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
		17/04/2013

Mr Justice Tugendhat :

1. In this libel action the two Claimants, who are both serving prisoners, sue the police in respect of a publication in the form of a press release dated 23 December 2011, which was made available online to a limited number of potential readers, mainly journalists. The press release is headed "Three Jailed for Murder of Marvin Henry". The part of the press release of which complaint is made reads as follows:

"Three final defendants have been jailed for their involvement in the lead up to the murder of Marvin Henry. Sentencing took place at the Old Bailey on Thursday 22 December. Rory Faley of Finchley was sentenced for three years for grievous bodily harm and seven years for false imprisonment to run concurrently. Rafik Hamaizia, 19 of North Hill, Highgate was sentenced to three years for grievous bodily harm and six years for false imprisonment to run concurrently. Amir Amirani 21 of Longridge Road, Chelsea was sentenced to 30 months for grievous bodily harm and six years for false imprisonment to run concurrently…

At a previous trial heard earlier this year at the Old Bailey, two further men, McPhee and Irvani were found guilty of the murder of 17 year old Marvin Hill in Mill Hill. On 17 August 2011 Ithai McPhee 22 of no fixed address and Shervin Ivani 20 of St Albans, Hertfordshire were both handed life sentences and ordered to serve a minimum of 30 years each – they were found guilty of murder the same day. They were also sentenced to 12 years for false imprisonment and 3 years for grievous bodily harm to run concurrently. A total of 171.5 years imprisonment have been handed to all five individuals involved in Marvin Henry's murder".

2. The claim form was issued just within the limitation period, on 19 December 2012, and the Particulars of Claim are dated 7 January 2013. A Defence was served on 19 February 2013 and a Reply on 20 March 2013.
3. Meanwhile on 8 March 2013 the Defendant issued an Application Notice in which he asked for two rulings on meaning and, thirdly, for an order that the claim be struck out as an abuse of process under CPR r.3.4(2)(b).
4. In the Particulars of Claim the Claimants attribute to the words complained of the following natural and ordinary meanings, namely: (1) that each Claimant was a murderer and (2) that each Claimant was involved with four others in the murder of Marvin Henry and imprisoned for such.
5. The Defendant denies that the words complained of bear those meanings and in paragraph 5 of the defence pleads:

"If and insofar as the words in there natural and ordinary meaning bore and were understood to bear the meaning set out below, they were true in substance and in fact:

5.1 The Claimants were guilty of grievous bodily harm and false imprisonment in relation to their role in the events which led to the murder of Marvin Henry by Ithai McPhee and Shervin Irvani and the Claimants had been imprisoned for those offences.

6. Most of the facts relating to this matter are undisputed. The Particulars of Justification read:

5.2 On 9 October 2010 a friend of Marvin Henry, Jordan Gharib was held against his will in a North London flat and repeatedly assaulted by a group of youths which included the Claimants.

5.3 The Claimants pleaded guilty to charges of assault and false imprisonment of Jordan Gharib at a trial which was heard together by the charges of murdering Marvin Henry.

5.4 On 17 August the Claimants were convicted of grievous bodily harm and false imprisonments….

5.5 On 22 December 2011 the First Claimant was sentenced to three years imprisonment for grievous bodily harm and six years imprisonment for false imprisonment.

5.6 On 22 December 2011 the Second Claimant was sentenced to 30 months imprisonment for grievous bodily harm and six years for false imprisonment."

7. As the Reply makes clear, it is common ground that the First Claimant also stood trial for the murder of Marvin Henry. As it is pleaded in the Defence he was "acquitted of the charge of murder when the jury could not reach a verdict". The principal issue of fact in the case is that it is the Claimants' case that the offences of which they were convicted in respect of the assault and imprisonment of Jordan Gharib on 9 October 2010 were "wholly unrelated to Marvin Henry or the events leading to his murder".
8. Mr Forshaw makes reference to a possible future plea of qualified privilege, although none is yet on the record. It may be that when the identities of the alleged publishees are disclosed that the Defendant might be advised to apply for permission to amend to plead qualified privilege (that is one of the reasons why the plea of publication is arguably too vague as it stands). But as matters stand, I take no account of any such possible amendment.

APPLICABLE LAW

9. There is no dispute as to the principles of law to be applied in this case.
10. On abuse of process, the Arden LJ summarised the law in Cammish v Hughes [2012] EWCA Civ 1655 (see also Citation v Ellis Whittam Ltd [2013] EWCA Civ 155) as follows:

"52 This Court established in Jameel v Dow Jones that it could be disproportionate to continue proceedings to vindicate a libel, which was initially serious, if the circumstances had changed from those initially thought to apply. The test that this court laid down was whether there was a "real and substantial" tort within the jurisdiction.

53 In Jameel, there was a serious accusation made that two persons were funding terrorists. This appeared in a website publication which was immediately removed and made virtually inaccessible. It was later discovered that only three persons had ever accessed the information while it was on the website. Lord Phillips MR, giving the judgment of this Court, held:

"54 Mr Price's submissions amount, so it seems to us, to asserting that Dow Jones's failure to challenge English jurisdiction stop them from relying at this stage on arguments that could have been advanced in support of such a challenge. We do not accept this. An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. If Dow Jones have caused potential prejudice to the claimant by failing to raise the points now pursued at the proper time, it does not follow that the court must permit this action to continue. The court has other means of dealing with such prejudice. For instance, appropriate costs orders can compensate for legal costs unnecessarily incurred and relief can be made conditional on Dow Jones undertaking not to raise a limitation defence if proceedings are now commenced in another jurisdiction.

55 There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more proactive. The second is the coming into effect of the Human Rights Act 1998. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."

54 This court went on in Jameel in effect to apply the same test in relation to the statements within the jurisdiction as it would have required to be satisfied before giving permission to serve out of the jurisdiction, namely: was there a real and substantial tort within the jurisdiction?

55 In the earlier case of Schellenberg v BBC [2000] EMLR 296, Eady J held that, in deciding whether defamation proceedings should be struck out as an abuse of the process of the court, the relevant question was whether "the game was worth the candle". This approach had been approved by this court in Wallis v Valentine [2003] EMLR 175. Eady J could not accept:

"that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources."

56 Eady J accordingly put the test, which was later developed in Jameel, in an accessible way. He captured the point that, while the court must provide a remedy in a case that requires one, the process of the court should not be used in a case where the need has gone away. The expression of Eady J is illuminating and convenient. We, therefore, follow counsel in adopting the words he used to denote the Jameel test."

11. On meaning Arden LJ adopted, as judges commonly now do, the guidance summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]. It was in these terms:

"The governing principles relevant to meaning . . . may be summarised in this way:

(1) The governing principle is reasonableness.

(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) Over-elaborate analysis is best avoided.

(4) The intention of the publisher is irrelevant.

(5) The article must be read as a whole, and any 'bane and antidote' taken together.

(6) The hypothetical reader is taken to be representative of those who would read the publication in question.

(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation . . .'.

(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense'."

12. Practice Direction 53 para 4.1 provides:

"At any time the court may decide –

(1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case;

(2) whether the statement is capable of being defamatory of the claimant;

(3) whether the statement is capable of bearing any other meaning defamatory of the claimant."

13. In reaching its decision on meaning, the court must also decide whether the meaning complained of surmounts the necessary threshold of seriousness: Cammish para [38].
14. Moreover, although the Practice Direction does not say so in terms, the court may, and normally should, also determine whether any meaning which it has held to be a defamatory meaning which the statement complained of is capable of bearing is a statement of fact or of opinion: see Cammish para [43].
15. A claimant has to plead and prove that there were within the jurisdiction, people who had viewed the website: Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113 para [37]. See also Carrie v Tolkein [2009] EWHC 29 (QB) at paras [17]-[19].
16. The reason for this is that there are thousands of websites many with a mass of information. As is well known in this court, it is difficult to prove that anyone read them, unless the viewers make contact with the claimant.
17. As to damages, in John v MGN Ltd [1997] QB 586, at p607E-F Sir Thomas Bingham MR explained:

"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused."

18. Two of the most important factors in assessing damages are the seriousness of the allegation and the number of people who have read the words complained of. In some cases the identity of a single reader, such as an employer, may be as important as the number of readers.
19. The law will not permit a man to recover damages in respect of an injury to a character which he does not or ought not to possess. And previous convictions within the relevant sphere of a claimant's reputation are admissible of evidence of general bad reputation. See McPherson v. Daniels (1829) 10 B. & C. 263, 272, and Goody v Odhams Press Ltd [1966] 1 QB 333 at 340 G-341C cited by Sharp J in King v Grundon [2012] EWHC 2719 (QB) paras [32]-[33].

ABUSE OF PROCESS – EXTENT OF PUBLICATION

The evidence

20. The application to strike out for abuse of process is supported by a witness statement dated 7 March 2013 made by Mr Forshaw, the solicitor for the Defendant. No evidence in the form of a witness statement was adduced for the Claimants.
21. Mr Forshaw exhibits a printout of the press release in the form of an attachment to a letter sent to him by the Claimants' solicitor with a letter dated 3 July 2012. Amongst the passages not complained of by the Claimants (but relevant to meaning as part of the context of the article to be read as a whole) is the following:

"McPhee, Hamaizia, Faley and Irvani were arrested between 28 October 2010 – 19 January 2011. All four men were subsequently charged with Marvin Henry's murder and remanded into custody. Amirani was later arrested on 10 February 2011 and charged on 17 March 2011 with false imprisonment kidnap and serious assault, and remanded into custody."

22. Immediately under the title of the press release is a statement, which is not disputed:

"The material on this page is for media organisations only. …"

23. Mr Forshaw exhibits a part of the correspondence that had been exchanged before the issue of the claim form. The First Claimant had instructed solicitors to write to the Defendant a letter before action, which they did, on 15 March 2012. This related to two articles published on the Defendant's website on 18 and 19 August 2011. These are not the subject of this claim. However, on behalf of the First Claimant his solicitor wrote that in relation to the charge of murder

"there was a hung jury in relation to our client and Mr Faley's verdict. Thereafter the murder charges against our client and Mr Failey were dropped and no further action was taken against our client in relation to Marvin Henry".

24. The letter of 15 March 2012 goes on:

"7.2 We can also confirm that Marvin Henry's murder trial was held concurrently with a trial involving another individual, Jordan Gharib [the parties adopt different spellings of the victim's name], who was falsely imprisoned and assaulted. This attack took place approximately 3 weeks before Marvin Henry's murder and involved our client, Mr Faley, Mr Irvani, Mr McPhee and along with Amir Amirani, who was not involved in the Marvin Henry proceedings.

7.3 Whilst our client pleaded guilty of the charges of false imprisonment against Mr Gharib, as some of the other individuals denied these charges they were tried in relation to the same. We understand that the decision was taken that the trials in relation to Mr Henry and Mr Gharib should be held at the same time as a number of the same individuals were involved…

7.8 The overall impression upon reading the Publications [i.e. those of 18 and 19 August 2011 complained of in that letter] is that our client was imprisoned as a result of his involvement in the Marvin Henry murder, for which there is no bane or antidote.

7.9 You will appreciate the distinction and significance of reporting that our client was convicted of murder when he was not. You will also appreciate that the Publications have caused our clients significant distress and put his safety at risk.

7.10 Our client was forced into segregation for his own safety and has also been transferred to a different prison … (i.e. to avoid our client meeting Mr Henry's friends in the prisons serving London) as a result of the Publications…

25. On 20 April 2012 the solicitors wrote on behalf of the Second Claimant a letter before action in respect of the same two publications dated 18 and 19 August 2011. The gist of the complaint was that the publications identified the Second Claimant as an individual who was jailed in connection with the murder of Marvin Henry. The letter notes that the publications there referred to make no reference to Mr Gharib and did not distinguish between Mr Gharib and Mr Henry.
26. On 3 July 2012 the solicitors wrote on behalf of both Claimants referring back to the previous letters. In this instance the solicitors wrote to the Defendant concerning the publication dated 23 December 2011, which is the subject of this action. They note that the words complained of in this action by then no longer remained on the Defendant's website. The solicitors reiterated that the Claimants had no role in the murder of Marvin Henry. As noted above, the full printout of the press release containing the words complained of was enclosed with that letter.
27. The pleadings on the issue of publication of the words complained of is less than satisfactory on the part of both parties. For the Claimants it is simply pleaded (in para 3 of the Particulars of Claim) that "the Defendant published or caused to be published" the words complained of. In para 6(iii) the Claimants plead, in relation to damages:

"the Defendant published the press release intending that its contents would be republished by media organisations and the First Claimant and Second Claimant will rely upon such republications consequent on the press release [but none are identified in the pleading]"

28. For the Defendant it is pleaded (in para 3 of the Defence) that

"it is admitted that on 23 December 2011 the Defendant published a limited circulation press release … to local and national newspaper, news desks and crime reporters, news agencies, broadcasters, partner agencies and the office of London Mayor".

29. Thus the Claimants gave no indication of the identity or number of the alleged publishees, notwithstanding that that is one of the most important matters in any libel action, and that there is no presumption of publication of matters posted on the internet.
30. In addition to the lack of particularity in the Defendant's pleading, the admission that it contains does not sit well with the specific statements in paragraphs 15 and 26 of the witness statement of Mr Forshaw of 7^th March, that is about three weeks after the service of the Defence.
31. During the course of submissions it was made clear that the correspondence exhibited by Mr Forshaw was not complete. In particular Mr Crystal produced a copy of a letter dated 19 November 2012 written in response to a query from the Defendant. It included:

"The Metropolitan Police press release dated 23 December 2011 was provided to us by a media organisation following the submission by us of a letter of claim to that media organisation. The media organisation sought to rely upon a statutory qualified privilege defence under Section 15 paragraph 9 of Schedule 1 part 2 of the Defamation Act 1996 as to the media article being a fair and accurate copy of a notice issued for the benefit of the public on behalf of an authority performing a government function".

32. The implication of this was that there had been at least one republication to the public at large in the press, but no information about that is available to the court, or, I am told, to the Defendant.
33. Mr Forshaw for the Defendant wrote two letters on 20 November 2012, one in respect of each Claimant. They are similar in their terms. The letters do not refer to the Claimants' solicitor's letter of 19 November but do refer to the earlier letters dated 21 March and 3 July 2012. It may be that the parties' letters crossed in the post.
34. In relation to the question of the extent of publication, each of the letters dated 20 in November 2012 included the following:

"In relation to the press release [dated 23 December 2011] our understanding is that this document was prepared in order to brief other media agencies about the convictions of the Claimant and his associates and was not accessible by the general public. In those circumstances we have asked you to provide us with information as to how you gained access to this document. To date you have failed to respond".

35. In relation to the substance of the words complained of in the press release dated 23 December the letters of 20 November include the following:

"It is accepted that the headline … '3 Jailed for Murder of Marvin Henry" is inaccurate. We would contend, however, that the text within the article is not …

On any analysis the murder of Henry and the false imprisonment and assault of Gharib were linked. Gharib was one of Henry's close friends. It was the prosecution case that he was held against his will and assaulted by associates of Irvani, including your client when he refused to agree to set up Henry. Two weeks later Marvin was murdered. It is facile to assert, as you do, that both offences were prosecuted together simply because they involve the same group of defendants.

That said, we would re-emphasise that publication had a limited circulation to the media and so far as we can ascertain none of the subsequent reports of the convictions in the media made any suggestion that the Claimant was sentenced for the murder of Henry…"

36. In his witness statement Mr Forshaw again accepts that the headline of the press release of 23 December 2011 was in error in stating that the Claimants had been jailed for the murder of Marvin Henry. So much is now common ground. He also states (in paras 4 and 24 of his witness statement):

"Marvin Henry was involved in a gang feud with an associate of the Claimants, Shervin Irvani. Mr Gharib was apparently seen as a means of getting to Marvin Henry, although the false imprisonment did not result in Mr Henry being accosted. He was eventually murdered by Shervin Irvani and Ithai McPhee, another of the Claimants' associates, on 27 October 2010, some three weeks after Jordan Gharib was held against his will…

The factual position is that the Claimants pleaded guilty to falsely imprisoning and assaulting a man, along with their associates, with the intention of entrapping a friend of that man to settle a score against him".

37. I asked Mr Hirst in the course of submission whether there was a basis of plea or other transcript to support Mr Forshaw's statement, but no other information has been put before the court, other than the bare admission that the Claimants pleaded guilty to the offences for which they were sentenced.
38. Mr Forshaw goes on to say, what is not common ground, that the error in the headline was contradicted by the text in the press release which he says accurately set out the offences for which the Claimants had been sentenced and, he says, that this was their involvement in the lead up to the murder of Marvin Henry.
39. Mr Forshaw then turns to the issue of extent of publication. He states that the press notice was never published to the general public, but was part of a series of press notices published on a website for specialist journalistic and crime-reporter readership in a form such that each press notice is available only for a short duration after which it "drops off" the website. He lists the news media which have access to the website. He exhibited the form of the website in which it appeared at the date of his statement, to demonstrate that the press releases on the Defendant's site do indeed 'drop off' after a short period of time.
40. Mr Forshaw states that

"the Claimants offer no evidence whatsoever that the press notice dated 23 December 2011 was actually published to anyone… [it] was only available online for a short period of approximately one month… the Claimants have not suggested that any media report named them as having been responsible for the murder of Marvin Henry, and I can confirm that investigations by this firm found none… [para 15] … furthermore, the width of any publication is a relevant factor to any consideration of abuse of process. The court must consider all the circumstances of the claim and the publication. In this instance, the press notice complained of was published for a comparatively short period of time of around a month. There is no evidence that any of those with the ability to access the press notice did so… there is no evidence that any report identified either of the claimants in the manner pleaded in the Particulars of Claim, namely as a murderer of Marvin Henry. … [para 26]"

Discussion

41. Mr Crystal explained it was on account of the terms of paragraph 3 of the Defence the Claimants did not see the need to respond to the witness statement of Mr Forshaw. He relied on the admission on the pleadings.
42. However, in the light of that witness statement, I invited submissions on the abuse of process argument and in particular on the extent of publication, before hearing argument on the other point. If the action is to be struck out, the issues between the parties on meaning do not arise.
43. At that stage Mr Crystal indicated that the Claimants would be in a position, if given the opportunity, to amend the Particulars of Claim, and to adduce evidence of substantial publication, that is publication in the technical sense of substantial readership, of the press release of 23 December, and of re-publications in the media of the allegations complained of.
44. Subject to that indication, and on the material which is in fact before the court, I would have struck out the claim. I would have struck it out, first, on the ground that there was no evidence of past publication to a significant number of readers such as to constitute a real and substantive tort, and, second, because of the admission by the Defendant that the headline of the press release complained of was inaccurate, and that the Claimants had not been jailed for the murder of Marvin Henry. That, and the undisputed evidence that the website was for current events, and that the words complained of were no longer accessible, would have led me to the conclusion that there was no real likelihood that the Defendant would repeat that allegation. So no injunction would be likely to be granted. Of course, in some cases, even a publication to just one reader may amount to a real and substantial tort. But on the evidence in fact before the court, this does not appear to be such a case.
45. It is to be inferred from the fact that the Claimants had obtained a copy of the press release that there must have been at least one publishee of the words complained, and the admission in para 3 of the Defence was inevitable to that extent.
46. However, because the admission in para 3 of the Defence was not limited, and upon hearing Mr Crystal state that the Claimants expected to be in a position to apply for permission to amend the Particulars of Claim to plead a more extensive readership, I indicated that any order I might make on the application to strike out would provide the Claimants with an opportunity to make such an application (if the amendment was not agreed) before such an order to strike out the claim would take effect.
47. Mr Hirst also advanced his argument on abuse of process on a separate and independent basis, namely that given the very serious offences of grievous bodily harm and false imprisonment to which the Claimants had pleaded guilty, and for which they had been sentenced for a total of six years each, they had no reputation to lose, or none which would make it just or proportionate that this claim be allowed to proceed. Before considering this argument I shall turn to the application on meaning.

MEANING

48. In support of the Claimants' case on meaning Mr Crystal points not just to the headline ("Three Jailed for Murder of Marvin Henry") but also to the sentence "A total of 171.5 years imprisonment have been handed to all five individuals involved in Marvin Henry's murder".
49. In the light of that submission I accept without hesitation that the words complained of are capable of bearing the meaning that each Claimant was involved with four others in the murder of Marvin Henry, and imprisoned for such.
50. However, I do not accept that the words complained of are capable of meaning that each or either of the Claimants was himself a murderer, that is to say guilty of murder. It is obviously possible to be involved in a murder in a way that involves guilt only for some lesser offence. Whether or not the Claimants' guilt of the offences upon Mr Gharib could also be properly said to be involvement by them in the murder of Marvin Henry could depend upon whether the prosecution case (as described in the Defendant's letters of 20 November 2012) could be proved.
51. I accept Mr Hirst's submission that the text of the press release of 23 December 2011 is specific as to the offences in respect of which each of the individuals named was sentenced. The text of the press release makes it unambiguously clear that the two accused who were found guilty of, and sentenced for, murder were McPhee and Irvani, each of whom were ordered to serve a minimum of 30 years of the life sentence imposed on him for the offence of murder. The text of the press release makes equally clear that the other sentences were all in respect of offences grievous bodily harm or false imprisonment, and thus not an offence of murder.
52. The press release is not a legal document, and the hypothetical putative reader is a person engaged in journalism and not a lawyer. In ordinary language the words "their involvement in the lead up to the murder" and "involved in Marvin Henry's murder" are, in that context, not capable of being understood to mean that either of the Claimants was himself guilty of murder.
53. As already noted, in the application notice the Defendant asks, secondly, for a ruling that the actual meaning of the words complained of is the meaning set out in para 5.1 of the Defence. Mr Crystal noted that a ruling on actual meaning is not a ruling of a kind envisaged in the Practice Direction 53 para 4.1.
54. This is not a case in which either party has applied for trial with a jury. Where a trial is to be by judge alone there is, as Mr Hirst rightly submits, much to be said in favour of the Judge making a ruling on actual meaning at an early stage. However, Mr Crystal did not agree to my making a ruling on actual meaning of the words complained of, and he explained the difficulties of taking instructions from clients who are serving long custodial sentences some distance from the Royal Courts of Justice.
55. Mr Crystal was also critical of the formulation of the meaning in para 5.1 of the Defence. He notes that the Defendant in his Defence does not adopt the prosecution case as recorded in Mr Forshaw's letters of 20 November 2012, namely that Mr Gharib was held against his will and assaulted by men including the Claimants when he refused to agree to set up Marvin Henry. There is no reference in the Defence to setting up Marvin Henry, or to what Mr Forshaw states in paras 4 and 24 of his witness statement. It is thus, submits Mr Crystal, unclear what relationship is intended to be conveyed in the meaning pleaded by the Defendant.
56. In my judgment there is force in Mr Crystal's submission as to the lack of clarity of the meaning pleaded by the Defendant. The relevance of the alleged friendship between Mr Gharib and Marvin Henry is unexplained. A purely chronological relationship would be irrelevant, because it would not be defamatory of the Claimants to allege that a friend of their victim had been murdered three weeks after they had attacked and imprisoned their victim. It is only a defamatory meaning that calls for a defence of justification. If what was to be relied on was that the Claimants had been parties to a conspiracy to murder, or some other offence, then that would have to be pleaded with the clearest particularity, and supported by the evidence required for such a serious allegation.
57. I would decline to hold that the meaning pleaded by the Defendant was the actual meaning of the words complained of, on that ground alone, without the need to consider any other reason why I should or should not make a ruling on actual meaning. However, this does not mean that I strike out para 5.1 of the Defence. I have not been asked to do that. It will be for the Defendant to consider whether, and if so what, response to make to the criticisms of their pleading advanced by Mr Crystal.

ABUSE OF PROCESS – REPUTATION

58. In support of his submission that the Claimants have, in the light of their pleas of guilty, no reputations to lose, Mr Hirst relied, amongst other cases, on Williams v MGN Ltd [2009] EWHC 3150 (QB) (the claimant had been convicted of murder and complained of an allegation that he was the henchman of a man called Gunn) and King v Grundon [2012] EWHC 2719 (QB) (the claimant had been convicted of kidnapping and complained of an allegation that he was an armed kidnapper).
59. Mr Crystal submitted that those cases were both distinguishable. Unlike the present case, the allegations in Williams and King about which the claimants in those actions complained were allegations of criminality which were less serious, or in any event not more serious, than the crimes in respect of which the claimants had convictions: see King at paras [39] and [48]. In the present case it is the other way round. The Claimants are not convicted of murder (and the Second Claimant has never been charged with murder). As Mr Crystal rightly submits, murder is the most serious offence known to the law. A claimant convicted even of such serious offences and those of which these Claimants have been convicted may (at least arguably) be defamed by allegation that he has been involved in the more serious offence of murder (if that is what the words complained of are held to mean).
60. Up to this point I accept the submissions of Mr Crystal. In my judgement an allegation of an involvement in murder may be significantly more serious than an allegation (admittedly true) of involvement in, or commission of, offences of false imprisonment and grievous bodily harm.
61. However, that does not seem to me to be the end of the matter.
62. In the letter dated 3 July 2012, which is the letter before action in relation to the words the subject of this claim, solicitors for the Claimants reiterate their requirement that the Defendant make proposals in relation to the remedies sought in the letters dated 15 March and 20 April 2012. The remedies sought in those letters included withdrawal and apology, an undertaking to desist from further publication of the allegations complained of and payment of damages and costs. The Claimants also asked for a statement in open court.
63. What the Claimants have so far achieved represents a substantial measure of vindication. In the letters of 20 November the Defendant accepted that it was inaccurate to state that the Claimants had been jailed for the murder of Marvin Henry. Moreover, this judgment publicly records that concession.
64. However, there can be no doubt, as the Defendant pleads in para 6 of his defence, that if the Claimants, or either of them, are entitled to any damages, such damages will fall to be assessed having regard to the reputations which they actually possess, namely the reputations of individuals who have been sentenced to six years imprisonment in total for offences of false imprisonment and grievous bodily harm.
65. A statement in open court is not a remedy which a court can order. It is something which a court can only permit. Nor can a court order an apology. A defendant may in many cases choose to apologise and agree to a statement in open court with a view thereby to reducing the damage. In the present case I see little which a statement in open court would afford to the Claimants by way of benefit, in addition to what is afforded by the statements in this judgment, even if the Defendant were minded to join in the making of such a statement.
66. In the light of the concession made in the letters of 20 November and recorded in this judgment, I see no real risk that the Defendant will repeat the allegation that either of the Claimants is a murderer. It is not in issue that the words complained of had dropped off the website before the letter of 2 July 2012.
67. The main outstanding issue of liability for a trial, if there is to be one, is whether the words complained of actually mean that either of the Claimants was involved in the murder of Marvin Henry and, if so, whether the Defendant can properly advance a relevant plea of justification.
68. While I have accepted that Mr Crystal's submissions as to the Defendant's pleaded meaning have force, I have not been asked to, and I have not struck out any part of paragraph 5 of the Defence. So I express no view as to the prospects of success of the parties on liability.
69. But I do repeat that the prospects of success of the Claimants in achieving any substantial award of damages are seriously compromised by the convictions for which they are now serving prison sentences. The purpose of an award of damages in defamation is not just to compensate for injury to feelings and reputation already suffered, but also to enable a successful claimant to "to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge" (Broome v Cassell & Co [1972] AC 1027 at 1071c-1072a). In cases where vindication is afforded in the reasoned judgment of a judge, the contents of the judgment go some way towards achieving that aim (in a way that the unreasoned judgment of a jury never could). See Cammish at paras [60]-[61].
70. However, unless and until the Claimants have had an opportunity to plead in full their case on the extent of publication, and republication, of the words complained of, it would not be just for me to reach a conclusion as to whether their remains anything to be achieved for the Claimants in this action which would make it just and proportionate for the action to be permitted to proceed.

CONCLUSION

71. I invite the parties to agree the terms of an order. In substance it will provide that both Claimants' claims be struck out unless amended (by agreement) or unless an application for permission to amend is made within a time to be specified. I decline to determine the actual meaning of the words complained of at this stage (the issue of actual meaning may be reviewed before any trial). I rule that the words complained of are not capable of meaning that either Claimant is guilty of murder, but that they are capable of meaning that each Claimant was involved with four others in the murder of Marvin Henry and was imprisoned for such.