David Hundeyin Vs Kiki Mordi: Court Awards £95,000 Damages Against Hundeyin

Case No: KB-2023-002761
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice
Strand, London, WC2A 2LL
25/10/2024

B e f o r e :

MR JUSTICE JULIAN KNOWLES
____________________

Between:
CHARLES NORTHCOTT
Claimant
– and –

DAVID HUNDEYIN
Defendant
____________________

Kate Wilson (instructed by Patron Law) for the Claimant
The Defendant did not appear and was not represented

Hearing date: 8 October 2024
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

This judgment was handed down remotely at 10:30 on 25 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Justice Julian Knowles:

Introduction

This is a claim for libel. By an order sealed on 24 June 2024 Master Stevens entered judgment in default for the Claimant (C) under CPR Part 12 in default of an Acknowledgement of Service or Defence from the Defendant (D). She gave directions in relation to remedies, including that there should be a trial to assess damages, and also directions in relation to the remedies under ss 12 and 13 of the Defamation Act 2013 (DA 2013).

The remedies trial took place before me on 8 October 2024. The Claimant (C) was represented by Ms Wilson. D did not appear and was not represented. I decided to proceed in D’s absence for reasons I will give later. I heard submissions from Ms Wilson, and C gave evidence. He adopted his witness statement and gave some brief supplementary evidence. I reserved my judgment.

Summary of this judgment

C is a highly respected and award-winning journalist and filmmaker with the BBC. D is a well-known investigative journalist with a high public profile. Starting in 2022, and continuing, C has been the victim of a serious libel at D’s hands. D wrote an article online containing a number of wholly untrue allegations that C had used his position as the director of documentary film to obtain sexual favours from a woman involved in the production. After publication of the article, D then embarked on a public campaign intended to maximise the harm and distress it caused C. Both of these have been very considerable, and C’s career has been seriously impacted. Despite saying he would defend this case, D failed to do so and so failed to attempt to defend or justify what he had written about C.

The court awards C £95,000 damages, including aggravated damages. This is an appropriate sum to compensate C for the damage to his reputation caused by D and to vindicate his good name; and it takes appropriate account of the distress, hurt and humiliation which D’s false and defamatory publication has caused him, as well as D’s aggravating conduct.

The court also makes an order under s 12 of the Defamation Act 2013 requiring D to publish a summary of this judgment. It also makes an order under s 13, requiring the web-site operators concerned to remove the relevant part of the offending article.

Background

The Claimant

C is an investigative journalist and documentary filmmaker who is employed by the BBC. He is married. He works for BBC Africa Eye, an investigative unit within the BBC World Service, and is based in London. The unit is funded by the Foreign, Commonwealth and Development Office. He is a three-time Emmy nominee. In 2018, Forbes Magazine included him in its list of ’30 Under30′ in the Media in Europe. In 2019, C received a Peabody Award for news innovation.

The film ‘Sex for Grades’

In 2018 there was a widely reported incident where a professor at a Nigerian university was recorded offering to give a female student improved grades in return for sex. It quickly became apparent that this was not an isolated incident, but that such behaviour in Nigerian universities and elsewhere is a widespread problem. It led to C directing and co-producing a documentary programme, ‘Sex for Grades: Undercover in Nigerian and Ghanaian Universities’ (Sex for Grades). The background to the making of the film is as follows.

In May 2018, BBC Africa Eye started investigations into the subject with a view to a possible programme. C and another BBC researcher contacted numerous journalists in Africa and BBC colleagues. One of those was Ogechi Obidiebube (who is generally known as Oge), a BBC Pidgin language service employee working in the Lagos Bureau, with whom C had previously worked in 2017 and who had assisted another BBC employee with research for a proposed article on the same subject. The initial material obtained by Ms Obidiebube was promising, and C considered that she could play a major role in the emerging investigation. C’s first ‘pitch’ to the Africa Eye Editor for the proposed programme envisaged filming in Ghana, Kenya, and Nigeria and suggested three possible reporters for the final documentary, including Ms Obidiebube.

In October 2018, C secured funding for field work and engaged multiple journalists to carry out research in Nigeria and Ghana. This team comprised Ms Obidiebube and nine freelancers, including Ms Nkiru Mordi (known as Kiki). Ms Mordi had been introduced to C by Ms Obidiebube. Ms Mordi had previously worked as a radio presenter on WFM, the first and only women’s radio station operating in Nigeria. She also had personal experience of the issues under investigation. Of the 10 reporters, only one (who was neither Ms Obidiebube nor Ms Mordi) had any previous experience of such in-depth investigations. The main leads generated by the field work came from two freelancers working in Ghana, two other freelancers, one of whom was Ms Mordi, working in Nigeria, and a contact who worked for an NGO in Nigeria.

C presented the evidence to his BBC managers. Approval was given for further investigations and the BBC assigned a co-producer, Chiara Francavilla. The Executive Producers, Andy Bell and Adejuwon Soyinka, C and Ms Francavilla made a request for approval of covert filming and use of undercover reporters.

Evidence had been gathered from a substantial number of students, but anyone who spoke on camera faced the real risk of shaming and other victimisation, as had happened previously in relation to female complainants.

Once covert filming was approved by the BBC, C submitted the documentary proposal for ‘Sex for Grades’ to the Editor of BBC Africa Eye in January 2019. This proposal outlined a one-hour documentary exposing academic staff at three prestigious universities in West Africa. The pitch envisaged exposing eight staff members about whom evidence of harassment had been gathered. It further suggested that Ms Mordi would be the onscreen reporter. C and his co-producer considered Ms Mordi to be the most suitable person for the role because of: her position and prior experience as a presenter at WFM; formal risk assessments that showed that, because of her personal circumstances, she faced fewer personal risks if there were a backlash; and her direct connection to the story, having suffered sexual harassment while she was a student. The proposal was approved by Executive Producers, Mr Bell and Mr Soyinka, and the editor, BBC World Service Investigations Editor, Marc Perkins. Africa Eye commissioned the programme.

Between February and June 2019, eight women journalists worked and filmed undercover for the project posing as students. After encountering some resistance from BBC management in the Lagos Bureau to allow Ms Obidiebube, a BBC Pidgin language employee, to join the BBC Africa Eye investigative project, C’s editor managed to secure permission for her to work on the project and undercover for a total of 10 days.

All eight undercover reporters obtained footage of academic staff at a total of three universities sexually harassing them. Ms Obidiebube obtained at least six hours of footage from the University of Lagos of one lecturer sexually harassing her. Ms Mordi obtained footage of harassment by two lecturers at the University of Lagos and by two academic staff at the University of Benin.

Throughout the project, C kept in contact with the team by WhatsApp and coordinated and supervised filming. The BBC provided security and personal and psychological support to the undercover reporters.

At stages throughout the investigation and the editing of the final programme, the BBC carried out risk assessments, advised the journalists, and considered whether there were any reasons to depart from its established convention of not disclosing the identities of undercover reporters. The results of these assessments were that of the eight undercover journalists, the decision was taken that only Ms Mordi’s true identity would be revealed in the final programme (although in response to requests from Ms Obidiebube, she was later identified by her real name).

In the ordinary course of such a production and commensurate with his role as director and co-producer, C (and also Ms Francavilla) had some influence over who was involved in the programme. Although they had proposed that Ms Mordi be the onscreen presenter in the January 2019 proposal, decisions about who is engaged by the BBC on its programmes and what credits are given are taken by, and are the ultimate responsibility of, the executive producers, editor and commissioning editor.

‘Sex for Grades’ was released in October 2019 and attracted 11.4 million views on BBC Africa’s YouTube channel, making it (at the time) the third most-watched documentary on the channel. According to BBC metrics, the countries with the largest number of viewers and longest watch times were Nigeria, the United States and the UK. The programme was also available to view via the BBC iPlayer.

The programme had a substantial impact: more than twenty academic staff in various universities in Africa were dismissed or suspended and new legislation concerning sexual harassment was passed in Nigeria. The documentary was nominated for an Emmy in the International Current Affairs Category, a Grierson British Documentary Award in the International Current Affairs Category and won the AIB Impact Award, for most impactful programme in 2019/20.

As Ms Wilson observed orally, it is a piece of work which should have been career advancing for C. I agree. I watched some of it in preparation for the trial and is plainly an excellent piece of work. Instead, for reasons I will come to, it led to D writing an article defamatory of C which has been extremely harmful to him.

The Defendant

D is a journalist. He has an established profile and following within the jurisdiction partly through his articles for international publishers, including Al Jazeera, CNN and the Washington Post. D has various links with this jurisdiction, including having studied at the University of Hull, and holding a fellowship in 2023 at the University of Cambridge, but it is not clear where exactly his principal place of domicile is. As far as C understands it, he is a Nigerian citizen.

D publishes a newsletter via Substack. This is an online platform based in the United States which allows journalists and writers and other content creators to post their work which can be accessed by followers and subscribers (from which they can make money). At the material time, he had more than 42,000 Substack subscribers. He was also active on Twitter (now X) where he had more than 560,000 followers.

D’s Twitter followers include a material number of individuals within the jurisdiction, including many who work for the BBC, work for media organisations with operations in the jurisdiction, or have an interest in Africa, including Paul Arkwright, a diplomat. Mr Arkwright was previously the British High Commissioner to Nigeria and the UK’s COP26 Regional Ambassador to Sub-Saharan Africa. I will come back to this point later.

At some time unknown in 2021, the D started a relationship with Ms Obidiebube and they subsequently married in August 2021. According to D, they have since separated.

D’s defaming of C in 2022

On 12 September 2022, D emailed C, purportedly to put allegations to him prior to publishing an article about ‘Sex for Grades’ and inviting him to comment. D introduced himself as an ‘independent investigative journalist’; said he was working on a story about ‘managerial malfeasance at BBC Africa, and the circumstances surrounding the ‘sidelining’ of Oge Obi on the 2019 Sex for Grades’ documentary; and that he had information that C had had “an inappropriate personal relationship with Kiki Mordi’.

There followed an exchange of emails between C and D on 12 September 2022 and 13 September 2022.

On or around 26 September 2022, D published to a substantial number of readers within the jurisdiction on Substack an article entitled ‘Journalism Career Graveyard: The BBC And Its West Africa Problem’ via his Substack newsletter, ‘West Africa Weekly’, which was defamatory of C (the Article). A copy of the Article (with paragraph numbering added) is attached to the Particulars of Claim (PoC) at Annex A. A number of videos were embedded within the Article. D also included a screenshot of part of his email exchange with D in the Article, giving a misleading impression of the full exchange by omission.

The paragraphs of the Article which were defamatory of C were [45]-[81], that section ending with a prominent photograph of C holding a camera. As well as publishing on Substack, D promoted it via Twitter to his followers, thereby bringing the Article to the attention of many more readers.

In its natural and ordinary meaning the Article meant and was understood to mean that:

a. C had had an inappropriate sexual relationship with a potential contributor (Ms Mordi, aka, Kiki) to ‘Sex for Grades’ concerning sexual harassment in universities;

b. Solely because of that relationship, he brought her onto the team making the documentary and gave her the role of on-screen reporter;

c. he did so despite her having made no meaningful contribution to the programme;

d. without any justification, he took the credit for the programme and ensured Ms Mordi was given credit when, without the undercover footage obtained by Ms Obidiebube, there would have been no meaningful documentary and the programme was, in fact, the product of her (Ms Obidiebube) work;

e. he deliberately deceived Ms Obidiebube, and promoted Ms Mordi because he was having sex with her; and

f. he thereby abused his position as director and producer of the programme.

The untrue nature of D’s allegations

It should be clearly understood by all reading this judgment that these very serious allegations were wholly untrue.

Despite being served with these proceedings, D has not sought to defend the truth of what he wrote about C. The burden of proving them lay on him. He said that he would do so (as described below), but in the end he did not, or even try to. An obvious inference that can be drawn is that he knew they were false, and could not be defended.

Events following publication

Following publication of the Article, D was active on Twitter. Ms Wilson characterised this as D effectively goading C (and Ms Mordi) into suing him.

On 29 September 2022, D posted on Twitter:

“As for the people who are constantly threatening ‘legal steps’ because my stories have exposed their true nature to their international donors, NGOs and state actors, here is @WestAfricaWeek’s address. If you don’t sue me, you are all bastards. I double dare you…”
On 1 October 2022, D tweeted twice, directed at Ms Mordi, that she should sue if he was lying and she wanted to contend that D’s allegation that she had ‘traded sexual favours in exchange for workplace advantage’ was a lie. Also, in a tweet directed at C and Ms Mordi (using their Twitter handles) D wrote:

“Then why don’t you sue me for categorically stating that you had sex multiple times with @CNorthcott1 in the course of producing that documentary, and that this formed the sole basis of your fraudulent “career”?…”
On 2 October 2022, D tweeted a link to the Article and said:

“You all know Oge Obi is not really who you’re after so I find this exaggerated rubbernecking amusing. I wrote this story and I stand by it. Whoever has a problem with it knows the right course of action to pursue. Good afternoon”:
On 31 January 2023 a letter of claim was sent on behalf of C. It complained of defamation in relation to the Article including republications on social media (and complained of other matters and advanced other causes of action).

D emailed his response on 1 February 2023. It was combative in tone, to say the least. Among other things, D wrote:

“I completely stand by my story and I expect your ‘faithful husband’ client to sit down opposite me in court. If you have nothing further beyond more non-fact-checked claims, fatuous arguments and unreasonable demands, I encourage you to take the next legal steps forthwith. I have spent close to a decade practising high risk investigative journalism in one of the world’s most dangerous places to be a journalist. If you imagine that I can be bullied or intimidated by poorly done and obvious attempts at SLAPP litigation like this, then I enjoin you to see me in court where we can test that theory out.”
SLAPP stands for ‘strategic lawsuit against public participation’ and refers to a lawsuit that is brought primarily to chill the speech of individuals by subjecting them to costly litigation, without regard to prevailing on the merits.

The Claim Form was issued on 26 September 2023.

On 2 November 2023, C served proceedings on D. Service was effected by email in accordance with [5] of Master Stevens’ Order of 29 August 2023.

D failed to file an Acknowledgement of Service or a Defence, and C applied for judgment in default. As I have said, Master Stevens then entered judgment for C and gave directions for determination of remedies.

On 29 July 2024 Collins Rice J granted C a final injunction against D prohibiting him from repeating the defamatory allegations complained of and requiring him to cease to publish the Article within the jurisdiction from the Substack platform and all and any internet platforms to which he had published it or caused it to be published.

Ms Wilson said this Order has not been complied with, and that the Article is still available on Substack.

Issues arising for determination

I need to address the following primary issues: (a) the reasons for proceeding in D’s absence; (b) the quantum of damages; and (c) whether to make orders in C’s favour under ss 12 and/or 13 of the DA 2013.