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In turn, Fox – who founded the Reclaim Party and unsuccessfully stood as a candidate in the last London mayoral election – is counter-suing the trio over tweets accusing him of racism in an exchange following Sainsbury’s decision to celebrate Black History Month.
At a hearing on Thursday 28 April, Fox’s lawyers asked for the case to be decided by a jury rather than a judge – which is now highly unusual in defamation cases.
The Lewis actor attended the hearing at the Royal Courts of Justice in London, sitting behind his barrister in a navy suit.
Alexandra Marzec, representing Fox, told the court that her client was counter-suing to “clear his name from the false slur” of being called racist.
Ms Marzec said that a jury would be better at reaching fair verdicts “in light of the cultural and social context of this case”.
She continued: “On a question like this, ‘what is a racist?’, a judge is not helped by knowledge of the law, or being a skilled jurist or even high intellectual capacity.
“He or she is assisted by his or her own life experience and knowledge of the English language.”
The barrister said the jury was also more likely to be diverse than a single High Court judge.
Ms Marzec added: “All 12 people pooling their life experience and use of the English language to determine the natural and ordinary meaning of that word… A jury simply would be better at doing that task than one judge.”
In written arguments, the barrister said that Fox would be vindicated in a more valuable way if he was successful in his counter-claim heard by a diverse jury, as the decision would be “incapable of being undermined on the lazy basis that a white judge sided with a white man who denied being racist”.
She also wrote that his three tweets were not intended “or received or understood by anyone as a factual statement that any of the claimants were in fact ‘paedophiles’”.
Ms Marzec later argued that judges could be subject to “involuntary bias”, as a Judicial College document on equal treatment has an “ideological” definition of racism.
She later added: “I am talking about an appearance of bias here and I am not suggesting that any judge will not comply with his or her judicial oath.
“We are talking about how the public would perceive this.”
Heather Rogers QC, for the trio, disputed this claim.
She said: “It’s such a bad argument…. It is a guidance as to how you treat people in court, it is not the law.”
The barrister added in written submissions that they “can see no good reason for the court to order jury trial in this case”.
“There is nothing in this,” she said.
Ms Rogers later said that there was no suggestion made by anyone in the case that her three clients were paedophiles, adding that Fox’s case is that “he was using a rhetorical device”.
The judge hearing Fox’s bid for a jury trial, Mr Justice Nicklin, has not yet made a ruling on how the trial should be heard.
However, the senior judge said that juries could feature people with “real bias or real prejudice towards one or more parties”.
The judge also said that the judge hearing the trial would still be involved in the case, adding that jurors “are not going to be left like sheep on an open headland”.
The hearing is due to finish on Thursday afternoon with a decision likely to be given at a later date.