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

IN THE ROYAL COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		The Royal Courts of Justice, Strand, London England WC2A 2LL
		27 October 2009

MR JUSTICE EADY:

1. The Defendant in this libel action is Newsquest Media Group Limited which is a large, regional media group and publishes some 200 titles and also has around 180 websites. It is seeking to strike out the particulars of claim pursuant to CPR 3.4 and/or to obtain summary judgment pursuant to rule 24.2
2. The Claimant is Imran Karim and he brought the action complaining of an article published on a number of websites (but not in hard copy) and also in respect of user comments about the article which were posted to the bulletin boards on websites hosted by the Defendant. Mr Vassall-Adams has developed the Defendant's case in his written submissions and also briefly this morning. He puts the submission on the very brief footing, effectively, that there is no real prospect of the Claimant succeeding, firstly because the article itself was absolutely privileged, being a fair and accurate report of Court proceedings that was published contemporaneously, within the meaning of section 14 of the Defamation Act 1996. The proceedings in question were disciplinary proceedings of the Law Society against Mr Karim and his mother and sister.
3. As to the user comments, various points were taken by Mr Vassall-Adams, in particular that they constitute mere vulgar abuse and therefore would not be defamatory, because no ordinary fair-minded reader would take them seriously. Also there was an argument on fair comment, but the essential and I think the most significant of the arguments was that based on regulation 19 of the Electronic Commerce EC directive regulations of 2002, which came into effect in August of that year. That is in these terms. "Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider, if he otherwise would, shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where a) the service provider l)does not have actual knowledge of unlawful activity or information and where a claim for damages is made is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful or 2)upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information and b) the recipient of the service was not acting under the authority or the control of the service provider."
4. The article in question was headed "Crooked solicitors spent client money on a Rolex, loose women and drink" and it was displayed on 6 and 7 June 2008. It was purporting to report a very recent three-day hearing which had taken place before the Disciplinary Tribunal on 2, 3 and 4 June of last year. As I have said, the Claimant and his mother, Mrs S A Karim and his sister Saira Karim were before the Disciplinary Tribunal in relation to allegations of mishandling of client funds, to put it very briefly. On the first day of the hearing, Mr Karim attended but there was an application for an adjournment on the grounds of his mother's and sister's ill health. That was unsupported by medical evidence and therefore the application was, I understand, refused. Following that, Mr Karim himself took no further part in the proceedings and therefore the Tribunal proceeded to deal with the matter over the three days, as I have said, but without any response from Mr Karim himself.
5. After a considerable delay, the Tribunal gave its detailed reasons for its decision in a judgment handed down on 2 September of last year. The result however had been announced on 4 June and Mr Karim was to be struck off from the Solicitors Roll. The detailed reasons are contained in exhibit SW8 to the third witness statement of Mr Westrupp before me. From that it emerges that the Respondents were found to have stolen something of the order of £868,000 of clients' money. It was also concluded that the Claimant and his sister had used that money to fund lavish lifestyles. It was not, of course, stated that the lavish lifestyles were exclusively funded in that way but that is a minor factor.
6. Thirdly, it was found that the Respondents had been uncooperative and obstructive to the Law Society and on frequent occasions had deliberately provided information which was thought to be incomplete, less than frank or misleading. It was also concluded, and the Tribunal expressed itself in very strong terms, that the Respondents were a danger to the public, a disgrace to the profession and that they ought not to be allowed to practise. It is perhaps not surprising that the media were interested in the proceedings and ultimately in the outcome.
7. The reasons were handed down in September, some three months after the offending article was published by the Defendant, but it is relevant in this sense; that when one considers the content of the reasons it tends to confirm the accuracy of the report of the proceedings themselves which had been published earlier. The proceedings were issued on 29 January of this year without any prior contact in accordance with the pre-action protocol. That delay has caused some inconvenience because the notes of the person who was attending, from time to time in the course of the proceedings, were discarded as they regularly are after a few months. It therefore became necessary for the huge expense to be incurred of obtaining transcripts of the three day hearing and of course that led inevitably to delay as well.
8. The evidence showed that the Defendant received the claim on 5 February of this year and on the same day the articles complained of were removed, together with the related user comments. That is of significance in the context of regulation 19 which I earlier read out. Following an extension, the Defence was filed on 29 April of this year. It was later amended with the permission of the Court to include certain additional websites where it had been discovered that publication had also taken place. There was then a reply from the Claimant on 26 May.
9. This application for summary judgment was filed on 4 August and issued by the Court on 7 October. The reason for the delay is largely accounted for by the obtaining and transcribing of the audio recordings of the three day hearing. That is all explained in the witness statements before me.
10. I should perhaps also mention that reference is made in the Claimant's pleading to appeals pending against the decision of the Tribunal, which he had characterised as a 'Kangaroo Court', but I am informed that subsequently the appeal has been dismissed, effectively for want of prosecution.
11. I turn to the application which is now made before me and first of all to the application in relation to the article itself. It is submitted by Mr Vassall-Adams on behalf of the Defendant that the publication was absolutely privileged, pursuant to the provisions of section 14 of the Defamation Act 1996 in that it was a fair, accurate and contemporaneous report of legal proceedings. It is clear that legal proceedings have been in the past construed sufficiently widely to include the Disciplinary Tribunal of the Law Society, which is acting in a sense on behalf of the public. That was so held in, for example, the case of Addis v Crocker [1961] 1 QB 11.
12. The question of fairness and accuracy was addressed at no doubt considerable expense and with great care by Mr Guy Toyne, the editor of Central News on the Defendant's behalf. There is no need for me to go into his evidence in great detail but it considers the accuracy of the article as a summary of what had taken place over the three day hearing. I am quite satisfied that it is substantially accurate in its coverage.
13. The article was first published on 6 June on what is called the Croydon Guardian website and it was copied thereafter automatically on to a number of the other websites. I have no doubt in the circumstances that the publication qualifies therefore as contemporaneous, as well as being substantially fair and accurate. One point which was taken by the Claimant was that there was no mention of an explanation he had given during the course of an interview with Mr Sutton in 2005. He was investigating on behalf of the Law Society. He apparently on that occasion admitted spending money on Rolexes, loose women and drink but he said that the money had come from another source. However, the evidence before the Law Society, which is what I am concerned with, was that the funds obtained from clients had indeed contributed in large measure in a general way to the lavish lifestyle there described. It is true that the article did not reflect the explanation given some three years before, but that does not affect the substantial accuracy of the piece.
14. It is true that the evidence is rather one-sided but that was inevitable in view of the fact that neither the Claimant nor his mother or sister were taking part in the proceedings and therefore did not put their case forward. But the case was explained in painstaking detail on behalf of the Law Society and I am quite satisfied, as I say, that what was published by the Defendant reflects that (inevitably, of course, by way of summary). It is well established that what is required for a defendant to avail himself or herself of the defence is that the report should be substantially accurate; see for example Kimber v Press Association [1893] 1 QB 65 and the consideration of this topic in Gatley on Libel and Slander, 11^th edition, at paragraphs 13.37 to 13.38.
15. I turn to the user comments. It has been pointed out by Mr Vassall-Adams that, perhaps rather curiously but nevertheless interestingly, the majority of the comments posted were rather in favour of the Claimant and of his family. A number of commentators observed that he had made a useful contribution in various ways in the course of his practice, but there were three adverse comments which I need not go into. The important point for present purposes is that, whether or not they would be taken seriously by readers, the defence which is primarily relied upon is that contained within regulation 19. I am quite satisfied from the evidence that this Defendant is indeed entitled to avail itself of this defence, because it did not have actual knowledge of unlawful activity or information until it was pointed out by the Claimant in January of this year. It does not necessarily accept that the activity was unlawful anyway in publishing the article, but it was not aware of any complaint until that time. In any event, the material was taken down as I have described on 5^th February as soon as the nature of the complaint reached the Defendant. It is also clear that the recipient of the service was not acting under the authority or control of the service provider within the meaning of regulation 19.
16. It is true that regulation 19 has an application only to damages or any other pecuniary remedy; it would not necessarily be relevant to claim for an injunction, but that is a theoretical matter only so far as this claim is concerned. There is no threat of repeated publication and that does not arise for present purposes.
17. So it seems to me in those circumstances that the Defendant is entitled to rely upon that defence. I can therefore conclude, both in relation to the original article itself, for the reasons I have already addressed, and in relation to the comments made by the users, that the Claimant is unlikely to succeed. In applying that test I bear in mind of course what was said by the Court of Appeal in Alexander v the Arts Council of Wales [2001] 1 WLR 1840. That is to say, there is no realistic prospect of the Claimant succeeding on either of his claims and a jury would indeed be perverse if they were to uphold either of them. Of course, as a matter of fact, the regulation 19 defence would be considered by the judge rather than the jury, but I am quite satisfied that in any event the test for summary judgment has been achieved in the light of the evidence and submissions before me and, therefore, I will accede to the application.