence on 29 April 2020, when the Electoral Commission publicly accepted there was no evidence he had committed a criminal offence.
Despite acknowledging Cadwalladr did not control TED, the court ruled she should be liable for damages from that date onward and costs of proceedings. As a result, on 17 May, the court ordered her to pay 60% of Banks’ High Court costs and 30% of his Court of Appeal costs, a sum Banks claims will amount to more than £1m. In addition, she will need to return court costs which Banks had previously paid to her, and has paid him £35,000 in damages. Banks will not be liable to pay any of the costs of Cadwalladr’s legal team.
These exorbitant costs - ordered despite the court’s recognition that Carole Cadwalladr’s work was at the time of publication covered by a public interest defence - send a chilling message to investigative journalists everywhere. This legal process was aimed at intimidating Cadwalladr and silencing her courageous journalism, and we stand in solidarity with her and all journalists subject to such exploitative litigation.
Cadwalladr said she was hugely disappointed by the decision and that it was a chilling day for press freedom in the UK.
"This decision has huge ramifications for any news organisation or journalist who believes that the overwhelming public interest of their work will enable them to speak truth to power,” she said. “Many stories already go untold in Britain because of our repressive defamation laws. This arbitrary and punitive ruling will mean there will be many more which will never see the light of day."
RSF representatives monitored both February’s appellate hearing and the High Court trial in January 2022. In its decision of 13 June 2022, the High Court found that the TED talk was “political expression of high importance, and great public interest”, not only in the UK but worldwide - an aspect of the ruling that has not been challenged.
Though the High Court did not consider the case to be a strategic lawsuit against public participation (SLAPP), RSF and the wider UK anti-SLAPP coalition have characterised it as such, because it was aimed at isolating and intimidating Cadwalladr. Banks pursued her as an individual, rather than the media outlets which published her reporting, isolating her and exposing her to extensive legal costs which many journalists would not be able to take on.
Banks has repeatedly denied the case is vexatious and tweeted that the award of 60% of his costs was “vindication”.
The prevalence of such cases has earned London a reputation as the “libel capital of the world” and damages the UK’s record on press freedom. The UK government has committed to introducing legislation that would crack down on SLAPPs, but has yet to commit to a timeline.
The UK is ranked 26th out of 180 countries in RSF’s 2023 World Press Freedom Index.
