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
		31 October 2012

Mr Justice Eady :

1. On 5 October 2012 I heard an application on behalf of News Group Newspapers Ltd for summary judgment in this libel action pursuant to CPR Part 24; alternatively to strike out the particulars of claim in accordance with CPR 3.4. The application was dated 6 June of this year, having superseded an earlier application to similar effect dated 15 November 2011, which had been previously adjourned. The Defendant's application was effectively mirrored by the Claimants' application of 17 November 2011 to strike out the Defendant's first application.
2. The claim is brought by Mr and Mrs Ismail and was originally framed in defamation, breach of confidence and misuse of private information. All such causes of action were said to arise from an article published in The Sun newspaper dated 27 July 2011 and also on the Defendant's website. It was headed "ASYLUM SEEKERS: PAY FOR US TO HAVE A HOL". The Claimants assess the worth of their claim at approximately £850,000. No injunction has been claimed.
3. At an earlier hearing on 12 January 2012 before Master Kay QC the Claimants were represented by counsel and solicitors. Although Mr and Mrs Ismail, who now act in person, wish to put the clock back, there was a formal withdrawal before the Master of the claims in misuse of private information and breach of confidence. The plea of malice was also withdrawn. Since the legal representatives had, at the very least, ostensible authority to make such concessions on the Claimants' behalf, and they were in the circumstances correctly made, I can see no reason for permitting the Claimants now to resile from those withdrawals. At that stage, they were given 14 days within which to serve draft amended particulars of claim. Later drafts were served, on respectively 27 January and 6 March 2012, but these were not accepted by the solicitors acting on the Defendant's behalf as complying with the rules. In any event, Mr and Mrs Ismail now wish to revert to the original form of pleading.
4. Meanwhile, in a letter of 20 March 2012, the Defendant's solicitors had put forward a proposal for having the issue of liability made the subject of arbitration. The proposal was rejected the very next day.
5. The background to the article was as follows. It was founded upon information contained in the claim form and particulars of claim in a different action, which had been brought by the Claimants against the UK Border Agency (it has been conveniently referred to as "the UKBA case"). The article was derived from those documents which were, of course, available for public inspection at the time in accordance with CPR 5.4(c)(1)(a).
6. As it happens, the UKBA case was subsequently struck out on 12 April 2012 by Singh J, when he also imposed an extended civil restraint order in these terms:

"You be restrained from issuing claims or making applications in any court specified below concerning any matter involving or relating to or touching upon or leading to the proceedings in which this order is made without first obtaining the permission of Mr Justice Singh OR (if unavailable) Mrs Justice Sharp, Mr Justice Simon or Mr Justice Beatson."

Technically, it could be argued that the Claimants' application in these proceedings concerned "any matter involving or relating to or touching upon or leading to the proceedings in which this order is made". Yet Mr Wolanski, who represents the Defendant, has made it clear that he takes no point before me based on the ECRO. In any event, the Claimants are making attempts to have it overturned.

7. For some reason, an attempt had been made to join the UKBA as a Part 20 Defendant in the current proceedings, but that was rejected by the Master in an order of 1 August 2012.
8. The article complained of was in the following terms:

"ASYLUM SEEKERS: PAY FOR US TO HAVE A HOL

EXCLUSIVE by JOHN KAY

Chief Reporter

TWO asylum seekers are demanding a £100,000 payout – so they can take their two kids on holiday.

The married couple are suing the UK Border Agency for 'discrimination' and claim their family cannot live on £181 a week in benefits.

In a High Court writ, Afram and Bibi Ismail say they should get an extra £50 a week in handouts.

Arguing their children have been 'deprived of their rights', the writ states: 'Their parents cannot give them enough books, toys, food and holidays which every British child is entitled to.

'Mr Ismail tried to call the UKBA to get the money paid but was always harassed and mentally tortured. He was being victimised.'

Mr Ismail, who has TB, has lived in the UK for seven years after fleeing what is thought to be an African country. He says he is a human, 'not an animal'.

His wife has lived in Britain for four years and both the couple's children were born in this country.

She had surgery at a private hospital paid for by the NHS and tried to have her travel expenses reimbursed.

She also wanted to take a law degree but was told she did not have the right to study. The couple, who live in London, say their human rights have been breached.

The writ goes on: 'The Claimants are asking for damage caused to their family, career, and children's future'.

Last night the UKBA said: 'Those with no right to be here should return home. We reject this claim and will fight this case in the courts'."

9. Mr and Mrs Ismail each made submissions to me which were courteous and restrained, but none the less impassioned. Mrs Ismail, in particular, presented a carefully researched argument which makes clear their belief that they have been unjustly treated. Unfortunately, however, their submissions did not sufficiently take into account the latitude which has long been permitted under English law for reports of court proceedings and which is now underpinned by the jurisprudence flowing from Article 10 of the European Convention on Human Rights and Fundamental Freedoms. The content of the article was based upon the pleadings in the UKBA case and, whatever the "spin" put upon them, most of the elements comprising the article are reflected in those documents.
10. Although it is inaccurate to suggest that Mr and Mrs Ismail come from an African country, this is not an allegation which is defamatory or is capable, in itself, of giving rise to any other cause of action.
11. In the light of the concessions made on behalf of Mr and Mrs Ismail before Master Kay in January, I shall proceed on the basis that the claim is now confined to defamation.
12. The UKBA case itself had been pleaded as a claim under the Human Rights Act 1998 and was based on allegations of discrimination in the handling of the claim for asylum. Mr Wolanski has listed a number of matters mentioned in the article complained of which are to be found in the particulars of claim in the UKBA case:

i) On the claim form itself the Claimants were seeking in excess of £100,000.

ii) The claim was said to be for damages caused to the Claimants' "family, career and children's future", arising from the fact that the Claimants "have been deprived of their rights (their parents cannot give them enough books to read, toys to play, food to eat, holidays … ) which everybody's child is entitled to". Those passages were to be found in paragraph 28 of the particulars of claim. It would seem, therefore, that lack of holidays did form an element in the Claimants' complaint.

iii) Paragraph 4 of the particulars of claim referred to "discrimination" by the UKBA.

iv) Paragraph 6 referred to Mr Ismail as being harassed and mentally tortured.

v) Paragraph 4 referred to Mr Ismail having suffered from tuberculosis. Although it is true to say that the law now recognises a reasonable expectation of privacy, in certain circumstances, in relation to matters of health, the fact remains that this information was contained in the publicly available particulars of claim.

vi) Paragraph 5 referred to the Claimants as being "forced to live on an allowance of £181 per week".

vii) Paragraph 14 contended that the Claimants were entitled to an additional £50 funds per person, which had been refused. (There is some dispute as to whether it should be "per week" or "per person", but it makes little difference in the overall context.)

viii) Paragraph 18 mentioned Mrs Ismail's surgery at a private hospital paid for by the NHS. Again, in some circumstances there might have been a reasonable expectation of privacy, but the information was publicly available.

ix) Paragraph 18 mentioned an attempt by the Claimants to reclaim travel expenses to and from the private hospital.

x) Paragraph 19 records Mrs Ismail's wish to take a law degree and the fact that she had been told that she had no right to study in the United Kingdom.

13. After the publication of the article, it appears that the particulars of claim in the UKBA case were amended on or about 16 August 2011. That would, however, not affect the validity of any defence based upon documents available at the time of publication.
14. Privilege attaches to "a fair and accurate copy of or extract from any register or other document required by law to be open to public inspection": s.15 and Schedule 1, Part 1 of the Defamation Act 1996. Minor errors will not undermine such a defence. The headline was of course intended to be punchy and eye-catching. The basic facts were given a "tabloid tweak", in the sense that the passing reference to "holidays" had been rather buried away as part of a more general illustration of the family's limited circumstances; they were not actually "demanding a £100,000 payment – so they can take their two kids on holiday". But I do not regard such a gloss as falling outside the permitted leeway.
15. Whether this allegation (of which the Claimants were complaining in paragraph 10 of their original particulars of claim) is actually defamatory at all is open to argument but, in any event, it would be susceptible to a defence of justification also, since it would be regarded as substantially accurate.
16. They complained also, in paragraph 11 of their pleading, of the statement that they were suing the UKBA for discrimination. That too would appear to be essentially true.
17. In paragraph 23, objection was taken to the suggestion that they were a "burden to public funds". It has to be seen in the light of the lack of merit in their claim against the UKBA (as subsequently confirmed in Singh J's order). The litigation itself no doubt involved the expenditure of public funds. The allegation would thus be defensible on the basis of the UKBA case either by way of fair comment or justification.
18. Overall, there is no allegation contained in the article which would not be capable of being defended on the basis of the UKBA pleaded case either by way of justification or fair comment.
19. In conclusion, I accede to Mr Wolanski's application and will grant the Defendant summary judgment in accordance with CPR Part 24.