Episode #2 - Mark Lewis' initial legal analysis
Where things started to go wrong for the defendants
This is episode 2 of what happened in the High Court defamation and privacy case Wilson v Mendelsohn, Newbon and Cantor. Episode 1 ‘today we have naming of parts’ is here.
The series recap is: in December 2018, someone posted false defamatory statements about me on Facebook, including that I was a “freak who takes pictures of kids” outside a school. The post included a clear photo of me. The post was deleted shortly after it was published because a police officer went to the house of the person who posted it to tell her to delete it. As a result of the Facebook post, there were intimidatory incidents that caused me to fear for the safety of me and my family. The Facebook post ought to have disappeared, but Mr Mendelsohn took a screenshot of it in the short time it was online. He gave the screenshot to Dr Pete Newbon. In August 2020, some 20 months after the Facebook post had been deleted, Dr Newbon repeatedly posted the screenshot of it on X/Twitter. Dr Newbon deleted his posts the next day. Unfortunately, Mr Edward Cantor had copied the screenshot and he posted it on X/Twitter and refused to delete it. I was - as you might expect - unhappy about this state of affairs…
In this post I am going to begin explaining what happened in the litigation chronologically, starting in August 2020 after the defamatory screenshot was published on X/Twitter by Dr Newbon and Mr Cantor. The die was cast when Dr Newbon instructed Mr Mark Lewis of Patron Law. This post explores what happened and why that meant the defendants were highly unlikely to win at trial. There are four parts to this post: part 1 discusses Mr Lewis’ initial letter to me; part 2 is my opinion on the merits and likely consequences of Mr Lewis’ analysis; part 3 is about Dr Newbon’s understanding of his situation; and part 4 starts to tackle issues relating to the Solicitors Regulation Authority (SRA).
Before we get to those parts, though, I sent a draft of this post to: Mills and Reeve, the solicitors acting for Mr Lewis and Patron Law; and the SRA. I gave them an opportunity to contest any of the facts or opinions in this post and make a statement in response. The response from Mills and Reeve LLP is:
… our clients [Mr Lewis and Patron Law] are unable to comment in any event (as you know) given that they owe ongoing duties of privilege and confidentiality to their former clients. As you have identified, privilege remains a live issue and our clients are therefore unable to fully defend themselves in relation to the allegations which you continue to make via various public forums.
Our client reserves the right to respond further and/or take appropriate action as and when they are able / it is appropriate to do so, and not when you dictate.
For the record, I’m happy to add to this post any further response Mr Lewis or Patron Law wish to make.
The response from the SRA is:
The SRA are reviewing the matters raised in your Substack article and the new material that you are sending to us.
Part 1 - my letter before claim and Mr Lewis’ response
Dr Newbon’s email address was on his employer’s website and I had exchanges of emails with him after he published the screenshot. He claimed to be the victim and accused me of bullying, harassment and malicious falsehood. I suspect Mr Lewis wrote some of the gaslighting nonsense in Dr Newbon’s email to me. Having seen the evidence, the judge concluded that Dr Newbon’s publication of the screenshot was “simply abusive” and “amounted to a form of public bullying” of me. I tried to avoid a trial because the judge’s conclusions were inevitable and I wanted to protect Dr Newbon’s posthumous reputation by quietly settling the claim. There will be a future post on why this did not happen.
Dr Newbon told me he had instructed Mr Lewis and, on 18 August 2020, I sent Mr Lewis a long letter before claim in accordance with the pre-action protocol for defamation claims. I did not write to Mr Mendelsohn because I did not know the screenshot had come from him; and I did not write to Mr Cantor because I thought - with some justification - that his X/Twitter account was that of an anonymous troll. In my letter to Mr Lewis, I explained - carefully and calmly - what had gone wrong. I also explained about the intimidatory incidents when the original Facebook post was published.
Crucially, my letter explained that the screenshot had been republished by Mr Cantor, and asked Dr Newbon to help me get Mr Cantor to delete it. I thought whoever was behind Mr Cantor’s X/Twitter account would listen to Dr Newbon about why he should delete the screenshot. I was proved right about this, but not - unfortunately - for another eight months.
Mr Lewis wrote back on 26 August 2020. I am going pick out six points of that letter. The quotes from Mr Lewis’ letter are indented and my comments are below.
Notwithstanding your description of your 18 August 2020 letter as a [pre-action] Protocol letter, it does not (despite its 18 page length) comply with the Protocol.
I was a practising solicitor for 10 years. I have drafted lots of pre-action letters. My letter to Mr Lewis just did comply with the protocol.
Your threatened claim is devoid of merit. … If it is necessary to oppose any claim that is issued we will do so and seek costs against you. If successful, (given that you have stated that you have young children) it is regrettable that in the absence of payment, the only method of enforcement against you will be the pursuit of Bankruptcy which is likely to affect your professional status.
I won at trial in the High Court, so Mr Lewis saying my claim was devoid of merit is total nonsense. And I took the reference to my bankruptcy, my young children, and my professional status as an attempt to intimidate me using my job and my children (“Nice children you have got there, what a shame if you went bankrupt and lost your job so you could not afford to look after them properly”).
Mr Lewis kept repeating that I would go bankrupt (see part 4 below) and it is something he personally hoped to achieve. In contrast, I am trying to avoid bankrupting Mr Lewis’ former clients because I am not malicious. For their part, Mr Lewis and his firm Patron Law deny any liability to their former clients, and seem relaxed about their bankruptcy and Mr Cantor losing the home he and his family live in because he cannot pay my costs. This is even though Mr Lewis continued to advise and encourage the defendants long after he identified a conflict of interest between himself and them.
It is a matter of public interest that the parents of schoolchildren should be aware of your propensity to take their photographs and invade their privacy ...
I had not taken any photographs of children or invaded anyone’s privacy. Public interest is a defence under section 4 of the Defamation Act 2013. There was no public interest in Dr Newbon publishing false defamatory statements about me, especially since they put the safety of me and my family at risk. When litigation started, the defendants did not rely on a public interest defence. Had they done so, the judge would have struck out that defence.
Dr Newbon’s response was a reply to an attack by you.
If someone is subject to a defamatory attack made publicly by another person, they have the right to reply publicly by making defamatory statements about the other person without incurring liability for defamation. The statements made in reply must be relevant and proportionate to the original attack. I had not attacked or defamed Dr Newbon. When litigation started, the defendants did not rely on the defence of reply to attack. Had they done so, the judge would have struck out that defence.
What the post does not do is identify you. We have tried to understand your claim as some attempt by you to assert an innuendo reference.
In a defamation claim, the claimant must prove that the defamatory statement identifies them or is ‘about’ them. The claimant can be identified by name, photo, or other information; and the test is whether reasonable people would understand the defamatory statement to refer to the claimant.
The screenshot obviously identified me because - although I was not named - it contained a photo of me that was instantly recognisable. It was also posted in response to my posts on X/Twitter and the photo looked like my profile photo. When litigation started, the defendants did not defend the case on the basis I was not identified. Had they done so, the judge would - in addition to thinking the defendants were taking the piss - have struck out that defence.
The only interaction was a response by “Eddy Cantor” [Mr Cantor] whose tweets to you suggest that his opinion of you could not be lowered. Have you sued him? … If there was any other publication (which seems unlikely) it must be that such was de minimis.
In defamation law the original publisher may be liable when someone else republishes their defamatory statement. In my case, Dr Newbon was the original publisher on X/Twitter and Mr Cantor was the republisher. It is hard to understand what Mr Lewis meant, not least since he seems to believe that for defamation you have to interact or respond to a post on X/Twitter rather than just read it. And it was not “unlikely” that there had been any other publication of the screenshot, it was an absolute certainty: Mr Cantor had republished the screenshot (as I had explained in my letter and as Mr Lewis had been notified by Dr Newbon).
Mr Lewis’ suggestion that I sue Mr Cantor is bizarre because if he was liable, so was Dr Newbon. The only way Dr Newbon could avoid liability for Mr Cantor’s republication was to persuade the court it was not reasonably foreseeable that someone would republish the screenshot Dr Newbon had posted. The judge concluded - having understood how X/Twitter works - that republication was “not simply reasonably foreseeable, but almost inevitable”. Finally and crucially, there was nothing in Mr Lewis’ letter which indicated any willingness by Dr Newbon to ask Mr Cantor to delete the screenshot.
Part 2 - what was my opinion of Mr Lewis’ response?
I had read Patron Law’s website claiming that Mr Lewis is the “UK’s foremost media, libel and privacy lawyer”. My opinion having read Mr Lewis’ letter was: he is incompetent and he is trying to intimidate me.
I was a practising solicitor for 10 years. Competent solicitors see the strengths and weaknesses of the parties’ cases before litigation starts. If you act for a defendant where the claimant obviously has a strong claim - as I did in my case - there are sensible options. These include: advising your client they can negotiate a settlement, minimising damages and costs; and advising your client they can refuse to settle and hope the other side does not sue. Making false claims and aggravating the other side are generally not sensible options and not in your client’s best interests. The other side will know your claims are false, and it will only encourage them. Because your client is likely to end up paying costs and damages, aggravating the other side increases how much money your client will have to pay.
In relation to how bad Mr Lewis’ analysis in his letter was, his apparent failure to grasp that I was identified by my photo in the screenshot, and that Dr Newbon was liable for Mr Cantor’s republication of the screenshot, are inexplicable. If third year students on an undergraduate law degree were set a coursework question on defamation based on the facts of my case, only the very weakest students - those likely to fail - would not realise that I was identified by my photo. In my opinion, if Mr Lewis was to demonstrate a similar level of knowledge and understanding of defamation law in answering that coursework question as he did in his letter to me, then he would likely fail the coursework. Even the weakest students know about the Tolley v J S Fry case from the 1930s and understand that a claimant can be identified by photo or drawing (in Tolley an amateur golfer successfully sued a chocolate manufacturer for libel after a sketch of him was used in newspaper adverts without his consent and which impugned his amateur status).
As to the consequences of Mr Lewis’ analysis, the crux is this: if (a) Mr Lewis did not understand that Dr Newbon would be liable for Mr Cantor’s republication of the screenshot and did not advise Dr Newbon to ask Mr Cantor to delete it; then (b) Mr Lewis made it very unlikely his then client (Dr Newbon) and his future clients (Mr Mendelsohn and Mr Cantor) could successfully defend my claims. More and more people were seeing Mr Cantor’s post of the screenshot, which made it less and less likely the defendants could successfully rely on the one half-decent argument they had: lack of serious harm to my reputation because so few people had seen the screenshot. And the damages the defendants had to pay were going up and up as more people saw the screenshot.
If you think there is an issue with Mr Lewis going on to act for Mr Mendelsohn and Mr Cantor when Mr Lewis made their position worse while he was acting for Dr Newbon alone, it will be covered in a future post. For now, it seems unlikely Mr Lewis said to Mr Cantor “Before you instruct me you should know that you are unlikely to win this case, and the damages you will have to pay have gone up, because I did not advise Dr Newbon to tell you to delete the screenshot when I was acting for him alone.” And yet more unlikely that Mr Cantor would have instructed Mr Lewis knowing this. Nobody wants a solicitor who seems to have made their position worse while acting for someone else? There is also the issue that Mr Lewis suggested I sue Mr Cantor and not Dr Newbon. Funnily enough, Mr Lewis did not suggest I sue Mr Cantor when he started acting for both Mr Cantor and Dr Newbon.
Part 3 - what was Dr Newbon’s understanding?
Just because Mr Lewis’ analysis in his letter to me was awful, that does not necessarily mean his advice to Dr Newbon was awful, though it does seem unlikely Mr Lewis’ analysis for Dr Newbon was different from his analysis for me. It would be very strange for a solicitor to say to a client “The other side has a good case, but my advice is that we should make false claims to put them off suing you.” Although Mr Lewis’ actual advice to Dr Newbon is privileged, information about it is available because it was referred to in messages between the defendants that had to be disclosed at trial. Before getting to those messages, though, I need to provide some background information.
That background is that Dr Newbon was involved with an organisation called Labour Against Anti-Semitism (LAAS). Two others involved with LAAS are Mr Euan Philipps and Ms Emma Picken and they were on a panel at a UK Lawyers for Israel Charitable Trust event in February 2020. Mr Lewis was discussed at length. The quotes from Ms Picken and Mr Philipps include:
[Ms Picken] Mark [Lewis] has been an absolute hero to and extremely helpful to myself and Euan [Philipps] in terms of the work that Labour Against Anti-Semitism has done. We could not have functioned without him so … [applause]
[Mr Philipps] Absolutely. I mean, you know, he’s [Mr Lewis] is doing a remarkable job and apparently bringing down every enemy of the community one by one. You know. They’ve always got a plan until they get sued by Mark Lewis [laughter] at which point, you know, things suddenly become a lot more real.
I am going to write more about LAAS in a future post, but for now: Mr Lewis appears to have been the go-to lawyer for LAAS; and the LAAS people believed he was some kind of heroic or remarkable figure. It is wrong to think about lawyers in this way. No doubt some lawyers are better than others, but lawyers can only do so much; and the very best lawyer cannot extricate you from the consequences of your actions where the facts and law are against you, and the other side want to pursue a claim.
Against that background, then, are Dr Newbon’s messages about Mr Lewis’ advice to him in my case during and after August 2020. Some of Dr Newbon’s messages are:
If he does come for me - I should have Mark Lewis pro bono - so I think I’ll be okay.
So one thing I have learned this week - and when I say learned, I mean this in quite a profound sense - that thing is: don’t fuck with Mark Lewis.
Anyway Mark [Lewis] seems v confident I have nothing to worry about.
Mark [Lewis] does not think he has the funds to sue - and that it would be dismissed swiftly. I guess I just have to trust in ML.
This is from the email Mark [Lewis] sent me before replying: “I have received a rather rambling letter from Wilson. The fact that he has consulted a barrister over a telephone call does not mean that he is going to pursue a claim nor the advice that he received. I cannot prevent him from issuing proceedings against you unless we accept liability. I suspect that he is starting to do something as time is running out for him to make a claim. As far as libel is concerned there is such limited publication that he can hardly rely on there being serious harm. As far as breach of privacy is concerned I cannot see that there is a good claim particularly as he took a picture of a child in the first place. As far as harassment is concerned, I am confident there is no claim whatsoever.”
Several things seem clear from these messages, including: Mr Lewis’ advice to Dr Newbon was, so far as I can tell, along the same lines as in the letter to me; Dr Newbon was led to believe that my case against him was very weak, when in reality it was strong and getting stronger while nobody did anything about Mr Cantor’s republication of the screenshot; Dr Newbon appears not to have been advised to ask Mr Cantor to delete the screenshot; and Dr Newbon had faith in Mr Lewis and thought he was a great lawyer.
What Dr Newbon needed was some pragmatic legal advice. That advice would have secured a very quick and very cheap resolution for Dr Newbon (and the other defendants) before litigation started. It seems Dr Newbon did not receive pragmatic advice, indeed quite the reverse. It is common knowledge that Dr Newbon kept the litigation he was involved in secret from his wife and it put his family’s financial security at risk. I suspect Dr Newbon believed he had nothing to worry about because Mr Lewis could protect him pro bono. It is not clear from Dr Newbon’s messages that he understood that it was only Mr Lewis’ fees - and not my costs - that were pro bono. And because Dr Newbon believed he had nothing to worry about, he did not warn Mr Mendelsohn and Mr Cantor of what was happening. All of this is long before Dr Newbon’s ‘Bear Hunt’ post on X/Twitter in May 2021 and the decision to sue Mr Michael Rosen for defamation.
I am going to write about this in a future post, but when Mr Mendelsohn found out in April 2021 that Mr Cantor had republished the screenshot, he secured its deletion immediately. Had that happened in August 2020, there would probably have never been any litigation. In the first post I joked about Mr Lewis being a worse defamation lawyer than Mr Mendelsohn, but the defendants may have made a better job of protecting themselves if Mr Lewis had not been involved.
All this gets to the nub of the issue in terms of why I think Dr Newbon and the other defendants have limited moral culpability for what happened in my case. Sure, they did something stupid and unpleasant to me, but sometimes people do things that are stupid and unpleasant. In the normal course of events, they’d have instructed a solicitor who could see they were in serious difficulties and that the costs risks were huge; and who would have solved all their problems with apologies and agreement not to publish the screenshot again.
Instead, Dr Newbon had a solicitor whose analysis was, in my opinion, incompetent; and who it seems, on the basis of Dr Newbon’s messages, gave awful advice. Is Dr Newbon to blame for trusting Mr Lewis? Or was it understandable for him - given he was involved with LAAS who believe Mr Lewis is a swashbuckling legal hero - to trust what Mr Lewis said? And then there is Patron Law’s website and the false representation that Mr Lewis is the “UK’s foremost media, libel and privacy lawyer.” I have doubts that this false representation can be squared with the SRA’s Principles that require solicitors to act with honesty and integrity. I also suspect that a lot of the awful stuff I endured in the litigation was driven by Mr Lewis personally and not his clients. As I’ve said before, I deplore any attacks or trolling of Dr Newbon (and the other defendants). It should stop. It’s not fair on his family.
That’s the main bit of the second post done. The headlines are: my opinion is that Mr Lewis’ analysis in August 2020 was awful and it meant the defendants could not realistically win at trial. I suspect that at some point Mr Lewis himself realised his analysis had been awful, but he could not accept he was wrong, so his clients’ liability for damages and costs went up and up. I also suspect Mr Lewis hoped to get me to abandon my claim with threats of bankruptcy. There’s more about that in the next part.
Part 4 - the Solicitors Regulation Authority
There are going to be posts in future about the Solicitors Regulation Authority (SRA) and its investigations into Mr Lewis. You do not need me to explain why I think the SRA should take a long hard look at what happened in my case.
I want to start to cover one issue now which is Mr Lewis’ repeated threats of bankruptcy. Part of the reason I am publishing these posts is because the SRA and Mr Lewis’ compliance officer at Patron Law, Mr Benjamin May appear to think events in my case are okay and no action is required. Perhaps they are right, but I want to compare what has happened to Mr Lewis with what has happened to another defamation solicitor, Mr Ashley Hurst from Osborne Clarke. Mr Hurst was prosecuted by the SRA before the Solicitors Disciplinary Tribunal (SDT) and found to have misused a ‘without prejudice’ heading in an email. In December 2024, he was fined £50k and has to pay £260k in costs. It is important to say that the SDT judgment has not been published yet, so the reasons for the decision are not fully known. These are, though, the offending words in Mr Hurst’s email to the other side:
You have said that you will “not accept” without prejudice correspondence. It is up to you whether you respond to this email but you are not entitled to publish it or refer to it other than for the purposes of seeking legal advice. That would be a serious matter as you know. We recommend that you seek advice from a libel lawyer if you have not done already.
So you can compare what Mr Hurst wrote with what Mr Lewis wrote, here are some of the things Mr Lewis wrote, some of which he too put behind a ‘without prejudice’ heading:
If successful (given that you have stated that you have young children) it is regrettable that in the absence of payment, the only method of enforcement against you will be the pursuit of Bankruptcy which is likely to affect your professional status.
I stressed to you that the pursuit of such a claim had the potential to lead to your bankruptcy, and loss of your professional status. It is regrettable that you not only ignored those warnings but saw your pursuit of this claim as some sort of challenge.
You are free to proceed, you will end up bankrupt with the ramifications to your professional status. You cannot say that you were not warned.
… all we will say is that we do not expect you to win and are confident that you will not make any recovery even if you did win, if the case goes against you, you will end up bankrupt, and possibly will be bankrupted even if you win. We did warn you at the outset.
It might be that I end up with a large costs order against Wilson and will not hesitate to enforce such if I can hopefully make him bankrupt.
I do not know why Mr Lewis was sure I would go bankrupt or how he personally would end up with a costs order against me. In my opinion, Mr Lewis and Patron Law were deliberately using the threat of bankruptcy - and linking it to my job and my children - to try to intimidate me. And they did it to try to prevent me from starting, and then to try to get me to abandon, what was a completely justified defamation and privacy claim, where my primary reason for bringing the claim was because the publication of the screenshot made me concerned for the safety of me and my family. Is it just me that thinks the conduct of Mr Lewis and Patron Law is wrong? And far worse than what Mr Hurst did?
The SRA has had all the above evidence (and much more). The SRA’s investigation was done by a solicitor at the SRA; the outcome was approved by an investigations manager at the SRA; and, apparently, a person in a very senior position at the SRA had oversight of the investigation. This is the SRA’s decision about what Mr Lewis wrote about bankruptcy:
There is no evidence that Mr Lewis has or had a desire to bankrupt you. He warned you that you could end up bankrupt if you lost at trial as you would have been liable for the defendants’ costs.
That is the entirety of the SRA’s decision on this issue. There is nothing more. There is a lot more to come from me on the SRA, but three points for now.
The SRA’s decision was “There is no evidence that Mr Lewis has or had a desire to bankrupt you”, but Mr Lewis’ own words were “… I can hopefully make him bankrupt.” How is hoping for something to happen not evidence of a desire for it to happen?
The SRA’s decision was “[Mr Lewis] warned you that you could end up bankrupt”, but Mr Lewis own words were “… you will end up bankrupt with the ramifications … You cannot say that you were not warned.” Mr Lewis was not saying I could end up bankrupt, but trying to intimidate me by saying I would end up bankrupt.
The SRA’s decision was that Mr Lewis said “you could end up bankrupt if you lost at trial”, but Mr Lewis’ own words were “… will be bankrupted even if you win [at trial].” Mr Lewis was trying to intimidate me by writing - it is a bit difficult to see how he believed this - that I may end up bankrupt if I won.
I am trying not to be rude, but: was anyone involved in the SRA’s investigation able to read what Mr Lewis had himself written?
All of this raises the issue: how is it that Mr Hurst from Osborne Clarke gets prosecuted and fined £50k for what was a fairly standard email to the other side about not disclosing correspondence; but Mr Lewis and Patron Law get a free pass to intimidate opponents with bankruptcy, specifically linking it to their children and their job?
What makes this more concerning is that the SRA has a specific statutory duty to have regard to transparency and consistency when deciding what action to take (section 28(2) of the Legal Services Act 2007). How is the SRA’s decision transparent when the decision bears no relation to Mr Lewis’ own words? And how is it consistent with what the SRA did to Mr Hurst?
There we go. There will be more posts about the SRA in due course. I am not sure what the next post will be, but it will be on Friday 7 February.