Last week saw judgment handed down in the libel claim brought by schoolboy Jamal Hijazi against Stephen Yaxley-Lennon, who is widely known as Tommy Robinson, the right-wing political activist.
The case was brought by Syrian-born Mr Hijazi as a result of Yaxley-Lennon publishing two videos online. A video showing Mr Hijazi being physically assaulted in his school playground went viral in October 2018, and prompted Yaxley-Lennon to publish his own videos online, in which he claimed that Mr Hijazi “was not innocent and he violently attacks young English girls in his school”.
As a result of the videos, Mr Hijazi brought libel proceedings against Yaxley-Lennon, which he attempted to defend on the basis that the allegations he made against Mr Hijazi were substantially true. Yaxley-Lennon represented himself during the trial, which took place in April, and alleged that he had “uncovered dozens of accounts of aggressive, abusive and deceitful behaviour” by Mr Hijazi.
However, the truth defence failed and Mr Justice Nicklin found in the schoolboy’s favour, awarding him £100,000 in libel damages.
It is unusual to see a libel claim being defended purely on the basis that the allegations in question are substantially true, let alone two within a year. Last year, of course, we saw the publishers of The Sun fend off Johnny Depp’s libel claim with the truth defence.
Truth is a notoriously difficult defence to use successfully in a libel claim, with the burden being on the defendant to prove the substantial truth of the allegations, to the civil burden of proof – on the balance of probabilities. It is usually very difficult for publishers to gather enough evidence to be able to do this.
It is therefore a brave decision to publish allegations knowing that truth would be your only defence, and doing so should not be done without being aware of the legal risk involved.
It is often good practice to also ensure you have a solid public interest defence. As we know from the recent judgment in Lachaux (which my colleague Tony Jaffa wrote about recently), ensuring you have approached the subject for comment and keeping a thorough, contemporaneous, accurate evidence trail of all contacts and decision-making processes, is fundamental to a successful public interest defence.
Coming back to Yaxley-Lennon, he now faces a damages bill of £100,000, and although he was representing himself, he faces a substantial legal costs bill for the claimant’s legal costs which could run into a six-figure sum on its own.
So, it has been a costly case for Yaxley-Lennon.
Does this size of award represent a new benchmark for libel awards, which now tip over the six-figure mark? It is too early to tell, but there’s no doubt that the allegations made by Yaxley-Lennon were very serious and widely published. It is also the case that unsuccessfully pleading a truth defence can be seen as an aggravating factor which results in larger damages awards.
So, the message is clear – approach the truth defence with extreme caution and lots of evidence.