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
		28 January 2013

Mr Justice Eady :

1. In this case Dana Khalil, who I understand is not resident within this jurisdiction, complains inter alia of libel and malicious falsehood in relation to allegations, contained in what purports to be a medical report, to the effect that she was not a virgin at the time of her marriage. The ceremony took place in Syria on 14 August 2008. Her husband was Dr Mohannad Barakat, who is the First Defendant. He was at the time a doctor practising in Bristol. That marriage was dissolved on 28 September 2010 in divorce proceedings conducted in Damascus.
2. Ms Khalil only lived in England for a brief period between 6 December 2008 and 15 February 2009. She left Dr Barakat following her discovery of an indecent photograph of him on a specialist website.
3. The publication of the report in question, said by Ms Khalil to have been forged by Dr Barakat, took place in the course of those foreign divorce proceedings. The scale of the publication pleaded was thus very limited. It took place in 2009 and these proceedings were not begun until 4 March 2011. Yet it appears from paragraph 10 the particulars of claim that Ms Khalil became aware of the publication in October 2009, in the context of the Syrian divorce case, shortly after it took place.
4. When the matter came on before me on 26 November 2012, the parties were not ready to argue all the relevant issues and I suggested that they should be resolved in the light of written submissions, which followed in due course.
5. Mr Robertshaw has sought to strike out the claim on a number of grounds, the first of which is the expiry of the limitation period. The law was changed in relation to both defamation and malicious falsehood by the Defamation Act 1996 so that, uniquely, there should be a limitation period of only 12 months. The court does, however, have a discretion to extend the time, if it is thought "equitable" to do so, by reason of s.32A of the Limitation Act 1980. That discretion needs to be exercised in the light of all the circumstances and, in particular, after carrying out a balancing of the advantage to the relevant claimant of disapplying the 12-month limitation period against the prejudice likely to be occasioned to any other of the parties.
6. I need to assume for the purpose of the present application that Ms Khalil will succeed in establishing malice against Dr Barakat, in the sense that he knew the allegation to be false at the time he published it and deliberately intended thereby to mislead the Syrian court. The allegation of malice is potentially relevant not only for the purpose of establishing a key ingredient of the tort of malicious falsehood, but also in the context of meeting any plea of qualified privilege in relation to the publication of the alleged libel. The suggestion is that he obtained, without her knowledge or consent, a cytopathology report which had been prepared following an examination by her general practitioner in Bristol on 17 December 2008. He then used the headed paper of the Second Defendant on which it was printed to concoct a false report. This purported to be written by Fraser McLeod, who was a consultant in gynaecology. Mr McLeod has confirmed in a letter of 17 February 2010 that the report was indeed a forgery and its contents false.
7. In carrying out the necessary balancing exercise, it is relevant to have in mind that the publication by Dr Barakat was numerically limited and also that any damage to reputation is likely to have been correspondingly modest. Compensation for the purpose of vindication would thus be towards the lower end of the scale, although it is to be noted that Ms Khalil also alleges hurt feelings. Moreover, unusually, she suggests that the effect of the publication would have been to reduce the dowry which she would be entitled to receive. I understand that a dowry would remain payable under the relevant law even though the marriage has been dissolved. I rather doubt that this is an element of financial compensation of which English law would take cognisance (for example, by holding that the publication was calculated to cause pecuniary loss of that kind for the purpose of s.3(1) of the Defamation Act 1952).
8. Closely related to these arguments about the general circumstances, for the purposes of the statutory limitation period, is Dr Barakat's contention that the words are not defamatory at all. In our society today an allegation of unchastity would not be taken by most readers to reflect in itself adversely upon a claimant's reputation (by contrast, for example, with the social mores at the time of the Slander of Women Act 1891). Nevertheless, I can see that there may well be room for an innuendo, if the relevant facts were known to the publishee(s), on the basis that Ms Khalil had given an assurance (e.g. to Dr Barakat and his family) prior to marriage that she was in fact a virgin and/or that it was generally regarded as wrong for a woman purporting to be a practising Muslim to lose her virginity prior to marriage. It would obviously be necessary to plead with clarity exactly which publishee(s) knew of any such extraneous facts upon which she wishes to rely.
9. I would thus acknowledge that it is possible to mount a claim in respect of the allegation of unchastity, even though not per se defamatory. Yet it is appropriate, when assessing the overall circumstances for the purpose of the s.32A discretion, to have in mind the considerations that are increasingly taken into account in the context of the abuse of process doctrine explained by the Court of Appeal in Jameel v Dow Jones & Co Inc [2005] QB 946 and later in Khader v Aziz [2011] EMLR 2, Lait v Evening Standard Co Ltd [2011] 1 WLR 2973 and Cammish v Hughes [2012] EWCA Civ 1655. It must be relevant to consider, as part of the balancing exercise, to what extent Ms Khalil stands to gain any sufficient tangible or legitimate advantage from disapplying the one-year limitation rule and thereby permitting the claim to go ahead. In particular, the court will scrutinise the facts of the particular case closely in order to see to what extent there is any real need for vindication, that being the principal purpose of any libel claim.
10. It is to be noted that no evidence has been adduced of Syrian law in the context of the double actionability rule: see e.g. Gatley on Libel and Slander (11^th edn) at paras. 26.26 and 28.19; Duncan & Neill on Defamation (3^rd edn) at paras. 9.11 to 9.13. The primary publication relied upon took place out of the jurisdiction, although there is some suggestion of publication within the Syrian Embassy in London. It is alleged that there was a technical communication of the content of the bogus medical report to unidentified embassy staff purely for the purpose of onward transmission for its use in the Damascus divorce proceedings. That is a sensitive area, as was illustrated in Fayed v Al Tajir [1988] QB 712. It may well be that English law would regard such a publication as immune from suit for reasons of public policy. In any event, in practical terms, it would be unlikely that this publication could be proved by compelling the relevant staff (even if they could be identified) to attend the English court or otherwise participate in these proceedings.
11. It is suggested also by Ms Khalil that Dr Barakat's mother was a publishee in England. On the other hand, it is also alleged that she was complicit in obtaining the cytopathology report by dishonest representations and that she was a party to its falsification. Any publication to her would, therefore, be technical in the extreme and would give rise to no real need for vindication.
12. In the meantime, Dr Barakat has been struck off by the GMC in the light of findings by one of its tribunals that he had indeed forged the medical report. In so far as it is necessary for Ms Khalil to vindicate her reputation, by pointing to the falsity of his allegations on an authoritative basis, she would be able to avail herself of those findings. It is thus not necessary for the purposes of vindication to follow this claim through to a conclusion. Dr Barakat is hardly in a position to deny his wrongdoing in the light, for example, of Mr McLeod's evidence.
13. While it is said that the false medical report remains on the court file in Syria, that is not a matter that can be corrected by any order of the English court. A claim would surely have to be brought in Syria if that is the objective. Moreover, if I am to proceed on the artificial assumption that Syrian law is the same as English law in the absence of evidence to the contrary (see Gatley at para. 28.19), any publication in the course of the divorce proceedings to court staff, or to the judiciary, would be covered by absolute privilege. Despite any forgery on Dr Barakat's part, therefore, it would seem that no compensation would be recoverable in respect of those communications. It has been suggested that the story has also been spread among some family members in Syria, although there is no particularity as to their identity or as to how it was communicated.
14. All in all, I cannot see that Ms Khalil would be likely to recover anything by way of damages which would justify further committing the court's resources to this litigation. However appalling may have been Dr Barakat's behaviour, this is not a factor that would in itself justify prolonging litigation which otherwise ought to be struck out in accordance with ordinary principles (although no doubt it could be a matter to be taken into account when the issue of costs falls to be decided).
15. A number of arguments have been advanced as to why the limitation period was allowed to expire. It is said, for example, that Ms Khalil did not appreciate that the medical report was a forgery until later. But she was aware that Dr Barakat had published it (for the purposes of the Syrian divorce case) and, presumably, that it was false. There is thus obviously no question here of the cause of action being concealed by the Defendant. Reliance is also placed on difficulties of communication between Ms Khalil and her solicitors because she was abroad, but that is no one's responsibility except hers. If the publication was to be taken seriously, she should have given the matter her attention and pursued her complaint with appropriate vigour. Reference was made also to depression, but in the absence of compelling medical evidence I would not accept that this would have caused her to lose the ability to instruct her solicitors on what should have been a very straightforward case.
16. One factor to be taken into account is that Ms Khalil has herself failed to comply with an outstanding court order for payment of some of Dr Barakat's costs (in the sum of £2,500) which was made on 29 June 2011. Since she is not in the jurisdiction, there seems little hope of recovery. This is a further, although no doubt less significant, ground for refusing to exercise the court's discretion in Ms Khalil's favour.
17. In the light of these considerations, I see no reason to take the unusual step of disapplying the limitation period. I am not persuaded that "equity" requires it. So far as the libel and malicious falsehood claims are concerned, I will accordingly strike them out. I would add that I cannot see any basis on which the Second Defendant, which has taken no part in the proceedings before me, could have been made vicariously responsible for the apparent wrongdoing of Dr Barakat in connection with his own personal affairs. Nothing he did could possibly be said to have been in the course of his professional activities or his employment.