England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London. WC2A 2LL
		7 October 2003

MR. JUSTICE EADY:

1. Following the pre-trial review in this libel action which is due to be tried in December, I am now required to rule on two outstanding matters, namely, (1) an issue of meaning and (2) questions on the admissibility and relevance of eleven witness statements served on the Claimants' behalf, and accompanied by Civil Evidence Act notices in May of this year.
2. The claim is founded upon an article appearing in the Wall St. Journal (Europe) for 6 February, 2002 entitled "Saudi Officials Monitor Certain Bank Accounts. Focus Is On Those With Potential Terrorist Ties". I am told that there is a readership of the order approximately of 90,000 in this jurisdiction. The author is Mr. James Dorsey. As it happens, it is the same article which forms the subject matter of the claim by the Al Rajhi Banking & Investment Corporation and has received detailed consideration in two earlier judgments in those proceedings (see [2003] EWHC 1358 (QB) and [2003] EWHC 1776 (QB), handed down respectively on 12 June and 21 July, 2003).
3. This claim is brought by Mohammed Abdul Latif Jameel, the First Claimant, and Abdul Latif Jameel Co. Ltd., the Second Claimant, who allege that they are referred to in, or identifiable from, the article, which is a matter of dispute, and that the words bear the following defamatory imputation: "In their natural and ordinary meaning, and in the context in which they appeared, including the headlines on the front page and page 4, the said words meant, and were understood to mean, that the Claimants were reasonably suspected of having terrorist ties and of funnelling funds to terrorist organisations, and had therefore been included on a list of bank accounts which were required by the US law enforcement agencies to be closely monitored by the Saudi Arabian Monetary Authority".
4. In the Al Rajhi case, much attention was focused on the pleaded meanings, and especially upon various formulations of Lucas-Box meanings which the Defendants wished to justify. In this case, Mr. James Price Q.C. for the present Claimants has referred to my earlier judgment of 21 July, and submitted that the position is analogous. Nevertheless, I must not forget that this is a different claim between different parties.
5. The present application is somewhat unusual in that both parties are inviting me to "delimit" the possible meanings in advance of the trial, to borrow a phrase from the judgment of Hirst, LJ in Mapp -v- News Group Newspapers Ltd. [1998] QB 520. What is unusual is that the invitation comes in advance of trial and when there is (a) no suggestion that the article was incapable of bearing the Claimants' meaning, set out above, and (b) no plea of justification on the record, and thus no Lucas-Box meanings to be considered.
6. Mr. Robertson Q.C., appearing for the Defendants, as he did in Al Rajhi, submits that the words are capable of a lesser defamatory meaning than that contended for by the Claimants (assuming, of course, that the Claimants are able to establish that the words did indeed refer to them).
7. Mr. Price argues that, as I held in Al Rajhi, the words are only capable of conveying that there are "reasonable grounds to suspect" the Claimants of having terrorist ties and of funnelling funds to terrorist organisations. Mr. Robertson argues that there is room here for the lowest of the three tiers of gravity identified by the Court of Appeal in Bennett -v- News Group Newspapers [2002] EMLR 39 and Chase -v- News Group Newspapers [2003] EMLR 218 - namely, that there are grounds merely for investigation. This corresponds to the issue on which I ruled in Al Rajhi on 21 July (at paragraphs 8 to 12). There I held, in the context of various proposed Lucas-Box meanings, that the article was only capable of conveying the more serious of the two imputations, i.e. that there were in the case of that Claimant "reasonable grounds to suspect".
8. The tests to be applied on any such application are clear from a number of Court of Appeal authorities, including, for example, Gillick -v- BBC [1996] EMLR 267 and Mapp (cited above). Mr. Robertson relies primarily upon the distinction that there is no allegation corresponding to paragraph 11 of the article which refers specifically to the Al Rajhi group in the following terms: "The US officials said the accounts of Al Rajhi Banking and Al Rajhi Commercial Foreign Exchange were being monitored because of suspected associations of the companies in the past. A spokesman for Al Rajhi Banking, Ahmed Suleiman Ahmed, said, 'We maintain that our names have not come up; nor have the names of members of the Al Rajhi family'".
9. On the other hand, Mr. Price invites particular attention to paragraph 4 of the article: "The US officials said the US had agreed not to publish the names of Saudi institutions and individuals provided that Saudi authorities took appropriate action. Many of the Saudi accounts on the US list belong to legitimate entities and businessmen, who may, in the past, have had an association with the institutions suspected of links to terrorism, the officials said. The officials said similar agreements had been reached with authorities in Kuwait and the United Arab Emirates. 'This arrangement sends out a warning to people', the US official said". That is general, and not confined to Al Rajhi. It would therefore, he submits, reflect upon any identifiable person, including these Claimants. Moreover, it is not appropriate to expect readers to draw sophisticated distinctions between some of the named bodies and others. After all, the headlines will undoubtedly be taken as of general application. Also, the citation in paragraph 5 of the article, attributable to the Saudi government, states, "In a recent report to the United Nations about combating terrorism, however, the Saudi government said, 'The Kingdom took many urgent executive steps, amongst which SAMA sent a circular to all Saudi banks to uncover whether those listed in the suspect lists have any real connection with terrorism'".
10. Accordingly, the remarks I made in paragraph 11 of my earlier judgment would appear to be apposite here: "Since the focus is already declared to have been on those with potential terrorist ties, it is difficult to comprehend how a fair-minded reader is supposed to construe 'ties', 'links', or 'associations' variously referred to throughout the article as being other than the subject of at least reasonable suspicion - that is to say, as giving rise to suspicion of knowing or negligent involvement - or because the possibility has also to be admitted of the use of the Claimants' accounts or facilities being unwitting - of negligently permitting circumstances to arise where they were so used".
11. As the parties invite me to rule at this stage, my conclusion is that the words complained of in these proceedings are not capable of bearing a lesser defamatory meaning than that of "reasonable grounds to suspect", reflected in the second tier of gravity identified by Lord Justice Brooke, LJ in Chase at paragraph 45.
12. The other issue to be resolved is that of the eleven witness statements which were served with Civil Evidence Act notices some months ago, and in respect of which no counter-notices have been served. They consist of a statement from the Saudi Arabian Monetary Authority (SAMA) which was said in the article to be the body "monitoring", and of ten others deriving from other Saudi banks. I am told that the Claimants have, as yet, not quite covered all the Saudi banks, but these statements certainly embrace the great majority. The object of that exercise is to demonstrate to the jury that the central allegation of the article is quite simply wrong, since no such monitoring was taking place, whether of the Claimants or at all. Whether the statements achieve that objective is another question. Mr. Robertson has submitted that upon close analysis they do no such thing. Nevertheless, for the moment, I am concerned with the question of principle as to whether the Claimants should even be permitted to try to demonstrate falsity - in a case where there is no plea of justification. There is a presumption that defamatory words are false, unless and until the relevant defendant proves them to be true.
13. Here, because there is no plea of justification, the presumption will prevail. Why, therefore, it may be asked, should the Claimants be allowed to adduce evidence which appears to be directed to the unnecessary exercise of disproving the truth of the libel? Could it conceivably be relevant to the issue of qualified privilege? Intuitively, one would answer in the negative. Moreover, some consideration was given to the question by the Court of Appeal in GKR Karate -v- Yorkshire Post (No. 1) [2000] EMLR 396 at 406. It is possible to derive authority from that decision for at least these two propositions: (1) it is not relevant to qualified privilege whether the publication was true or not; (2) it is not relevant to speculate what further information the publisher might have discovered if he had made more extensive inquiries.
14. Mr. Price, however, seeks to distinguish GKR Karate on the facts, and to argue that there are features in the present case not addressed by the Court of Appeal at that time. In particular, he does not seek to adduce the relevant witness statements to achieve either of the impermissible objectives to which the Court of Appeal referred. He has identified a number of other purposes to which he argues no objection can be taken. For one thing, he wishes to refute assertions in the evidence of Mr. Dorsey, who describes a meeting with an unidentified diplomatic source. He claims that the source told him things about the monitoring of certain bank accounts, but Mr. Price submits that he should be allowed to introduce these statements to show that the conversation simply cannot have gone as Mr. Dorsey suggests. He says also that there is nothing in GKR inconsistent with his taking that course.
15. In order to understand the Claimants' case in this context, it is necessary to refer briefly to passages in two of the Defendant's witness statements. First, I go to a passage in that of Mr. Dorsey: "The US diplomat told me that the US had two weeks earlier distributed a new list of 140 names world-wide, including to Saudi Arabia, that included four Saudi charities and eight businesses . . . Asked whether accounts of Abdul Latif Jameel were being monitored, the diplomat briefly consulted his file again and said, 'Yes'".
16. Next, I go to paragraph 20 in the statement of Mr. Glenn Simpson: "Fifteen months have passed since the publication of the article. I am today convinced that it was accurate."
17. Against that background, Mr. Price summarised his case in his skeleton argument at paragraph 38 as follows: "(1) This is not a GKR Karate -v- Yorkshire Post [2000] EMLR 396 case. These statements are not introduced for the purpose of showing what further checks would have shown, or to undermine the objective reliability of the Defendant's sources. It is introduced to rebut Mr. Dorsey's account of what occurred. The Claimants' case is that Mr. Dorsey either misunderstood the position or his memory is at fault for the reason that what he says took place cannot have occurred. In very short summary, the evidence that the US diplomat was privy to the relevant discussions between the US authorities and SAMA, and that his file relating to the matter contained documents showing that the bank accounts of, among others, the ALJ Group were being monitored, cannot be right because it is affirmatively established that the accounts were not being monitored. If permitted, we would also wish to put these statements to some of the Defendant's witnesses in the proper manner in cross-examination to challenge the witnesses' evidence that the matter - in particular, the naming of names - was really of pressing public interest.

"(2) They support the Claimants' aggravated damages claim. It is particularly hurtful for the First Claimant that the Defendant has refused, and continues to refuse, to apologise for, or retract, these very serious allegations when, as the Claimants wish to prove, the falsity of the central allegation in the article has been conclusively shown to the Defendants from the horses' mouths. In this context it is important to bear in mind that the evidence from the Governor of SAMA, Hamad Al Sayari, authoritatively refuting the allegations is part of a nexus of denials stretching back to the evening of the date of publication of the article complained of when the First Claimant was so concerned that he spoke to Al Sayari on the telephone, and which includes the press release issued by SAMA shortly afterwards.

"The Claimants wish to invite the jury to contrast all of this evidence with the offensive response to the Claimants' solicitors' complaint sent by the Defendant's in-house lawyer on 21 February 2002 in which he effectively suggested that no-one should believe anything any Saudi official might say (see in this regard the second witness statement of Mohammed Jameel at paragraphs 6 and 9 to 10).

"(3) They rebut the Defendant's contention in paragraph 20 of the witness statement of Glenn Simpson, if that paragraph is permitted to remain, that the article was accurate - a matter on which Simpson professes himself to be convinced."

18. I need to remember that where journalists are entitled, as a matter of law, to protect their sources there can often arise real practical difficulties for claimants seeking to challenge, test, or rebut a defence of qualified privilege based on the criteria set out by Lord Nicholls in Reynolds -v- Times Newspapers Ltd. [2001] 2 AC 127. It is obvious that where the source, or sources, cannot be identified, the tests for establishing social or moral duty on the one hand, and public interest on the other, become, to say the least, elusive. It is thus important to recognise that claimants must be permitted to probe and test the defendant's case, including the evidence of any relevant journalist in cross-examination, with such thoroughness and vigour as is compatible with not revealing the source.
19. There is always a risk that anonymous sources will acquire, in the eyes of a jury, an aura of saintliness, wisdom, or infallibility when they are not permitted to take on human form, especially having regard to the natural tendency of journalists to buff up the quality of their character or experience - for example, by using the standard description for anonymous sources, which is "impeccable". In such circumstances there is room, potentially, for injustice if the claimant is not permitted to introduce evidence capable of casting doubt on the accuracy of the journalist's evidence, or the reliability of his source of information. Here, in particular, it would be unfair to force the Claimants to rest upon the law's presumption that the words are false when Mr. Simpson, far from admitting inaccuracy, is reasserting the truth of his story with such vehemence. The impression could easily be given to the jury that the Claimants are being allowed to claim vindication under the protection of a legal technicality.
20. I am accordingly persuaded by Mr. Price that his submissions do not fail to honour the principles identified by the Court of Appeal in GKR Karate. The statements he wishes to introduce would be directly relevant to rebutting evidence to be given by Mr. Dorsey, and by Mr. Simpson, and to supporting the case on aggravated damages. How much weight is to be attached to them, and especially if the witnesses do not attend in person, is a matter for submissions to the jury. But, as a matter of principle, it seems to me that such statements are relevant and admissible.

MR. PRICE: My Lord, in the light of your Lordship's judgment, I think we have dealt with everything now. It is apparent that there will have to be a Part 2 of the PTR to deal with the outstanding matters. As regards the costs of what we have been through, since, on both the matters substantively argued, we succeeded, I would ask that we have our costs in any event.

MR. JUSTICE EADY: Costs of what exactly?

MR. PRICE: Of the hearing for yesterday and ----

MR. JUSTICE EADY: Well, there was a certain amount of filtering that went on yesterday, was there not?

MR. PRICE: There was some filtering, yes.

MR. JUSTICE EADY: Before we got down to the nitty-gritty.

MR. PRICE: Yes, that is true.

MR. JUSTICE EADY: Let me hear what Mr. Robertson has to say.

MR. ROBERTSON: It is wholly inappropriate in my respectful submission. Firstly, the PTR was equal honours - or dishonours, if you like. We reached a modus vivendi on everything except for the two issues which are totally connected with the trial. The first point would otherwise have been raised in the course of the trial as to how I could address the Jury, and was essentially a trial issue. The second question of witness statements which your Lordship, for example, ... (inaudible) ... Mr. Simpson's evidence which my learned friend is objecting to. We have held that over.

So, in my respectful submission, the points that arose from the pre-trial review were so intimately connected with the trial that the question of costs should follow the result of the trial.

MR. PRICE: Well, everything is intimately connected with the trial in a way. But, the points which were raised were argued, and we succeeded.

MR. JUSTICE EADY: I think that this is one of those cases where the costs of the issues raised and debated, and to some extent shelved on the PTR, should be costs in the case.

MR. ROBERTSON: My Lord, just a couple of housekeeping points. There were three matters yesterday in which we failed to attach a date by which they should be done. 1 November occurred in other contexts, and it may be appropriate if your Lordship would indicate ---- The three matters that we have noted are, firstly, that the Claimant and Defendant try to agree the facts for the preliminary issue on standing and reputation. That is the first matter that we have got to do. Secondly, that the Claimants decide whether, and to what extent, they are going to admit facts on public interest. My learned friend indicates that ... (inaudible) ... The third is the Defendant's disclosure requests. If your Lordship would set the date of 1 November for those three matters to be achieved, if possible ----

MR. PRICE: Yes, my Lord.

MR. JUSTICE EADY: We will say 1 November for all of those matters. Would counsel kindly draw up an order embracing all those matters?

MR. ROBERTSON: There are two other matters. Firstly, the question of leave to appeal. Your Lordship gave leave to appeal on the meaning point, which your Lordship has reiterated today. It is a matter of substantial concern, particularly, as your Lordship sees, as it is the lesser of the ... (inaudible) ... meaning that is closest to what Mr. Dorsey intended. On the same basis, I would invite your Lordship to give leave to appeal on that, and on the second point of the hearsay notice where an exception to the principle in GKR Karate seems to have been achieved.

MR. PRICE: The Court of Appeal, as your Lordship knows, specifically discourage meaning appeals. That is Point 1. I cannot remember where, but the Court of Appeal has said, "We don't want them" basically.

MR. JUSTICE EADY: I think Lord Justice Hirst may have said it, possibly in Mapp.

MR. PRICE: As regards the other one, it is essentially a trial Judge decision, regarding the admissibility of evidence. Your Lordship has identified a category of evidence which simply does not fall within the principle of GKR. In my respectful submission, if the Court of Appeal want to take it, it should be left to dine à la carte (I think that is the way it is put).

MR. ROBERTSON: The Court of Appeal's discouragement was of Claimants' meaning appeals. They made an exception where it would shut out from the trial a meaning that the Defendant wished to urge(?), particularly if that was the meaning that the Defendant intended.

MR. JUSTICE EADY: On these two matters I have come to a clear conclusion, in the light of authority, and I think it is appropriate therefore to refuse permission, but, of course, the Court of Appeal may very well show more interest.

MR. ROBERTSON: There is one final matter that I raised yesterday, and we left Mr. Price to consider - that is the question of the internet. Our position is that we want to get shot of it. We want it out of the trial. The appropriate course is for Mr. Price to discontinue, because it is all, or part of, the claim, and the claim equates with cause of action. If my learned friend refuses to discontinue, then it must follow that the Court should strike out the claim. It is not appropriate ... (inaudible) ...

MR. JUSTICE EADY: The underlying, although un-mentioned, topic here is, surely, costs, is it not? It does not seem to me to matter very much whether it is struck out or discontinued, or dismissed, because Mr. Price has indicated he is not going to pursue it. So, as of yesterday, it is not a live issue in the proceedings. It may be that there will, at some point, be an application on costs. But, from what you are saying I do not understand this to be the moment.

MR. ROBERTSON: Mr. Price has to decide, and perhaps let us know, whether he is going to discontinue and suffer the consequences, or whether we are going to have to move to strike out.

MR. JUSTICE EADY: Well, he may be suffering some costs consequences anyway, but he seems to take a firm stance on the interpretation of what is discontinuance, I think. I do not know that anybody has made any submissions about the law on this, but ----

MR. ROBERTSON: Can I refer your Lordship ---- On discontinuance, it is quite clear. It is at Volume 1, page 893. "Discontinuance terminates the claim. Admissions of discontinuance are required only in certain situations. The Claimant who discontinues is liable for the Defendant's costs -----" The effect of the rule in 38.1.1. ---- The word 'claim' was used in the sense of cause of action rather than a form of relief. Part 38 is clearly to like effect. The Claimant may discontinue all, or part of, the claim, but ... (inaudible) ... The internet claim is clearly a separate cause of action, and pleaded as such. An order to be discontinued ... (inaudible) ... The wording is mandatory. So, if my learned friend does not discontinue, then we will have to apply to strike it out at Part 2.

MR. JUSTICE EADY: Mr. Price, what do you say about this? I cannot force you to discontinue, but I suppose I could, if appropriate, strike it out.

MR. PRICE: My Lord, really, I thought we had reached the stage now at which we could do things through the front door rather than try to do them through the back door, and then having another hearing at which we incur more costs and apply to strike out something which we are not proceeding with. If an application for costs was made, I will respond to it.

MR. ROBERTSON: My Lord, I make an application for costs for the internet point. If we deal with it that way, it can perhaps be blotted out of the pleadings.

MR. JUSTICE EADY: What do you say, Mr. Price? It seems to me to be right on the face of it that the costs of, and incidental to, the internet claim up to and including yesterday - and I will hear submissions on today in a moment - should be the Defendant's.

MR. PRICE: Can I just say a word about that? I need not take your Lordship back to what the Master ordered, but we had a long argument before the Master. I was not there, but I am told there was a long argument before the Master about whether they should be ordered to give disclosure of how many hits there were on this website. ... (inaudible) ... claim is hopeless, and us saying the claim was not hopeless; we just want to know whether it is worth proceeding with. The Master said, "Well, why don't you write to WSJ.com and find out?" As usual, what has happened is that there has been nominal compliance with the order, but thereafter a total refusal to give us any information at all, including whether they have had a reply from WSJ.com. In those circumstances we have decided not to bother further with this particular head.

Now, in those circumstances your Lordship might think that the obstructiveness is on the other side's behalf, and not ours, and ... (inaudible) ... to relieve these as costs in the cause.

MR. ROBERTSON: ... (inaudible) ... with respect, is disingenuous. We have told the Claimants from Day One that we did not own the website, and the only basis -- and there is a witness statement, I am reminded, at Tab 12 of Mr. David Pettit that has been produced to explain precisely this matter ---- It is not within the Defendant's purview. It should never have been raised. I think my learned friend now concedes that. The only basis upon which someone else's internet site in another country could be held against the Defendant was on this extraordinary causality argument - that because in the Defendant's paper there appeared an advertisement for the website where, the argument was, the Defendant caused the publication of everything ... (inaudible) ... that were on that website. In fact, my Lord, if that had ever got to first base, there is no doubt that it would have been rejected because there is no authority for it, and there would be ... (inaudible) ... imposition of liability. On that basis, because there has been some - not a great deal, but some - argument in the course of the last year connected to the internet point, we apply to costs.

MR. JUSTICE EADY: Did you want to add anything, Mr. Price?

MR. PRICE: No.

MR. JUSTICE EADY: Yesterday, Mr. Price indicated that his clients were not proceeding with the internet claim in these proceedings. He gave certain reasons for it, but I need not go into those at the moment. The fact is that it is not being pursued. Therefore, Mr. Robertson submits that if not discontinued, then the claim should be struck out for the sake of clarity from the pleadings, and the costs should follow the event. Mr. Price has argued that there was a degree of obstruction on the Defendant's part in not fully complying with an order made by the Master.

It seems to me that if that argument is to be pursued, the proper way of doing it is to raise it with a view to continuing the claim. But, since the claim has been abandoned, it seems to me right that the Defendants should have their costs of, and incidental to, the part of the claim relating to the internet in any event. For the sake of good order, those allegations should be removed from the pleaded case.

Thank you very much.

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