COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE JONATHAN PARKER
LORD JUSTICE MAURICE KAY
| ADAM MUSA KING
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Richard Rampton QC & Harvey Starte (instructed by Peter Carter-Ruck and Partners) for the Respondents
Crown Copyright ©
Lord Justice Brooke :
"Detectives are investigating two white people in Britain who they suspect of aiding Osama bin Laden's terror network.
Secret Scotland Yard documents, obtained by The Sunday Telegraph, name two men one of whom is understood to be a computer expert as assisting al-Qaeda's network in this country. It is the first time since September 11 that white non-Muslims have been accused of involvement in Islamic extremism.
The documents reveal that a special unit has been established at the Yard to carry out 'Operation Full Circle', to monitor the two white men and 22 other suspects. All are being investigated to establish whether they have committed terrorist offences.
The Sunday Telegraph cannot name the two for legal and operational reasons.
One of the two white men on the list, the computer expert, is believed to have assisted bin Laden operatives with website activities. He is named in the document as also being linked to Francis Etim, who has been charged under the Prevention of Terrorism Act. Etim, who lived in Greenwich, south-east London, was born in Britain and converted to Islam at marriage and changed his name to Sulayman Zain-Ul-Abidin.
Also on the list is a white man with a French name. Little is known of him, except that he has adopted several aliases. He is believed to be wanted in connection with Algerian plots to attack France."
"there were strong grounds to suspect the claimant of being a supporter and accomplice of Osama bin Laden's al-Qaeda network of terrorists who had assisted in that network's terrorist operations by helping with website activities".
"The FBI wants to question a white British Muslim computer expert, who lobbies for the Libyan government, about his alleged links to Osama bin Laden's terror network.
Louis Szondy, who also calls himself Adam Moussa, is on the list of 24 people sent to the British police by the FBI. He is the second white Briton to appear on the list.
This newspaper has already revealed that American intelligence officers want to talk to Mark Yates, a weapons expert from Liverpool who allegedly trained Muslims who might later have become members of Osama bin Laden's al-Qa'eda terror network.
Mr Szondy, who is married and has an address in Harlesden, North London, runs a computer firm called Unitel which has offices in Burton-on-Trent and the Sudan. He also supports Colonel Gaddafi and the Libyan regime. Two years ago he changed his name by deed poll to Adam Moussa, apparently calling himself after a senior figure within the Libyan intelligence service.
The Special Branch has established that Mr Szondy developed a website for Sakina Security, the London-based organisation which is suspected of providing military training for young Muslims. The website includes enhanced security features which allow Sakina to keep some of its activities secret.
Francis Etim, the man behind Sakina, is now being held in Belmarsh prison awaiting trial on terrorism charges, which he denies. Mr Szondy has close links with Sakina Security and allegedly still holds the registration of the internet domain name Sakinasecurity.com.
Through the website, Sakina offered what it described as 'the Ultimate Jihad challenge' a two-week course in shooting and 'bone breaking'.
Unitel has also allowed Sakina to use its facilities and provided access to the services of a business registration firm. London-based British Monomarks, a kind of private post office, allows companies to use its premises as their headquarters. An official said: 'Mr Szondy has been allowing Sakina to use his facilities here. That has been going on for some time. It is only recently that we have been told Adam Moussa and he are one and the same'.
Patricia Szondy, Mr Szondy's mother, confirmed last night that her son had changed his name by deed poll and set up the Sakina website.
She added that police had now seized his computers. She insisted, however, that he was innocent of any links with al-Qa'eda.
'My son is not a terrorist' she said. 'He's totally opposed to any terrorist activity. I believe he is wanted as a witness, not as a suspect. I don't think he knew if Sakina was up to anything. The police have taken things from his home including a computer. They haven't given us a full list of things taken.'
Mr Szondy also (sic) the owner of Mathaba, an internet site for Islamic extremists. According to documents on Mr Szondy's own website, he is a self-proclaimed 'white Muslim' and a supporter of Colonel Gaddafi.
He distributes copies of the Libyan leader's 'Green Book', which advocates the overthrow of Western democracy. Special branch officers are probing his work for a fanatically pro-Libyan organisation called Green Charter International. The London-based organisation, which has its own internet site, campaigns for the establishment of Libyan-style regimes throughout the world.
The organisation says: 'Human rights cannot be guaranteed in a world where there exist governors and governed, masters and slaves, rich and poor.'
M15 and the Metropolitan Police's Special Branch were looking into Mr Szondy even before September 11, because he had posted classified documents on his website.
They were copies of M15 files obtained by David Shayler, the former agent.
A spokesman for the Jewish Community Security Trust, said: 'We have believed for sometime (sic) that Adam Moussa and Louis Szondy are one and the same person'.
No one at Unitel was available for comment."
These words were illustrated with a photograph of the claimant with the caption "Pro-Gaddafi: Louis Szondy renamed himself Adam Moussa, after a Libyan intelligence official".
a) There were strong grounds to suspect the claimant of being a supporter and accomplice of Osama bin Laden's al-Qaeda network of extremist Islamic terrorists.
b) The claimant advocates and supports violent Islamic extremism, running a website for Islamic extremists, distributing copies of a book which advocates the overturning by force of Western democratic government and working for an organisation fanatically devoted to supporting and replicating throughout the world the Libyan regime of Colonel Gaddafi.
c) The claimant has for some time been recognised as a threat to the safety and security of the Jewish community.
On this appeal we are not really concerned with the second and third of these meanings.
"In so far as the words complained of in paragraphs 4 and 6 of the particulars of claim bore or were understood to bear the meaning that the police suspected the claimant of involvement in terror-related activities on reasonable and/or strong grounds, they are true in substance and in fact."
"In so far as the words complained of in paragraphs 4 and 6 of the particulars of claim bore or were understood to bear the meaning that there were reasonable and/or strong grounds for suspecting the claimant of involvement in terror-related activities, they are true in substance and in fact."
"(6) In the light of the above, the Anti-Terrorist Branch at New Scotland Yard suspected that the claimant was an accomplice of Francis Etim and placed his name on a list of persons suspected by the police of being Islamic extremists in the United Kingdom involved in terrorist offences.
(7) The police raided the claimant's home on 18 October 2001 and removed a computer, documents and other belongings".
"In the light of the above, there were strong and/or reasonable grounds for suspecting that the claimant was an accomplice of Francis Etim."
"The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act."
(1) There is a rule of general application in defamation (dubbed the "repetition rule" by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation not merely the fact that the allegation has been made;
(2) More specifically, where the nature of the plea is one of "reasonable grounds to suspect", it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged;
(3) It is impermissible to plead as a primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty;
(4) A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts;
(5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the so-called "conduct rule").
(6) It was held by this court in Chase at   that this is not an absolute rule, and that for example "strong circumstantial evidence" can itself contribute to reasonable grounds for suspicion.
(7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.
(8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue has to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).
(9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.
(10) A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.
(a) that the police suspected the claimant of involvements in terror-related activities;
(b) that the claimant was suspected of such activities on grounds that were reasonable and/or strong.
"In the present case, for example, there could have been three categories of justification proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt."
" it is improbable that the claim will succeed and any order against the defendant is likely to be difficult to enforce."
This wording was, no doubt, based on the wording of paragraph 4 of the Practice Direction to CPR 24 which provides that:
"Where it appears to the court possible that a claim may succeed, but improbable that it will do so, the court may make a conditional order as described below."
"The costs of defending this action are likely to be extremely high. The defendant has entered a substantive defence pleading justification and qualified privilege. The best estimate at this early stage of the costs that will be incurred to defend the claim to judgment after a jury trial is approximately £300,000. For the reasons given above, this amount is likely to be irrecoverable if the defendant wins. If the claimant were to win at trial his bill of costs is likely to be at least as high as the defendant's and subject to uplift by way of a success fee which I have mentioned. This could result in total costs in excess of £1 million plus any award of damages which the court may make.
Any reasonable award of damages is likely to be so low in comparison to the costs of a trial that those costs will be entirely disproportionate to the issues at stake for the parties. In those circumstances the defendant is faced with a situation in which it does not make economic sense to defend the proceedings. The economics of the situation clearly dictate in favour of the defendant making attempts to settle the action by offering compensation for a publication in respect of which it has been advised it has a sound defence. It is reluctant to do so because of issues of journalistic integrity and the fact that such action would inevitably encourage claimants and their solicitors to make similar claims in the future. This in turn would be likely to lead to a self-imposed restraint on publication for fear of being sued by impecunious claimants, no matter how satisfied the potential defendant was that his story is true and/or covered by qualified privilege. Such a chilling effect on a newspaper exercising its right to freedom of expression would not be in the public interest which the Reynolds defence, for example, is designed to protect."
"The defendant believes not only that this claim has less than a 50-50 chance of success but that the claimant in fact has no real prospects of success. Accordingly it is making this application for summary judgment. Even if the court were to consider that the claimant has some albeit improbable prospect of success the defendant respectfully submits that the court should be very cautious before it permits cases with less than a 50-50 chance of success to proceed on a CFA without an ATE, without clearly signalling the likely problems should the CFA require to be enforced. In the alternative to the defendant's substantive application, the defendant submits that the proper way for the court to do this is to make a conditional order. My firm has written to the claimant's solicitors notifying them of this application and alerting them to the need to provide the court with evidence of the claimant's means for this purpose."
"3. At the heart of this appeal is whether the court does have the power in circumstances like this to police the litigation by one or other of the types of order that Mr Price is suggesting that it can make, and it will be considering this matter against the facts of this case. In my judgment, it will be much more straightforward for the court, in a necessarily short two-day hearing, to go straight to the real issue which is whether the court has power to make the type of order Mr Price suggests against the background of the evidential material in this case without being distracted by considering other matters such as the matters set out in Mr Pepper's statement, or the experience which other newspapers and representatives of the news media might have.
4. It would cause great concern if we were going to go along that path as an appeal court. The proceedings will get quite out of control, there will be submissions and requests to cross-examine on factual evidence, there will be the kind of requests for evidential material and statistical material we have already seen in the correspondence, and if new parties were allowed to intervene one would emerge with a quite unpoliceable piece of appellate litigation.
5. I go back to the view of the very experienced judge when he said that Mr Price had highlighted a genuine cause for concern and that there was the potential for a chilling effect on investigative journalism and for significant injustice.
6. Against that background, in my judgment, the course the court should adopt is to permit the claimant to put in such further evidential material from the witness statements which were not before the trial judge on the basis that they should be lodged in the Court of Appeal as soon as possible and in any event within four weeks, leaving it to the decision of the court which hears the case to determine whether formally to give permission to adduce this material once it has heard proper argument on the matter, if it is lodged. That court will be able to pre-read and see the nature of the material.
7. I would not be disposed to allow Mr Pepper's material to be put before the court. If it was to be put before the court there would have to be cross-examination, and there would have to be, no doubt, disclosure to be policed and statistical evidence. In my judgment it would take us not much further than where Mr Price persuaded the judge to end up in his judgment. When I say that we are concerned in this appeal with the facts of this particular case, it is the genius of the common law that one does decide these matters on a case-by-case basis. Then after this court has decided whether or not the court does have power to police these matters, it may be on some subsequent occasion before one of the very experienced judges who handle cases of this kind in the Queen's Bench Division that more evidence might be sought to be adduced depending on the view that this court takes on the central issue of law."
"pursuant to the court's general powers of case management under CPR 3.1, alternatively in the exercise of the court's inherent jurisdiction, that:
(1) this claim be stayed pending the discontinuation of the funding of the claim on the basis of a CFA;
(2) this claim be stayed pending the obtaining of ATE insurance to cover the defendants' costs of the claim in the event that the defendant successfully defends it; and
(3) in the event that the claim continues to be funded on the basis of a CFA, the claimant's recoverable costs of this claim be capped in an amount that is proportionate in all the circumstances of the claim.
Further or alternatively, this matter be remitted to the High Court for a further hearing to determine the appropriate order consequent on the judgment of this court."
Mr Caldecott, for his part, made it clear that he would be inviting the court to take a dynamic case management approach to cap the costs and ensure that they were proportionate, rather than leaving such matters to assessment after the event. He was not pursuing the matter suggested in (2) above.
The request for further information.
"1.1 Before making an application to the court for an order under Part 18, the party seeking clarification or information (the first party) should first serve on the party from whom it is sought (the second party) a written request for that clarification or information (a Request) stating a date by which the response to the Request should be served. The date must allow the second party a reasonable time to respond.
1.2 A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.
4.1(1) If the second party objects to complying with the Request or part of it or is unable to do so at all or within the time stated in the Request he must inform the first party promptly and in any event within that time.
4.2(1) There is no need for a second party to apply to the court if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with paragraph 4.1(1) above.
(2) Where a second party considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he had taken that view."
The claimant's witness statement
"32.4(1) A witness statement is a written statement signed by a person which contains the evidence, and only that evidence, which that person would be allowed to give orally.
(2) The court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of act to be decided at the trial."
"20.1 A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence
(2) a witness statement
does not comply with Part 32 or this practice direction in regard to its form, the court may refuse to admit as evidence and may refuse to allow the costs arising from its preparation. "
"(3) a witness statement should be as concise as the circumstances allow, inadmissible or irrelevant material should not be included;
(4) the cost of preparation of an over-elaborate witness statement may not be allowed."
Costs Estimates and Costs Capping Orders
"6.1 This section sets out certain steps which parties and their legal representatives must take in order to keep the parties informed about their potential liability in respect of costs and in order to assist the court to decide what, if any, order to make about costs and about case management.
6.2(1) In this section an 'estimate of costs' means
(a) an estimate of base costs (including disbursements) already incurred; and
(b) an estimate of base costs (including disbursements) to be incurred,
which a party intends to seek to recover from any other party under an order for costs if he is successful in the case. ('Base costs' are defined in paragraph 2.2 of this Practice Direction.)
(2) A party who intends to recover an additional liability (defined in rule 43.2) need not reveal the amount of that liability in the estimate.
6.3 The court may at any stage in a case order any party to file an estimate of base costs and to serve copies of the estimate on all other parties. The court may direct that the estimate be prepared in such a way as to demonstrate the likely effects of giving or not giving a particular case management direction which the court is considering, for example a direction for a split trial or for the trial of a preliminary issue.
6.4(1) When a party to a claim which is outside the financial scope of the small claims track, files an allocation questionnaire, he must also file an estimate of base costs and serve a copy of it on every other party, unless the court otherwise directs. The legal representative must in addition serve an estimate upon the party he represents.
(2) Where a party to a claim which is being dealt with on the multi track files a pre-trial check list (listing questionnaire), he must also file an estimate of base costs and serve a copy of it on every other party, unless the court otherwise directs. Where a party is represented, the legal representative must in addition serve an estimate on the party he represents.
6.6 On an assessment of the costs of a party the court may have regard to any estimate previously filed by that party, or by an other party in the same proceedings. Such an estimate may be taken into account as a factor among others, when assessing the reasonableness of any costs claimed."
"Base costs" means costs other than the amount of any additional liability (CPD, para 2.2).
"take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."
"10 I am very concerned that without my intervention the costs in this particular case will spiral out of control, if they have not done so already. I intend to do what I can in the time remaining to ensure that they remain proportionate
11 I am satisfied that this case is a classic example of litigation, driven by the lawyer acting for the claimants, in which there is a real risk that costs have been and will be incurred unnecessarily and unreasonably
12 In summary, I fear that [the claimants' solicitor] is, at the very least, over generous with her time and with the time of her staff in planning the preparation of these actions for trial."
"We recognise that the use of CPR 43 PD para 6.6 to control costs by taking estimates into account at the assessment stage is not the most effective way of controlling the cost of litigation. It seems to us that the prospective fixing of costs budgets is likely to achieve that objective far more effectively."
"A second aim was to improve access to the courts for members of the public with meritorious claims. It was appreciated that the risk of incurring substantial liabilities in costs is a powerful disincentive to all but the very rich from becoming involved in litigation, and it was therefore hoped that the new arrangements would enable claimants to protect themselves against liability for paying costs either to those acting for them or (if they chose) to those on the other side. A third aim was to discourage weak claims and enable successful defendants to recover their costs in actions brought against them by indigent claimants."
" I would not wish to discount either the risk of abuse or the need to check any practices which may undermine the fairness of the new funding regime. This should operate so as to promote access to justice but not so as to confer disproportionate benefits on legal practitioners or impose unfair burdens on defendants "
"65 (1) Unless otherwise agreed by the parties, the tribunal may direct that the recoverable costs of the arbitration, or of any part of the arbitral proceedings, shall be limited to a specified amount;
(2) Any direction may be made or varied at any stage, but this must be done sufficiently in advance of the incurring of costs to which it relates, or the taking of any steps in the proceedings which may be affected by it, for the limit to be taken into account."
" that if either party wishes to make any application to the court that may significantly increase the costs in this action, it must first apply to the court in writing for a direction varying this order and serve notice of its application on all the other relevant parties;
All relevant parties must file and serve up to date estimates of costs pursuant to Section 6 of the Costs Practice Direction within days of such notice being given;
The court will then decide whether and to what extent it will vary this direction before it permits the application to be issued."
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others "
"In modern litigation, with the emphasis on proportionality, there is a requirement for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which would be necessary and appropriate to spend on the various stages in bringing the action to trial and the likely overall cost."
Lord Justice Jonathan Parker:
Lord Justice Maurice Kay: