The claimant, Jamal Hijazi, a Syrian refugee who recently turned 18, complained of two videos posted on Facebook by Stephen Yaxley-Lennon in November 2018.(1) Both videos showed Yaxley-Lennon, a well-known public figure on the political right (better known as Tommy Robinson), responding verbally to the dissemination via social media of a video clip showing an altercation between Hijazi and another boy at his school, "B", in which Hijazi was pushed to the floor and held down by the throat by B (the viral video). The altercation was one of a series of bullying incidents of which Hijazi was the victim.
In April 2020 Mr Justice Nicklin determined the natural and ordinary meaning of the words spoken by Yaxley-Lennon in the two videos as follows:
- first video – "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"; and
- second video – "the Claimant had, as part of a gang, participated in a violent assault on a young girl which had caused her significant injuries".
Hijazi contended that both videos were "viewed directly" over 850,000 and 100,000 times, respectively.
Yaxley-Lennon admitted that:
- he had published the videos;
- the videos defamed Hijazi at common law; and
- the publication of the videos had caused serious harm to Hijazi's reputation.
However, Yaxley-Lennon said that as Hijazi was identified only by his first name in each video, he would have been defamed only to those people who:
- had watched both videos;
- could identify Hijazi by his name; and
- would know that the comments were directed at him.
Yaxley-Lennon relied on a defence of truth. He applied for permission to amend his defence to add a defence of public interest under section 4 of the Defamation Act 2013, but that application was refused. Yaxley-Lennon's defence of truth relied on various incidents in which he alleged that Hijazi had:
- made an unprovoked attack on a fellow female pupil with a hockey stick;
- bitten someone on the head in a group attack with three others;
- persistently bullied another child;
- been verbally aggressive towards female students and teachers;
- threatened to stab B;
- stabbed a fellow pupil with a sharp-pointed object; and
- been caught in possession of a knife and screwdriver while in school.
Yaxley-Lennon contended that the alleged incidents showed that Hijazi had a propensity to use violence and was a bully. Nicklin found that they established neither claim. Some of Yaxley-Lennon's witnesses were not credible and their evidence was not corroborated. School records did not show certain incidents, which they would have done had they happened. Nicklin said that Yaxley-Lennon had failed to demonstrate that Hijazi had any propensity to behave in an aggressive or abusive manner towards girls and women and that much of the witness evidence was dishonest fabrication that fell apart under cross-examination. Further, much of Yaxley-Lennon's case depended on hearsay evidence consisting of video recordings that he had made in which he questioned various people without them knowing that they were being recorded. Overall, the defence of truth failed and judgment was entered for Hijazi.
As for damages, to determine the reputational harm caused by the publications, Nicklin considered the fact that Hijazi would not have been identifiable to every person who watched the video(s). Set against that, however, was the reality that the defamatory allegations would have inevitably spread more widely than the original publishees. Nicklin also took into account the fact that Yaxley-Lennon had not publicly withdrawn the allegations that he had made in the videos or apologised for them, maintaining throughout that they were true. In other words, there had been no mitigation.
Overall, Nicklin said that Yaxley-Lennon's allegations against Hijazi were serious and had been published widely. Yaxley-Lennon had admitted that their publication had caused serious harm to Hijazi's reputation. The consequences to Hijazi had been particularly severe. Although it was media attention on the viral video that had first propelled him into the glare of publicity, overwhelmingly that coverage had portrayed him as the victim in the viral video incident. Yaxley-Lennon's contribution had been a deliberate effort to portray Hijazi as being not an innocent victim, but a violent aggressor. Further, the language used in his videos had been calculated to inflame the situation. As was entirely predictable, Hijazi had then become the target of abuse, which had ultimately led to him and his family having to leave their home and Hijazi having to abandon his education. Yaxley-Lennon was responsible for this harm, some of the effects of which, particularly the impact on Hijazi's education, were likely to last for many years, if not a lifetime.
Nicklin said that the most significant element of the damages award was the need for vindication. He said that the award of damages should mark clearly that Yaxley-Lennon had failed to demonstrate the truth of his allegations. In fact, his evidence had fallen woefully short. He had, however, persisted with the serious allegations that he had originally made, and had even added to them during the proceedings. Hijazi had had to face them in the full glare and publicity of a High Court trial. Nicklin awarded £100,000 to:
- make clear that Yaxley-Lennon had failed in his defence of truth;
- vindicate Hijazi; and
- award Hijazi a sum in damages that represented fair compensation.
As for whether an injunction should be awarded, Nicklin noted that after Yaxley-Lennon's Facebook account was closed, he had not republished the videos or repeated the same or similar allegations. Based on the evidence at trial, Nicklin was not satisfied that Yaxley-Lennon had threatened to republish the allegations. However, in response to the draft judgment being circulated to the parties prior to it being handed down, the claimant's solicitors and counsel forwarded to Nicklin a recording posted on social media by Yaxley-Lennon just before they had received the draft judgment, in which he had referred to his intention to publish "the total evidence and proof" showing what he said Hijazi "was like" and the "reality of what he had done". In light of that recent evidence, Nicklin said that he would hear further submissions about whether an injunction should be granted and, if so, in what terms.
For further information on this topic please contact Matthew Dando at Wiggin by telephone (+44 20 7612 9612) or email ([email protected]). The Wiggin website can be accessed at www.wiggin.co.uk.
(1) Jamal Hijazi v Stephen Yaxley-Lennon  EWHC 2008 (QB) (22 July 2021). To read the judgment in full, click here.