About this case:

• Court:
  High Court
• Judge:
  Mr Justice McAlinden

The court held that Dr Jessen had used his Twitter account to repeat unfounded allegations that Ms Foster was having an affair with a staff member. The doctor had insinuated that Ms Foster was homophobic and a hypocrite. Dr Jessen’s tweet was retweeted 517 times and liked by approximately 3,500 people.

In reaching its decision, the court also rejected an application brought by Dr Jessen to enter a late appearance in the case. The court found Dr Jessen’s excuses for not appearing in the proceedings to be unconvincing and entirely incredible.

Background

In December 2019, an anonymous Twitter user posted false allegations that Ms Foster was having an affair with a staff member and that her marriage had broken down. Subsequently, on 23 December, Dr Jessen, a well-known celebrity doctor, posted the following tweet: “Rumours are bouncing around that the DUPs Arlene Foster has been busted having an affair. Isn’t she the ‘sanctity if marriage’ preaching woman? It always comes to bite them in the arse in the end. Rather satisfying for us gay boys who she made feel even shittier….”[sic].

Dr Jessen had 311,000 followers at the time. The tweet was retweet by 517 people and liked by about 3,500 people. The tweets also received a large number of comments (many misogynistic) from Twitter users. Upon being made aware of the tweet, Ms Foster decided to engage a solicitor to remove the tweet.

On 24 December, her solicitor posted on Dr Jessen’s Twitter page requesting the immediate removal of the tweet. Dr Jessen responded by retweeting the solicitor’s post with the phrase “lol”.

An official letter of claim was sent to Dr Jessen on 2 January 2020 and the offending tweet was deleted on 7 January. However, no apology was made by Dr Jessen and defamation proceedings issued against him.

No appearance was entered by Dr Jessen in the proceedings and Ms Foster therefore obtained judgment in default of appearance against him. As such, the matter proceeded to an assessment of damages by a judge. When the matter came before Mr Justice McAlinden, he heard the significant affect of the defamatory comments on Ms Foster.

In particular, she said that the allegations cut to the core of her values and that her family was the most important thing to her. She recalled having to explain the situation to her elderly mother and her older children. The tweets became significant media news items, further adding to her distress. Although her attempts to form a new Executive were not hindered by the allegations, Ms Foster received a lot of abuse online.

Ms Foster also stated that the allegations of hypocrisy (e.g. that she preached the sanctity of marriage but did not abide by it) was deeply painful for her “due to the depth and sincerity of her religious faith.” Although she accepted that she had “very traditional religious views of marriage” she denied that she was homophobic, pointing out that she was the DUP spokesperson for equality and human rights. As such, she claimed to be “acutely aware of the sensitivity of subjects such as same-sex marriage.” Further, she said that she respected that same-sex marriage was legal in the State and held no ill-will towards gay people.

Ms Foster gave evidence on 14 April 2021. On 16 April, the court received a request from Dr Jessen’s solicitors to bring an application to file a late appearance in the case. Dr Jessen claimed that he had not received any documents or correspondence in the case (apart from the writ). He claimed that he was suffering from poor mental health for a prolonged period and had moved back with his parents. As such, he claimed that he was only made aware of the hearing following widespread coverage in the media.

High Court

The High Court began by rejecting Dr Jessen’s application to file a late appearance. The court noted that mulitple items of correspondence had been sent to Dr Jessen’s home address and email by the plaintiff’s solicitor. The court was deeply unimpressed by the content and credibility of Dr Jessen’s explanations for why he claimed not to have received the correspondence.

The court considered Dr Jessen’s excuses at length. It was held that Dr Jessen had produced no cogent medical evidence that he was suffering from mental health difficulties at the time of the proceedings. Further, the court held that there were numerous inconsistencies with the defendant’s claim that he was staying with his parents and did not receive the correspondence. The court also noted that Dr Jessen had tweeted from time to time during the litigation period, and therefore rejected the submission that Dr Jessen had closed himself off from current affairs.

In sum, Dr Jessen’s accounts of why he did not receive the legal correspondence were rejected entirely by the court, who took a dim view of Dr Jessen’s truthfulness in certain aspects of his evidence. The court accepted evidence from a summons server that documentation had been delivered directly to Dr Jessen’s flat and to his concierge service. Other documents were sent to Dr Jessen’s flat by first-class post. The court said: “Irrespective of which lie he is telling, I am completely satisfied that Dr Jessen was aware of the date of the hearing set for the assessment of damages in this case and that he deliberately chose to take no steps to protect his interests in this matter. “

Assessment of damages

The court then turned to the assessment of Ms Foster’s damages in the case. The court began by outlining the well-established principles relating to the calculation of damages in defamation cases (Jones v Pollard [1996] EWCA Civ 1186; Elliot v Flanagan [2017] NI 264).

The court described Dr Jessen’s tweet as “a most serious libel and grossly defamatory.” It was also a highly prominent libel, with Dr Jessen’s tweet becoming widely publicised due to media interest and his large following. The court accepted that the libel took a heavy emotional toll on Ms Foster and caused humiliation and upset. The court noted that constituents had called Ms Foster’s offices seeking to know if the allegations were true.

The court also said that there were aggravating feature in the case, such as the lack of an apology, a late retraction of the tweet and a “woefully inadequate and misleading response” to Ms Foster’s lawyers by Dr Jessen. Finally, the court held that in order to properly vindicate Ms Foster, the award should be so high as to “convince a bystander of the baselessness of the charge.”

Conclusion

Having regard to the Green Book, the court determined that £125,000 was the appropriate level of damages in the case. The court duly granted judgment in that sum to Ms Foster and granted an order for her legal costs against the defendant.