Aluko v Barton preliminary issues trial: Court finds former footballer’s tweets were defamatory
We have written previously about the libel troubles of former footballer Joey Barton as a result of his antics on X/Twitter. Those troubles continue in the form of a judgment on a preliminary issues trial resulting from his tweets about fellow former footballer, Eni Aluko, by Mr Justice Lavender in Aluko v Barton [2025] EWHC 853 (KB).
The tweets in issue
On the morning of 17 January 2025, Barton tweeted:-
“Cry me a fucking river…
I was waiting for the victim card to be played.
Eni, sorry luv, you’re dreadful as a pundit.
Tone deaf, can’t count and most importantly you know next to nothing about men’s football.
You should have ran off to a desert island after your ‘Arteta phoning Pep to put a bid’ in nonsense.
Everyone is laughing at you.
Not just me. ”
Below this text Barton included a headline from an online video about Aluko, which read “Eni Aluko speaks on online abuse, hate speech, harassment towards women in football broadcasting” and a link to a video of Aluko speaking about these subjects (‘the Victim Card Post’).
Later, on the afternoon of 17 January 2025, Barton tweeted “Surprise surprise ” above a screenshot of a Guardian website article from August 2017, which showed a picture of former footballer Eni Aluko and, amongst other things, the headline “FA faces calls for fresh investigation after Eni Aluko’s claims of racism and bullying” (‘the First Post’).
Two days later, on 19 January 2025, Barton tweeted:-
“More has come to light about poor, little Eni Aluko.
Dad was a Nigerian Senator. Dodgy money. Ran to England. Massive house in Wentworth. 3 Rolls Royce’s [sic]. St Mary’s in Ascot private education.
Lawyer. Race card player.”
Below this text Barton included a photograph of Aluko from the BBC, which had the headline “Aluko apologises for furlough tweets” and a link to an article which reported on Aluko apologising for criticising those on the government’s furlough scheme during the Covid-19 pandemic (‘the Second Post’).
The trial of preliminary issues
Lavendar J was asked to determine:-
- The natural and ordinary meaning of the First Post and the Second Post;
- The meaning of the First Post to readers who had also read the Victim Card Post (an ‘innuendo’ meaning);
- Whether the First Post and/or the Second Post contained statements of fact or opinion; and
- Whether the meanings found were defamatory.
The parties’ arguments
The First Post
Both parties argued that the ‘natural and ordinary’ and ‘innuendo’ meaning of the First Post was the same:-
Aluko argued the First Post meant “the Claimant made dishonest and unwarranted racism and bullying claims in respect of her participation in the England Women’s football team as part of a pattern of bad faith complaints of discrimination.”
Barton argued the First Post meant “the situation with regard to calls from anti-racism groups for the FA to open a fresh investigation into the Claimant’s contested clams [sic] of racism and bullying which had been investigated 6 years earlier was laughable but predictable”.
The Second Post
Aluko argued the Second Post meant that she “(a) is a hypocrite for criticising a culture of entitlement when she is herself the beneficiary of dodgy money which her father pocketed through being a corrupt Nigerian senator and which has paid for her to have a lavish lifestyle with an enormous house, three Rolls Royce cars and a private education, and (b) has persistently made dishonest and unwarranted complaints about racism in order to gain unjustified advantages.”
Barton argued the Second Post meant that “(1) the Claimant had acted hypocritically in publicly criticising the Covid-19 furlough scheme on the basis that by paying 80% of the salaries of employees earning up to £2,500 pcm, it was encouraging in those employees a culture of entitlement and/or a “do-nothing” mentality, when she had been brought up in an affluent household and had enjoyed the benefits of that affluence, namely a very large house in an affluent area; luxurious cars and a private education, and (2) the Claimant had raised the issue of race in the context of arguments or discussions.”
The Judge’s decisions
Meanings
Lavender J found that the natural and ordinary meaning of the First Post meant “It was both predictable and laughable that the Football Association had faced calls for a fresh investigation into its handling of the claimant’s claims of racism and bullying.” The Judge rejected the parties’ submissions that the innuendo meaning was the same as the natural and ordinary one, and found that the innuendo meaning of the First post was “In making claims of racism and bullying in respect of her participation in the England women’s football team the claimant cynically sought to exploit her status as an alleged victim of racism and bullying, her claim to be a victim of racism and bullying was unwarranted and it was both predictable and laughable that she acted in this way.”.
From this we can see that while Barton will be the far happier party on the decision of the natural and ordinary meaning (see why below), the Judge’s decision on the innuendo meaning falls somewhere between that contended for by the parties. Importantly, for Aluko, the innuendo meaning includes that she “cynically sought to exploit her status as an alleged victim of racism” which is, in effect, a finding that an allegation of “playing the race card” is cynical and/or dishonest (though the Judge avoided using the word dishonest). Aluko will no doubt be content with the innuendo meaning found, which is likely to be very difficult for Barton to substantiate is true (if it is his intention to advance a truth defence). The key point here is that in order to prove the substantial truth of this meaning, Barton would need to obtain findings of fact about Aluko’s mental state when “playing the race card”, which one would expect most judges to be very slow to find.
The Judge went on to decide that the Second Post meant “The claimant was a hypocrite for saying that the furlough scheme created a “do-nothing” mentality and a “culture of entitlement” when she was herself the beneficiary of dodgy money obtained by her father, a Nigerian senator who ran to England, which has paid for her to have a massive house, three Rolls Royce cars and a private education” and, separately, that “The claimant has on at least one occasion cynically sought to exploit her race.” Here, again, the Judge has found a meaning somewhat less injurious than the one Aluko contended for, but in key areas more serious than that Baron sought. Critically, the “cynically sought to exploit her race” will, again, require a Judge to make findings about Aluko’s state of mind if Barton is to succeed on a truth defence: a very high bar.
Fact or opinion
The Judge found that the First Post (both its natural and ordinary meaning and its innuendo meaning) was a statement of opinion. The Judge found that the first part of the Second Post was a statement of opinion, but that it was a statement of fact that Aluko had “on at least one occasion cynically sought to exploit her race”. This being a statement of fact presents real difficulties for Barton at trial.
Defamatory ‘at common law’
The Judge found that the First Post was not defamatory in its natural and ordinary meaning, as, in that meaning, it did not refer to or criticise Aluko at all – it was about the conduct of the Football Association. The judge found all other meanings to be defamatory of Aluko.
Comment
Because the majority of the publications have been found to be defamatory of Aluko, the mainstream media reporting of the judgment has been skewed towards an Aluko “win”. The Independent’s headline described her “winning first stage of libel case against Joey Barton”. Whilst it is common for trials of preliminary issues to leave one party in a weaker position (the case they had been intending to advance no longer working with the decided meanings or fact/opinion outcome) there are very few outcomes where a party technically wins or loses at such a hearing. In this case, the only total loss was actually Aluko’s: it is now not possible for her to succeed in her claim on the natural and ordinary meaning of the First Post, the Judge having decided it is not defamatory of her at all.
Cases frequently settle after a meaning determination (as was the case following the preliminary issues trial in Vine v Barton [2024] EWHC 1268 (KB)). Alternatively, Barton can seek to appeal the decision or try to defend the claim at trial (notwithstanding the above obstacles). Given the Judge’s clear reference to settled authorities on how to determine meaning, and balance in the decision, it is not clear how the preliminary decision can be challenged.
