Introduction
The actor Noel Clarke (probably best known for his Dr who character Mickey Smith) lost his libel case against the Guardian last week, after Mrs Justice Steyn found it was substantially true that he had acted wholly inappropriately towards numerous women, whilst filming in numerous productions. In the interests of modesty, I won’t repeat some of the grotesque things he’s done on this blog – but the Judgement certainly raises eyebrows to say the least!
The Guardian wrote a piece (article here), which was titled “‘Sexual predator’: actor Noel Clarke accused of groping, harassment and bullying by 20 women”, and went into a lot of the detail.
The Trial
The Trial itself was a split trial of Liability and Damages.
In plain English, this means that there was an initial trial to decide if The Guardian had libeled Noel Clarke; and if that had been established – a second trial to deal with what damages he would be entitled to.
Given that the Judgement handed down on Liability went into some 224 pages and 1,023 paragraph; it is sensible to deal with damages as a separate issue. Of course, in this case, Clarke was entitled to nothing – albeit his claim was for some £70,000,000.
The trial itself heard from 22 women who were brave enough to speak out against Noel Clarke – plus various witnesses from The Guardian’s publishing department itself. For reasons I shall explain below, these women could be described as venerable, albeit not in the traditional sense.
Noel Clarke called 9 witnesses – including Clarke himself, who Steyn J found to be an unreliable witness. Other witnesses included someone who disappeared off the face of the earth; other witnesses whose statements were partially struck out; and even his own wife!
In fact, out of the 9 witnesses who provided Witness Statements for Clarke – seemingly 5 pulled out of being cross examined!
Ultimately, Mrs Justice Steyn came to the clear conclusion that evidence against Noel Clarke was so overwhelming, it had to be true. I’ve not followed much of the #MeToo campaign in America – but given some of the rather graphic detail in the Judgement, one can’t wonder if Noel Clarke could be considered the UK’s own Harvey Weinstein.
The Legal Reps
It is often the case that when legal cases come to court and go disastrously wrong (or they are totally misconceived), it becomes apparent that the losing side have had extremely poor legal advice or inexperienced legal advisers. Of course, I use Damian Carter of Weightmans as my default example – but even the in misconceived defamation case of BW Legal, they directly instructed Counsel with seemingly little defamation practice.
Seemingly this is the case here. Whilst The Guardian pulled an A-Team of Wiggin LLP led by Gavin Millar KC – Noel Clarke instructed a much lesser firm known as The Khan Partnership, who in turn instructed 3 junior barristers – seeming none of whom have been involved in complex defamation cases.
Clarke had previously instructed well-known JMW Solicitors, and re-instructed The Khan Partnership (TKP), which appears to be made of just 4 solicitors….. It would of course be wrong to speculate on the transition from JMW to TKP, as JMW are themselves alleged to have given bad advice – but TKP are hardly Carter Ruck or Irwin Mitchell.
The point to this being……if you’re going to bring a libel claim to the High Court, you may want to hire people with proper defamation experience – and not daydreamers who will tell you that you’re entitled to £70,000,000 in damages, when the Supreme Court has indicated that a maximum for a case like this is around £350,000.
Was this a SLAPP?
There are probably two elements to consider here; (1) was the claim itself a SLAPP?; and (2) did Noel Clarke behave in a way which is a SLAPP against the complainants in question?
It is probably easier to deal with Question 2 first:
The complainants of Noel Clarke were women who were generally young, and in their early to mid 20’s. They were people who in many cases had junior roles on productions, were in positions on those productions that they could be ‘replaced’, or because of Clarke’s ‘senior’ position in the productions believed making any complaint may cause harm to their own reputation, or to be more precise, careers. This could be seen as venerability, albeit not in the ‘traditional sense’.
Having trawled through the Judgement, I can see no evidence that any of the 22 women had suggested that Clarke had ever threatened them legally…. However, there are numerous examples (for example Paras §688, §762 and §787) where the women felt unable to speak up, in fear of their careers.
In reality, as Steyn J points out, the actual prospect of Clarke actually ruining those careers is unlikely, but he boasted that is what he had done to other people. So Clarke’s actions can’t be a SLAPP (as there was no ‘legal’ involved), but he is clearly a bully. Of course, if any of the complainants received threatening letters in relation to their complaints, this would be another matter entirely.
Turning to Question 1, whether the Claim itself is a SLAPP, I think the Law Society gives the best short description of what a SLAPP could be:
Unlike genuine defamation claims – which typically arise out of an attempt to protect or repair the claimant’s damaged reputation – SLAPPs go further, aiming to prevent lawful investigations and discussions about matters of public interest.
The facts here are straightforward. The Guardian spoke to over 20 women who made complaints about Noel Clarke. This was for a relatively prolonged period of time – 2004 to 2018 (around 14 years). Plainly, this was not a one off, or as some would say, during a ‘difficult time’ (not that it would be any excuse). I won’t repeat some of the graphic and rather alarming descriptions given in the Judgement – but it is sufficient to say Clarke went well beyond what was appropriate at any level.
In the circumstances, the investigation was lawful, and it was in the public interest to expose Clarke as a sexual predator.
The point at which Clarke realised his conduct had been exposed was clearly not a turning point. Paragraph 36 of the Judgement explains how he made an application to have the entirety of The Guardian’s Defence struck out (more bad legal advice) – this was refused by Steyn J, and the Permission to appeal was refused by the Court of Appeal.
My view is that the that Clarke thought he would ‘play chicken’ with The Guardian and its witnesses’ willingness to give evidence (or settle the claim), all whilst his legal advisers had dreamt up the £70M in damages, and this was all too tempting of a win/win scenario…… Of course, in reality, all of The Guardian’s 20+ witness arrived at trial to be cross-examined, where as 5 out of 9 of Clarke’s witnesses failed to show up at all.
Perhaps this is why JMW Solicitors were replaced with The Khan Partnership? Perhaps JMW realised this was a SLAPP?
However one looks at it, the bullying nature of Noel Clarke, the disrespect he plainly has for his female co-workers, the sexual predator in him, his unapologetic stance when rumbled, and resort to litigation to attempt to whitewash all this (whilst seeking stupid amounts in damages), all points to the same conclusion: this was a clear SLAPP.
Conclusion?
The Guardian undertook a careful and well-researched investigation, in which they spoke to multiple victims of Noel Clarke over a number of years. The Judgement shows that the journalists themselves were concerned about being sued – albeit that Clarke only sued the paper.
Clarke’s unrepentant response to this was to issue a high-value defamation claim, and make those victims relive their extremely unpleasant experiences in the witness box – no doubt hoping The Guardian would settle the claim on the Court steps. Clearly this approach was a SLAPP: Noel Clarke knew what was published about him was true.
Perhaps an unusual factor to this claim (or SLAPP) is that Noel Clarke is hardly a Billionaire, or indeed seemingly hardly a multi-millionaire – so for him, it was high stakes bringing a claim like this, especially now he will have to pay The Guardian’s legal costs as well as his own, which are likely to be in the millions.
In the meantime – hats off to those brave victims and The Guardian for running the story!
