Kaschke v Gray and Hilton - update

On Friday 9 July 2010, the bloggers John Gray and Alex Hilton applied in the High Court to have the libel claim brought against them thrown out.

(My friend Robert Dougans, who of course acted for Simon Singh, is formally representing Alex Hilton, and I am one of the lawyers helping Robert Dougans. Both Robert and I are acting pro bono.)

The hearing was adjourned until Monday 12 July 2010.

The key issue before the Court is whether the Claimant's case can be thrown out as an "abuse of process".

You may recall that the Claimant's case against Dave Osler was thrown out as an abuse of process after an application was made on Dave Osler's behalf by me and Robert.

One would suppose that an application by John Gray and Alex Hilton would now be a mere formality.

After all, all John Gray did was also comment on and link to the same (now missing) blogpost by the Claimant, where she herself discussed the events in 1970s West Germany which led to her wrongful arrest and detention, in respect of which the West German government rightly paid her substantial compensation.

(And all Alex Hilton did was host John Gray's blogpost on the LabourHome site.)


However, the Claimant is now disputing various facts which were not seemingly disputed before the High Court, and so this makes it more difficult for a strike out to succeed. The usual practice, given these disputes, would be for a case to proceed to trial (or at least a further preliminary hearing) where there would be the opportunity for the Claimant to cross-examine the contested witness evidence.

But the High Court heard on Friday that an application to strike out could still be made but based now on the Claimant's own admitted publications, court pleadings, and statements in open court.

The High Court will be resume the hearing on Monday 12 July 2010, where it appears that the main issue will be whether there really is sufficient difference between what the Claimant accepts happened in the 1970s and what she says the defamatory meaning is of John Gray's blogpost.

John Gray's blogpost stated:

‘“Baader-Meinhof” Losing Candidate joins diss-Respect

"Former Baader-Meinhof suspect Johanna Kaschke, who was one of the 64 candidates hoping to be nominated as the next Labour Party MP for Bethnal Green and Bow, has resigned to join diss-Respect/SWP. I read about this first in the East End Advertiser where she was quoted as saying that the reason was over the Council's decision regarding its housing policy. I was going to run a post on why the Advertiser had failed to even consider that a reason for her defection could have been her utter failure to pick up any nominations (or I think any individual votes). A case of sour grapes" rather than a conversion while on the road to Damascus.

"However, this being Tower Hamlets the story developed Dave Osler blog "Ex-punk. Ex-Trot. Unchanged attitude problem" (definitely not a New Labour Supporter) picked up that Johanna was also a former Baader-Meinhof (Also known as the "Red Army Faction") suspect who was detained for 3 months on suspicion of being involved in terrorist activities. Baader-Meinhof was a particularly nasty Left wing terrorist gang who murdered many people in Germany mainly during the 1970's (and up to late 1990's). They were found to be partly funded and supported by the communist East German secret police, the Stasi.

"Johanna is quite open about this (and other things) on her website. It would appear that she was released without charge and that she was given compensation by the German government for wrongful imprisonment. However, she does give the impression that she was involved in fund-raising activities for the terrorists although this is unclear. To be fair, she is now firmly and openly against terrorism, Dave points out that she is a small business woman who is opposed to the minimum wage and wants more support for businesses.

"I (think) that I have met her a couple of times and she seemed quite pleasant. However, reading her "New Labour, New Britain" Parliamentary Section CV again, I now understand he declaration on it the she managed to get through life without any convictions whatsoever". I am a little concerned that she should describe her family as working class, and then state her father was a Chartered Accountant. It seems she had only been active in the Party since Feb 2007. I note that she does not appear to be a member of a trade union, so she should fit in well with diss-Respect/SWP.’


The Claimant’s pleaded meaning is that this blogpost says:

“the Claimant was once suspected by the West German authorities to be a member of Baader-Meinhof, the terrorist group that carried out bombings, robberies and murder".


However, the Court heard that the Claimant had once sought a Right of Reply from Dave Osler which had stated:

"You can write Johanna had been arrested within the national hysteria whereby the state arrested everyone meeting their suspicious criteria and threw them into jail. Johanna was one of them. In her case she was accused to be a member of a criminal gang with the aim to commit terrorist offences. However her release and subsequently compensation paid to her for wrongful arrest cleared all suspicion."


Furthermore, the Court also heard that her own Particulars of Claim contained the following statement:

"The fact is that for the avoidance of doubt that the Claimant was arrested in 1975 under suspicion to be part of a criminal gang that could use material for terrorist activities but no proof was provided for those charges."


Just before the Court adjourned, Mr Justice Stadlen said he wanted the Claimant on Monday to explain the reputational difference between:

(1) being arrested on suspicion of being a member of Baader-Meinhof, the terrorist group that carried out bombings, robberies and murder (the meaning on which she is seeking vindication by means of this claim for libel), and

(2) being accused of being a member of a criminal gang with the aim to commit terrorist offences (a statement which the Claimant herself adopts as the position).


And, if there is a reputational difference such that a claim for libel could be maintained notwithstanding her own statements, whether vindication in respect of such a difference would warrant the use of the court's scarce resources.


The case continues.


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