Noel Clarke v The Guardian: Trial of misconduct allegations due to commence in March
Actor and producer, Noel Clarke, is suing the publisher of The Guardian in a defamation and data protection claim, which concerns eight articles published in 2021 and 2022 and following The Guardian’s reporting of multiple claims of misconduct against him. The allegations include complaints of unwanted touching or groping, sexually inappropriate behaviour and comments on set, and the taking and sharing of sexually explicit pictures and videos without consent. Mr Clarke has denied any sexual misconduct or criminal wrongdoing.
On Monday 20 January, the High Court held a pre-trial review (“PTR”) in Mr Clarke’s legal action against Guardian News and Media Limited (“GNM”), and ahead of a trial due to start at the beginning of March 2025.
We take an in depth look at the case so far, what each side needs to determine in order to achieve a successful outcome and evaluate the risks of a trial in respect of reputation and cost.
The proceedings
Mr Clarke’s claim against GNM seeks damages, including aggravated and special damages, in libel and breach of the Data Protection Act. The parties expect to call a total of 45 witnesses to give evidence in the trial. GNM intends to call over 30 witnesses, including journalists and editorial staff at The Guardian, witnesses to Mr Clarke’s alleged conduct and witnesses who had made the disputed allegations.
Determination of defamatory meanings
In November 2023, Mr Justice Johnson gave a substantive judgment on preliminary issues in the claim. Such hearings are now commonplace in defamation claims and held at an early stage of the proceedings before any evidence is heard.
In summary, the key findings were:
- The statements complained of are defamatory of Mr Clarke at common law.
- In each case, the statement complained of amounts to a statement of fact, rather than any expressions of opinion.
- The Court rejected Mr Clarke’s argument that the articles meant he was guilty of the misconduct alleged. Instead, the Court found defamatory meanings in the articles that there were strong grounds to believe that Mr Clarke had misconducted himself as alleged and, in the case of the first article, that there were strong grounds to believe he was a serious sexual predator.
- In total, seven of the articles were found to mean “there are strong grounds to believe that the claimant is guilty of various forms of sexual harassment” with the eighth meaning “grounds to investigate”.
The Court’s findings did not determine if Mr Clarke’s claim should succeed or whether he is guilty of the conduct alleged by GNM. The next stage in the proceedings was for GNM to file its Defence, which took place after the November 2023 judgment. In March 2024, it was reported that GNM intended to defend the articles as true and published on a matter of public interest.
Pre-trial developments
Before this case reaches trial, in January 2025 the Court heard several interim applications for which various judgments have since been made.
Six witnesses are the subject of anonymity orders and their evidence at trial will be subject to reporting restrictions following a decision on 20 January 2025.
In the same judgment, Mr Clarke’s applications to amend his claim to:
- Add a new cause of action in unlawful means conspiracy;
- Increase the special damages claim to over £70 million; and
- Add new defendant
was adjourned until after resolution of the trial. This means the trial will now only determine GNM’s liability. Any question of damages and/or other relief will be determined later.
On 29 January 2025 and following the PTR, the Court gave judgment in Mr Clarke’s application to strike out GNM’s Defence in the libel claim (“strike out application”) and also, judgment in his application to cross-examine one of GNM’s witnesses during the strike-out hearing (“cross-examination application”). The witness was Paul Lewis, GNM's Head of Investigations, who was the principal editor supervising the main reporters, Sirin Stewart (née Kale) and Lucy Osborne, in respect of the journalism that is the subject of Mr Clarke’s claims.
Regarding the claimant’s cross-examination application, the Court observed that granting permission for oral interrogation of an opposing party before trial is an exceptional measure, but this was very far from the type of exceptional case. Accordingly, the Court determined it was unfair and unjust to allow cross-examination of one of GNM’s witnesses prior to trial. The Court was unpersuaded cross-examination of Mr. Lewis would materially assist on the key question of whether a fair trial is possible and decided Mr Clarke can make out his strike out application on the written evidence, in which case cross-examination is unnecessary, or he cannot, in which case the matter will proceed to trial.
Mr Clarke’s strike out application argued GNM had perverted the course of justice by fabricating and deleting evidence. The material in question had been deleted prior to Mr Clarke commencing proceedings and over a year before he first gave notice of his intended claim. GNM described the argument as “utterly hopeless” and argued there was no evidence to support such allegations. The Court agreed the fabrication allegation had “no foundation” and rejected the contention GNM had perverted or attempted to pervert the course of justice; accordingly, Mr Clarke’s strike-out application was rejected. The Court noted some documents were deleted before Mr Clarke commenced legal proceedings and over a year before a letter before claim was sent to GNM; such deletion was not in breach of any rule or duty to preserve document and in any event, it neither had the tendency to pervert, nor was it intended to pervert the course of justice. The Court also found the strike out application independently failed on the ground that the deletion of such evidence, as has occurred, does not render a fair trial impossible.
The rationale was because GNM’s defences primarily depend on the evidence from the numerous witnesses that the Court will hear at trial - for the Truth defence - and the thousands of documents, as well as substantial witness statements - for the Public Interest defence.
Forthcoming trial
If the trial does take place as expected, there are three key issues that will be considered to determine which party succeeds.
- Serious harm
In defamation law, damage is presumed in Mr Clarke’s favour, but he must establish the articles have caused serious harm to his reputation. Serious harm concerns the consequences of the articles and at trial the Court will consider (1) the inherent tendency of the words as well as (2) the actual impact of such words to those to whom the articles published.
Mr Clarke is not required to prove the allegations against him are false; once serious harm is established, the burden of proof falls on GNM to justify the allegations. There has been limited reporting about Mr Clarke’s data protection claim, which suggests his defamation claim will be the focus of his action.
In support of his case on serious harm, he will likely address the adverse impact on his media career. After the first set of articles were published in April 2021, the British Academy of Film and Television Arts (BAFTA) suspended a lifetime achievement it had given to Mr Clarke the previous week. ITV declined to broadcast the final episode of Viewpoint, a television series Mr Clarke was starring in. It has been reported that Mr Clarke’s case also focuses on his loss of work, ongoing productions in development and also his struggle to secure work since April 2021. Mr Clarke also gave a newspaper interview in July 2023, where he addressed contemplating taking his own life.
To establish serious harm to his reputation, Mr Clarke will need to prove the articles had a direct contribution to his loss of work and industry blacklisting. If Mr Clarke succeeds on serious harm, GNM can still succeed if it is able to prove its defence. As GNM advances two defences in truth and public interest, it would need to succeed in its Truth defence to defeat the claim. A partial success in its Public Interest defence may not be enough.
- Truth defence
GNM will have a ‘complete’ defence if it can show the allegations against Mr Clarke are ‘substantially true’; it is not necessary for GNM to demonstrate everything said was true. Given the meanings of the articles decided by the Court in November 2023, the imputation against Mr Clarke is less than guilt and instead strong grounds for suspicion or (for one meaning) grounds to investigate. Accordingly, GNM will need to prove some conduct on Mr Clarke’s part that (when objectively regarded) gave rise to the grounds for suspicion or investigation.
GNM is calling nearly 30 witnesses to attend trial, including women who made the disputed allegations. The witnesses will be subject to cross-examination of their evidence by Mr Clarke’s legal team before a High Court judge, who will have to decide on the balance of probabilities whether the allegations, in their natural and ordinary meaning, were substantially true. In a civil trial such as this, the burden of proof is on the balance of probabilities unlike a criminal trial (given some of the allegations made) where the burden of proof is much higher and beyond reasonable doubt.
- Public Interest defence
GNM’s Public Interest defence offers a further opportunity to justify its reporting, particularly if it is unable to succeed with its Truth defence. A Public Interest defence both emphasises and recognises the role of the media in a democratic society. The key principles are whether the articles were or formed part of a statement on a matter of public interest and whether GNM had a reasonable belief that publishing its investigation was in the public interest. GNM has to establish both limbs for the defence to succeed and further aspects that may be considered are set out below:
- A crucial factor is whether GNM demonstrates it acted responsibly and conducted due diligence to ensure a reasonable belief that publishing the articles was in the public interest. Accordingly, GNM’s conduct will be considered, which explains why six of the witnesses include senior editorial staff at The Guardian. Their evidence will likely address the research and investigation of Mr Clarke, including any contact they had with Mr Clarke (or his representatives) to obtain his position on the allegations before publishing each of the eight articles. Conducting such pre-publication enquiries and checks will be relevant to establishing GNM’s reasonable belief.
- The Court will have regard to all the circumstances of the case to determine if a Public Interest defence is established. This will include the reporting in March 2022 (by The Guardian) that the Metropolitan Police decided not to proceed with a criminal investigation into Mr Clarke and the alleged sexual offences. The Court may consider how the Police’s decision not to proceed affects The Guardian’s ongoing publication of these specific allegations.
- The Court must make such allowance for editorial judgement as it considers appropriate, which will be relevant given GNM is a newspaper publisher. Journalistic standards will also be a factor. The Court has confirmed as recently as 2021 that media organisations defending libel proceedings on a Public Interest defence should generally be able establish their public interest-related beliefs and the rationale for those beliefs, by retaining contemporaneous notes and/or keeping records of decisions in relation to their thought-processes at the time of publication.
Commentary
The combination of the nature of allegations, the fact proceedings are at a very advanced stage and Mr Clarke’s failure to strike out GNM’s defences, indicates a full trial is inevitable. Settlement may still be possible in the time remaining before the trial commences and it would be surprising if no attempt had been made by either party – at least to protect their position.
Once the trial commences, neither party will be able to control the outcome or any unpredictability that occurs. Given the subject matter in issue, both parties may well feel compelled to go to trial. Mr Clarke may feel he has no choice other than to vindicate his reputation, while GNM will be compelled to defend the reporting it maintains is true and justified.
Nevertheless, there will be a significant risk, in reputation and costs, to both parties if a full trial does happen. Libel trials are rare now as most disputes settle before going to court. One reason is the public nature of a trial, and the risk that a party may end up doing more harm to their reputation by having their conduct and history discussed in a public forum. Both the identities of the parties and the nature of the dispute will likely attract daily press coverage. In addition, the losing party will be ordered to pay the winner’s costs, which could be substantial (and particularly for GNM if it is also ordered to pay damages).
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