COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE EADY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MOORE-BICK
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AZIZ & ANR
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Heather Rogers QC (instructed by Davenport Lyons) for the First Respondents
Aiden Eardley (instructed by Davenport Lyons) for the Respondents
Hearing dates : 19th May 2010
Crown Copyright ©
President of the Queen's Bench Division:
"Leila Khader is a disreputable person and a liar. You should not rely on her words because they are false and she has acted in cahoots with some other persons to pretend that a diamond bracelet had been found and was being returned to Mariam Aziz in order to embezzle money from Mariam Aziz."
Mr Dowd accepts that he had a conversation with Ms Minsky, but denies that he spoke these words.
The judge's judgment
"The modern leading authority as to the meaning of malice is Horrocks v Lowe  AC 135, 149-151. As to its pleading, there are stringent requirements imposed because malice is recognised as being tantamount to an accusation of fraud or dishonesty and must not be made on a merely formulaic basis. It is necessary to plead and to prove the facts from which malice is to be inferred, and it will not suffice to plead only facts which are equally consistent with the absence of malice as with its presence. This was established in the middle of the 19th century in Somerville v Hawkins (1851) 10 CB 583 and has been confirmed in modern times by the Court of Appeal in Telnikoff v Matusevich  1 QB 102 and in Alexander v Arts Council of Wales  1 WLR 1840. It is recognised that mere assertion will not do (see generally Gatley on Libel and Slander (11th ed) at para 30.5). A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box, or that he or she will make an admission in cross-examination."
Grounds of appeal and submissions:
a) The appellant wrote a letter of complaint to the Law Society on 28th July 2007 in which she set out the allegations which Mr Dowd was said to have made, which do not there contain the word "embezzle". The relevant part, as set out in this letter, is "that I was in cahoots with another person to get a reward or financial profit."
b) Ms Minsky's contemporaneous note of the conversation with Mr Dowd goes nowhere to establish that Mr Dowd spoke the defamatory words alleged. The only note of relevance is "Leila Khader didn't find bracelet, said it [was] another individual".
c) Mr Dowd's email of 12th April 2007 to Mr Bateman concerning his conversation with Ms Minsky goes no further than to state that there were "inaccuracies in print" and that Mr Dowd "told her the source was not to be relied on".
Thus, although, as the respondents accept, the court may be constrained (without enthusiasm) to accept for present purposes, subject to the abuse argument considered below, that the fact of the alleged first publication on the general lines pleaded is capable of being established at trial, I do not consider that there is any real prospect of a jury finding (other than perversely) that the word "embezzle" was used or that Mr Dowd accused Ms Khader of making up a story that the bracelet had been lost; and the court is further entitled to have general regard to the fact that the evidential support for a modified version of the alleged publication is suspect.
"I have already expressed the view that there is no reason in principle why a client should not give to his solicitor a general retainer authorising him to make such response to defamatory attacks upon the client as the solicitor may from time to time think appropriate. Such a retainer may authorise the solicitor to express his own views or opinions without further reference to the clients; and may authorise the solicitor to mount a counter attack in the media in response to an attack which has been made upon the client by an identified person or publication or, perhaps, in response to any future attacks. Whether or not such a retainer has been given – and if so, its terms – must, in my view, be a question of fact, to be decided on the facts of the particular case."
Excessive skeleton arguments and documents:
"I am afraid that the case is a grotesque example of a tendency to burden the court with documents of grossly disproportionate quantity and length. It is a practice which must stop. Far from assisting the court, it makes the work of the court infinitely harder. Hours had to be spent reading through Midgulf's voluminous skeleton arguments and they were largely wasted hours. It will no doubt also have added greatly and unnecessarily to the costs of the appeal."
At paragraph 74, Toulson LJ quoted from the judgment of Mummery LJ in Tombstone Limited v Raja  EWCA Civ 1444;  1 WLR 1143, where Mummery LJ explained that skeleton arguments were aids to oral advocacy, not written briefs; and that too many practitioners, at increased costs to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs.
Lord Justice Carnwath:
"And the generous reward offered by a women whose former husband's fortune reached £65 billion at its peak?
"The Queen gave her a hug and a kiss, I am told".
It is astonishing and highly regrettable that those few, trivial words have led to three years of hostile, and no doubt very expensive, litigation.
"on any reasonable reading of the article, it portrayed the first respondent as having acting in a mean and ungenerous way to the appellant who had found a very valuable bracelet to her at Les Ambassadeurs Club."
"Leila Khader didn't find bracelet, said it was another individual" "worth nowhere near £1million…"
The only other shred of contemporary evidence is from a Mr Rahr, a member of the staff at the club. He recalls a conversation with Ms Aziz at the club a few days later, when he mentioned the incident and she said that "she understood that someone else had found the bracelet".
"Leila Khader… has acted in cahoots with some other persons to pretend that a diamond bracelet had been found and was being returned to Mariam Aziz in order to embezzle money from Mariam Aziz" (emphasis added).
Thus in effect criminal conduct was being alleged.
Lord Justice Moore-Bick: