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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Rai v Bholowasia & Anor [2015] EWHC 382 (QB) (16 February 2015)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/382.html
Cite as: [2015] EWHC 382 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
Sitting as a Judge of the High Court
____________________
| ABKAR SINGH RAI |
Claimant |
|
| - and - |
||
| (1) JASKARAN SINGH BHOLOWASIA (2) PARDES WEEKLY (UK) LTD |
Defendant |
____________________
The First Defendant represented himself and the Second Defendant
Hearing dates: 19 -27 January 2015
____________________
Crown Copyright ©
- In this libel action, the claimant is Mr Akbar Singh Rai, a man of 61 and a practising adherent of the Sikh religion, who is married with three children and six grandchildren. He came to the UK in 1966 from the Punjab, and since arriving here has been a member of the congregation of the Sikh temple, or gurdwara, in Southall.
- The defendants are Mr Jaskaran Bholowasia, a man of 54, and Pardes Weekly (UK) Ltd, which appears to be a company limited by guarantee. Its only director is Mr Bholowasia's wife, and it is the publisher of a newspaper which, as I understood it, is distributed free to shops and other outlets, I presume primarily in the Southall area. According to Mr Bholowasia, who edits the newspaper, some 8000 copies are distributed, but its readership is approximately ten times that. There is or was at the relevant time - also an online edition, but no figures were available for the readership of that edition. The newspaper is printed in three sections - English, Hindi and Punjabi. Mr Bholowasia told me that each section generally contains the same material. That is clearly not always the case, as is apparent from the articles complained of in this action, one of which (the first) seems to have been published only in English, while later articles appeared in Punjabi and not English.
- Mr Bholowasia represented himself and the second defendant at trial. He has been represented by solicitors during most of the proceedings, and was represented on 15 January when, through his solicitor, he applied for the adjournment of the trial on medical grounds and also on the basis that he wished to put in further evidence, for which he needed time. I dismissed the application for a number of reasons, one of which was that there was no reason to suppose that his medical condition was likely to improve if an adjournment was granted, and that it appeared that his condition could be accommodated if he was given frequent breaks as required. In the event, every request by Mr Bholowasia for a break or for an early adjournment of the day's proceedings was immediately granted, which inevitably meant that the trial overran its 3-5 day estimate. Although his movements appeared to a degree constrained, he was attended every day by two helpers and appeared both physically and intellectually capable of conducting his defence and of robustly challenging the claimants' witnesses. I wish to pay tribute to his unfailing politeness, moderation and courtesy in his conduct of the defence.
- The backdrop of this trial has been the Sikh gurdwara, or temple, in Southall, or to give it its proper name, the Gurdwara Sri Guru Singh Sabha. The gurdwara has at least three separate premises, two temples (at Park Avenue and Havelock Road) and a school at Norwood Hall. It is run by an elected committee, assisted by many volunteers who give their time and energies to the common good; and it also has a number of paid staff. Many thousands of people will attend the gurdwara every week, contributing very large sums of money by way of donations and offerings. It is the handling and counting of those offerings that have been at the centre of this trial.
- The first article was published on 11 May 2013, apparently only in English. It reads as follows:
- Serious assault on brave Navpreet Singh and life threats given to him & his family
- Majority of committee members trying to cover up the matter CCTV off
- Article 1 is illustrated with three photographs. One is that of HS Sohi; one is of Dr Garcha; and the other is a photograph of the claimant, captioned 'Thief: Onkar Singh'.
- The claimant was wrongly named as Onkar Singh throughout the article. His true name is Abkar Singh Rai. It is pleaded, and admitted in the professionally pleaded Defence, that Article 1 was understood to refer to the claimant, given his photograph and the fact that the claimant is (as 'Onkar Singh' was said to be) the brother-in-law of the President of the gurwara, Mr HS Sohi. It is also pleaded, although not admitted, that the claimant was identified by a large but unquantifiable number of readers as the person referred to, and that three particular individuals did so Tajinderpal Singh Johal, Harjit Singh Rai, and Daljit Singh Hayer. All three gave unchallenged evidence that they read the article and identified the claimant as the person referred to. I have no doubt that he will indeed have been identified by very many readers as the person erroneously referred to as Onkar Singh.
- The pleaded natural and ordinary meanings of Article 1 (Particulars of Claim, para 6) are that the claimant was one of the worst kind of thieves, and a criminal, by reason of the fact that
- Those meanings are admitted in the Defence, on the seemingly mistaken basis that they represent what the defendants intended to say. I do not think that matters. In my judgment there could have been no serious argument about the true meanings of Article 1, which are sufficiently well stated at sub-paragraphs 6(1)-(3) of the Particulars of Claim, set out above.
- There is technically an issue on the pleadings as to whether the words of Article 1 are defamatory of the claimant. They unarguably are. The same is true of each of the other articles complained of.
- There is also a legal innuendo meaning, namely that the claimant was completely devoid of any social, moral, or religious values or principles. The particulars of innuendo are that a substantial but unquantifiable number of unidentifiable readers would have known that the 'golak' was the Temple donation box, to be treated with utter reverence and respect, and that any act of stealing from it, especially by someone trusted to count the money as a volunteer, was deeply sacrilegious and disrespectful and offensive to the Sikh community.
- The innuendo meaning is admitted, except that the defendants did not admit the level of readership. In other words, the adjective 'substantial' is not admitted. It seems to me inescapable that any reader who attended the gurdwara or was familiar with its institutions, which would no doubt have been a very substantial number, would have known the facts pleaded as giving rise to the innuendo.
- Although of course the innuendo meaning technically represents a separate cause of action, I doubt, given the clear terms of Article 1, which explain the significance of the golak and the gravity of any theft from it, that it adds much if anything to the natural and ordinary meanings.
- The second and third articles complained of were published on 18 May 2013. They are a re-print of Article 1. Mr Bholowasia told me that he re-printed the original article because he had information that copies of the newspaper containing the first article had been removed from shops by people apparently acting on behalf of the gurdwara.
- The difference between Article 2 and Article 3 is a factor of the different languages used. Article 3 is a simple re-print, in English, of Article 1. Article 2 is a Punjabi version, and the claimant has perfectly properly pleaded an English translation which may (I do not know) be literally correct (its correctness as a translation is not formally in dispute on the pleadings), but is not rendered in good contemporary English. By way of one of many examples, Navpreet Singh is referred to in a strapline as 'Youngman', as if that were a surname. Unfortunately, the result is that there are two different versions of what is in fact the same article, one version in English and the other in Punjabi but translated into English. However, it does not matter very much, because the translated article is not so different from the English version as to affect the meanings.
- The words complained of are as follows:
- Serious assault and life threat to a person who disclosed the incidence
- Sufferer Youngman is in police contact
- Majority of committee members are trying to cover up the matter
- According to the president, there is no proof
- Article 2 was illustrated with the same three photographs as Article 1, including a photograph of the claimant with the caption 'Thief Onkar Singh'.
- The same case on reference, natural and ordinary and innuendo meaning is made as in the case of Article 1, In my judgment, the meanings borne by the translation (again, they are admitted) are the same as those borne by Article 1, and my conclusion on reference is the same. Plainly, the article is defamatory of the claimant.
- Article 3 was identical to Article 1. My conclusions on meaning and reference are the same.
- The next article complained of was also published in the 18 May edition of Pardes Weekly. According to Mr Bholowasia, it was an advertisement, placed by the Lion Group, the then opposition party in the gurdwara, which took power in October 2014. That, of course, has no bearing on the defendants' liability for publishing it, if the conditions for liability are otherwise satisfied. It was printed only in Punjabi, and again there is an English translation.
- The parts of the article which are complained of are as follows:
- No natural and ordinary meaning is pleaded for article 4. An innuendo is pleaded, namely that the claimant had committed an act which should be condemned as much as possible, namely the theft of the golak's cash box, which was so serious that the whole committee should resign or be dismissed. The particulars of innuendo, which are admitted except for the number of readers, assert that a substantial number of readers would have read Articles 1, 2 and 3, which identified the claimant as the thief. It is also said (and not admitted) that the claimant was identified as the individual referred to in Article 4.
- I do not doubt that he would have been identified as the person referred to, but it does not seem to me that Article 4 adds anything of substance to Articles 2 and 3, which were published in the same edition of the newspaper. To identify the claimant as the target of Article 4, a reader would have had to read the other articles, which in terms of defamatory content are considerably more serious.
- This also was published in the 18 May 2013 edition of Pardes Weekly, but only in Punjabi.
- The words complained of, as set out in an English translation which is far from colloquial but not in dispute, are as follows:
- Only a legal innuendo meaning is pleaded. It is that the claimant was a thief and was involved in gangster activity and threats to kill, including threats to kill the first defendant, by telephone calls made from Pakistan which Scotland Yard were taking seriously.
- The particulars of innuendo are that a substantial number of readers would have read the articles reporting the theft and criminal activity by the defendant referred to in the first three articles, in which his photograph and the fact that he was the president's brother-in-law were given. No explanation is given as to how the readers would have realised that 'Jaskaran' was the first defendant, but that probably does not matter.
- The meaning and the particulars of innuendo are admitted, apart from the number of readers who would have understood the meaning and the reference. The meaning is, in my judgment, broadly correct, even if others might have pleaded it differently. I do not doubt that a substantial number of readers would have made the necessary connections.
- Article 6 was published in the edition of Pardes Weekly for 15 June 2013. It was published in Punjabi only, which I have no doubt a substantial number of readers could understand, and the English translation relied upon (again very poor but not in dispute) is as follows:
- The natural and ordinary meaning pleaded is that the claimant was a thief, by reason of the facts that
- That meaning is admitted. It is not, in my judgment, well pleaded. For instance, it is plainly not right, or at least not necessary, to plead that the claimant is a thief by reason of the fact that he was said to be (if he was said to be) involved in the making of threats. The allegation that he is a thief, or the thief, is made in express terms, and does not depend on any involvement in threatening behaviour. However, it seems to me that the pleaded meaning that the claimant was a thief or rather, the thief of the money stolen from the gurdwara - sufficiently states the sting of the words for it not to be necessary for me to re-formulate the meaning when there is no issue between the parties.
- There is also an innuendo meaning, namely that the claimant was a thief and was involved in or implicated in the threats being made to the defendants' staff following the revelation of theft by the claimant and revelation of the thuggery going on at the Temple. The particulars of innuendo are that a substantial number of readers would have read the articles which reported the theft and 'criminal activity' by the claimant, in some of which the claimant's photograph and the fact that he was the president's brother-in-law were prominently published. The pleader plainly means to refer to Articles 1 to 3. It is pleaded that the claimant was identified by a large but unquantifiable number of readers of the words complained of as the individual referred to in Article 6. The meaning and the particulars are admitted, except that the number of readers ('substantial' and 'large') is not admitted.
- I do not doubt that a large number of readers would have been aware of the facts relied on. The article plainly means that the claimant is a thief, and no innuendo is needed for that, but in my judgment the allegation of involvement in the threats to the defendants is sustainable as a legal innuendo by reason of the allegations in Articles 1-3 that the claimant was part of a conspiracy to arrange an assault on Navpreet Singh and was involved in threats to kill him.
- The causes of action accrued before the commencement of the relevant sections of the Defamation Act 2013, so the old common law defences continue to apply in this case.
- The defences pleaded are justification (defence paragraph 30) and Reynolds qualified privilege (paragraph 33). There is also a brief passing reference to honest comment, and a suggestion of a traditional duty-interest privilege.
- It appears that the intended Lucas-Box meanings, that is to say the meanings in which the defendants intended to justify the words complained of, are that money was taken from the Golak, that the claimant was the thief, and that he was involved in a conspiracy to harm Navpreet Singh and to remove copies of the defendants' newspapers.
- Unfortunately, the defence pleads the evidence by which the facts relied upon are to be proved, rather than the facts themselves. The material on which the defendants are said to rely is as follows:
- The pleaded defence of justification is fundamentally flawed. However, as far as I am aware no application was made to strike it out, possibly because at least one witness statement was eventually served which was capable of supporting the case that the claimant did indeed steal the money.
- At paragraph 33 of the defence there is what appears to be a plea of Reynolds privilege. It is pleaded that the words complained of were published on an occasion of qualified privilege and made pursuant to the defendants' journalistic duties, and the particulars given are as follows:
- I should also refer to paragraphs 31 and 32 of the defence, the significance of which is not altogether clear.
- At paragraph 31, it is pleaded that the defendants published the articles complained of only after having exhausted attempts to verify the facts with the claimant and with the gurdwara committee, and that the defendants between 6 and 10 May 2013 sought to speak with the claimant and/or the committee to seek comments on the proposed publication. It is said that the defendants were told throughout that the matters complained of whatever is meant by that - would be raised with the committee. It is pleaded by way of further information that the first defendant telephoned Mr Sohi, the president, Mr Bahadur Singh, and Dr Garcha (the general secretary). Mr Sohi denied that any thefts had taken place, Mr Bahadur Singh refused to comment, asking for the matter to be referred to Dr Garcha, and Dr Garcha 'did not provide any sort of reply'.
- I regard that paragraph as supporting the plea of Reynolds privilege. That, as I understood him, was the way in which it was deployed by the first defendant at trial.
- Paragraph 32 pleads as follows:
- Notwithstanding the references to the defendants being 'justified', I do not understand this paragraph as going to justification. I regard the first two sentences as going to the plea of privilege.
- There is a degree of confusion in the plea of privilege, as to whether it is simply a plea of Reynolds privilege, or whether it is also intended to be a plea of traditional duty-interest qualified privilege, and with a view to covering that possibility there is a brief plea of malice which appears to be founded on recklessness. I will return to the question of malice later.
- The final sentence of paragraph 32 of the defence appears to be an embryonic plea of honest comment. It should have been explored by way of request for further information, or have been made the subject of an application to strike out, because as it stands it is hopeless, failing as it does even to identify the comment relied upon. The first defendant made the bare assertion in his skeleton argument that the articles were honest comment, but this contention was not developed during the trial. I did not encourage him to do so, because it did not appear to me to be a defence with any prospect of success. It seems to me that I can deal with this very shortly. The central allegations made in articles 1-3, namely that the claimant stole the money from the Golak, and that he was party to a conspiracy to assault Navpreet Singh and involved in the making of threats to kill the man, are indisputably allegations of fact. Those articles contain the most serious allegations against the claimant. Nor can I identify any passages in articles 4-6, defamatory of the claimant, which are even arguably comment.
- The witness statements stood as evidence in chief, although I allowed both parties some leeway in asking additional questions. In Mr Bholowasia's case, I allowed him to amplify his witness statement at very considerable length.
- The first and most important witness for the claimant was the claimant himself, Mr Akbar Singh Rai. He had the interpreter beside him, but rarely needed his services, for he spoke good English. He seemed to me to be a mild and patient man. He made no attempt to gild his evidence or to exaggerate. I found him a reliable and patently honest witness.
- Mr Rai came to the United Kingdom in 1966 from the Punjab, as I have said, to join his father, and ever since has been a member of the congregation, or sangat, of the Gurdwara Sri Guru Singh Sabha in Southall. His father was one of the founders of the gurdwara, and held a number of posts on the executive committee. Mr Rai worked as a senior supervisor in a machine shop until 1982, when he bought and ran a newsagent's shop. Over many years, he invested in a buy-to-let property portfolio, and in 2000 bought a small hotel. His sons now run and manage the hotel, and he has been fortunate enough to be able to retire from full time work.
- Mr Rai is, of course, a practising member of the Sikh religion. It is one of the tenets of the Sikh faith that its adherents should engage in selfless voluntary service. He gave unchallenged evidence that he and his family have volunteered at the gurdwara and made substantial financial donations to it over very many years. When he retired in 2000, he gave all his time to carry out volunteer work at the gurdwara seven days a week. In 2002, he was elected to the management committee, on which he served for two further consecutive terms from 2004 and 2006. His voluntary work appears to have involved a very substantial commitment. He volunteered full-time at the gurdwara from 5:30 am to 6 pm seven days a week until March 2008. At that point, a new committee was elected, and he was informed that he would not be required to carry out his duties any longer, but in March 2011 the previous committee was re-elected, and he returned to his duties once again.
- His work would include opening the office, giving the priests their daily programme; giving staff the daily list of bookings; doing the fresh vegetable shopping or the cash-and-carry shopping; looking after repairs and maintenance of kitchen equipment; keeping an eye on the cleaning staff and other volunteer workers; taking material from one gurdwara to the other; and dealing with many other issues in the kitchen, washrooms, and car parks at both gurdwaras and at Norwood Hall, the gurdwara school. Once a year, his family cooks and provides food for the school camp which takes place in August. That involves feeding 500 children and 100 helpers. His family also cooks and provides food once a week for the homeless shelter in Slough.
- Mr Rai held keys to the office and the office safe, where there could be £4000 at any one time. In cross-examination, he explained that he held the keys for the counting room, the grocery store and three rooms upstairs in the Park Avenue gurdwara, one of which, I take it, was the office. When his duties required him to make purchases on behalf of the gurdwara, he would obtain cash from the secretary, purchase the goods, and account for all that he had spent, providing a receipt for all his purchases.
- The gurdwara received very substantial amounts of money by way of donations from the sangat, or congregation. Mr Rai's duties extended to the counting room, where the receipts were counted on Mondays and Tuesdays. On Mondays, he would collect the money received at Havelock Road and at Norwood Hall, and take it to Park Avenue, where the money would be counted. He would then take the money to the bank.
- On Tuesdays, the donation money placed by the congregation at both gurdwaras in the golak, the large collection box in the main prayer hall, was brought to Park Avenue, counted and taken to the bank. Mr Rai was always involved in the process of counting the golak money. In the counting room, off the main hall of the Park Avenue gurdwara, there were a number of machines, one of which sorted the coins into the different values, and the others of which counted the coins and put them into bags for the bank. Mr Rai's job was to operate the machine which sorted the coins. After the money had been counted, the relevant paperwork was done and the money was taken to the bank.
- This case concerns Tuesday 23 April 2013. On that day, Mr Rai's duty was, as usual, to put the coins in the sorting machine which would then separate the coins into their different values. His evidence was that he remembered six other people being in the counting room that day. They were Narinderpal Singh Johal, Ajit Singh Ojla, Bahadur Singh Keila, Gurdev Singh Jandor, Darshan Singh Dokal and Sohan Singh Shahdara. All were volunteers, as opposed to paid employees of the gurdwara. His evidence was that there was nothing unusual about that morning's counting until after the job was done.
- Navpreet Singh had not been in the counting room, and Mr Rai did not even see him outside the room when he had finished counting. But he knew Navpreet: their relationship had in the past been good. Navpreet had volunteered at the gurdwara on a part-time basis, and Mr Rai himself had put Navpreet's name forward to the committee as a suitable candidate for an employed position.
- Mr Rai said that once the counting had finished on 23 April, he left the counting room to go upstairs to the office where he kept his shoes, so that he could take the money that had been counted to the bank. As he was on his way up the stairs, he heard his name being called. He looked round and saw Bahadur Singh Keila and Navpreet Singh behind him. He stopped and waited for them on the landing. He recalled Mr Keila saying that someone he did not hear Mr Keila say who - had accused him of taking a bag of £2 coins from the golak. He was very shocked and surprised. He went into the kitchen with Mr Keila and emptied out his pockets. He had some loose change and a set of keys. He had no £2 coins, and no bag of coins, in his possession. He recalled that Mr Keila apologised to him and turned to Navpreet Singh, to whom he said something. He then realised that it must have been Navpreet Singh who had made the allegation. Navpreet Singh left and Mr Rai did not see him again that day. Mr Rai continued with his duties, even going to the bank to deposit the money that had been counted.
- In short, Mr Rai's evidence was that he did not steal the money and that he was not a thief. He regarded the allegations in the articles complained of that he had stolen from the golak, and then arranged for Navpreet Singh to be beaten up, making threats to kill him and his family, as totally outrageous.
- Asked why Navpreet Singh should have made a false allegation against him, he speculated that it might have been prompted by anger at Mr Rai's reluctance or inability to help him to extend his visa, which Navpreet had asked him to do several times. He said that Navpreet's work had not been good at the time, and he had been obliged to pull him up on many occasions, so their relationship was not as good as it had been. He also speculated about a political motive.
- The court also heard the evidence of four other volunteers who were working in the counting room that day.
- Darshan Singh Dokal, a mild-mannered Sikh, gave evidence that he had read the articles complained of in their Punjabi versions, and was able to identify the person named 'Onkar Singh' as being the claimant, Mr Abkar Singh Rai. Mr Dokal had known the claimant as a sevdar, or volunteer, at the gurdwara for over 15 years, and said that the claimant worked seven days a week and had always carried out his duties in an honest and respectful manner. Mr Dokal was vice-president of the gurdwara as at 23 April 2013. He was a member of the committee, and had been treasurer for 10-12 years.
- He told the court that he was in the counting room on 23 April 2013, and said that nothing suspicious occurred. He went to the gurdwara every day at around 0830, or earlier if he was counting, and afterwards would go to his shop. It was put to him that he had not been present that day, but he insisted that he had been: he was there every day.
- Mr Dokal was asked to show by reference to a plan where everyone had been working, and he said that the claimant had been on the sorting machine, as he always was. On his left had been Gurdev Singh Jandor and Sohar Singh Shahdara; beyond them had been Bahadur Singh Keila and Ajit Singh, working together on counting the notes; and he and Narinderpal Singh Johal had been on another counting machine at the bottom right on the plan.
- He saw nothing suspicious happen, and as far as he was concerned no incident occurred. Neither Navpreet Singh nor Prem Randhawa were in the room. He had seen Navpreet there on occasions, because he would bring money from the golak, but he was not there that day. Similarly, Prem Randhawa would occasionally bring money to the counting room, although his duty was looking after the shoes of the members of the congregation. After counting the money, several of them would take it to the Bank of Baroda in a van to save the cost of employing security staff.
- Narinderpal Singh Johal required the assistance of an interpreter. He had read the articles complained of in Punjabi, and was able to identify 'Onkar Singh' as the claimant. He was in the counting room on 23 April 2013. He had never been on the committee of the gurdwara, but he had counted the money for 5 or 6 years. That day, the others present were the claimant, Sohan Singh Shahdara, Ajit Singh, Bahadur Singh Keila, Gurdev Singh Jandor and Darshan Singh Dokal. Asked to state by reference to the plan of the room where everyone had been, he placed everyone where Mr Dokal had, except that he said he and Mr Dokal had been on a machine between the two men counting the notes and Mr Jandor and Mr Shahdara, not (as Mr Dokal had said) at the bottom right of the plan. He had never seen Navpreet Singh or Prem Singh Randhawa in the counting room, although they might have brought the money on occasions; but they did not stay. The room was too small and there was nowhere to stand. He saw nothing suspicious take place.
- Gurdev Singh Jandor was an elderly gentleman who also needed the help of the interpreter. He also had read the articles complained of in Punjabi and had recognised the claimant as the person accused. He had been in the counting room on 23 April 2013. He agreed with Mr Johal (and the claimant) about the men who had been in the room that day and where they had worked. He did not see Mr Rai take any money. He had not seen Navpreet Singh or Prem Singh Randhawa in the room, although he said he had seen Prem help with bagging the money sometimes during the counting. He had not seen Navpreet do so. He went home after counting the money.
- The statement of Ajit Singh Ojla was introduced as hearsay evidence without objection, Mr Ojla being unwell. His statement said that he also had read the articles complained of in Punjabi and had been able to identify Mr Rai as the person being accused. He had been in the counting room that day counting the money. He saw nothing suspicious; nor did he see Navpreet Singh or Prem Randhawa in the room.
- Next the court heard the important evidence of Bahadur Singh Keila, a driving instructor by occupation. He spoke excellent English, he was plainly very intelligent, and he gave his evidence with a cheerful candour. I found him a very impressive witness.
- Mr Keila generally does voluntary work at the gurdwara until 12 noon on Tuesdays, and goes on other occasions as a member of the congregation. He had been involved with the gurdwara since he came to the UK in 1960. He was assistant treasurer for 13 years from 1994, and took over the treasurer's duties for the last year. In 2013, his wife was the treasurer.
- Mr Keila explained that he was present in the counting room on the morning of 23 April 2013 between about 0800 and about 1050. The claimant had been operating the coin sorting machine, which Mr Keila called the Jet Sorter. Mr Keila explained that the coins are routed into bags, and then tipped into buckets before being put into the counting machines. He did not really recall, he said, who was there, except that he himself was working on the notes with Ajit Singh. He did not recall that either Navpreet Singh or Prem Randhawa were in the room. Asked whether Navpreet helped with the counting, he said that he generally helped by bringing the money from the golak into the counting room. The room, he said, is small, and ought to be bigger. There is a camera which shows the end of the room where the claimant works, and the images are shown on a TV screen so that he can see what is happening at the far end of the room. In other words, while he was working he could see the claimant. The screen was working that day, so he supposed that the camera must have been working also.
- When the counting was nearly finished, Mr Keila had to go to the door because someone wanted some change. Navpreet Singh came up to him and said that he wanted to speak to him. Mr Keila said that he would see him in about 10 minutes when the counting was finished. When Mr Keila came out, Navpreet Singh told him that he had seen the claimant putting what he thought was a bag of £2 coins into his pocket. Mr Keila was shocked and saw the claimant walking ahead of him, so said to Navpreet Singh, "Let's find out".
- He approached the claimant on the upstairs landing and said that someone had accused him of putting money in his pocket. He suggested that they should go into the kitchen, and once in the kitchen he said that he would have to ask the claimant to empty his pockets. He did so, and Mr Keila could see only some loose change and keys. Navpreet Singh was with him. Mr Keila asked him: "Where is the bag of £2 coins?" Mr Keila said that he turned pale, and walked away.
- Mr Keila apologised to the claimant but explained that Navpreet had accused him of stealing money. He said it was okay. Both of them, Mr Keila said, were shocked, and stood there for a few minutes. Mr Keila was reflecting, he said, on the fact that the claimant was someone he knew so well, who was a dedicated volunteer, a man who, when asked by him to go to buy something for the summer camp, would always bring the right change and a receipt, and who with his family had every year for 1-2 days donated the food and drink for 500-600 people at the summer camp, at a cost which Mr Keila estimated at £1500-£2000.
- He was asked why, if the claimant was so honest, he approached him on the say so of a worker such as Navpreet. His answer was that it was charity money for which he was responsible. He would have asked his own wife to empty her pockets in the same circumstances.
- After he had finished with the claimant, Mr Keila did not recall where he went. He never did the banking: he filled in the slip which gave the total sum, and others took the money to the bank. He would normally have gone upstairs with the foreign currency. At that point, he thought that they still used Lloyds Bank although the gurdwara later switched to the Bank of Baroda. It matters little, but he was plainly right about that, for Mr Bholowasia produced a Lloyds Bank statement which showed that £31,115 had been paid in to the gurdwara's account on 23 April.
- Mr Keila said that he reported the incident. He spoke to the president, Himmat Singh Sohi, when he had a gap between driving lessons, and told him that the claimant had been accused of stealing. Mr Sohi said that he would inform the committee. He also met Daljit Singh Hayer, a member of the committee, whom he knew to be a member of the committee set up to investigate the incident, and told him what had happened. He also told the investigation committee as a whole at a meeting in Norwood Hall. Mr Bholowasia referred him to the minutes of the meeting of the investigation committee, which met on 15 May 2013. The minutes recorded his evidence, which accorded with the evidence which he gave to this court. I note that a member of the committee asked him the pertinent question, How could Navpreet Singh make his allegation if he was not, as Mr Keila said he was not, in the counting room? Mr Keila replied to the committee that Navpreet had made an allegation, and it was better to clear everything there and then. Had he not asked the claimant to empty his pockets, Navpreet would have said that he was protecting him. Mr Keila said that he trusted the claimant and knew he would not mind, and that Navpreet would be proved wrong, as turned out to be the case. The claimant, he added, was never out of his sight after he left the counting room.
- The investigation committee was chaired by Daljit Singh Hayer, a young man whom I found a very open and straightforward witness. I accepted his evidence without reservation. He told the court that he was asked by Dr Garcha to chair the investigation, and he did so. He asked Mr Dhillon to take on the task of speaking individually to the men who had been in the counting room and asking them for their version of events. Mr Dhillon did so, and reported to Mr Hayer. Mr Hayer, with two members of staff, watched the CCTV of the counting. The CCTV was functioning in that it had recorded footage of the morning's counting, although there was a technical problem which meant that the footage could not be copied onto a CD. He watched the footage for 3 to 4 hours, with stopping and pausing. The footage showed seven or eight men involved in the count. He concentrated on the claimant, and saw no wrongdoing whatever and nothing to give rise to suspicion. He did not see Navpreet Singh in the counting room. He did not know Prem Singh Randhawa, a witness called by the defence as to what took place in the counting room, so was unable to say whether he had been in the room. He produced the minutes of the meeting of the investigation committee on 15 May 2013, and told the court that for him the evidence of Bahadur Singh Keila (to the same effect, as I have said, as his evidence to the court) had been conclusive, and that the unanimous conclusion of the committee had been that the allegations were unfounded and mischievous, and that the motivation behind the making of the allegations was likely to have been political, 'given Akbar Singh Rai's familial association with the President, as there have been many failed attempts to implicate the President in wrongdoing in the past'. It should be noted that, contrary to Mr Bholowasia's assertion in his closing speech that the committee chose not to invite Navpreet to give evidence (an assertion for which there was not a shred of evidence), Mr Hayer's evidence, which I accept, was that the committee did invite Navpreet to give evidence, but that he did not turn up at the hearing.
- Prem Singh Randawa was the last witness able to help the court on the issue of what happened in the counting room on 23 April 2013. He was called by Mr Bholowasia. He was a Sikh man who looked much older than his 55 years. He could not speak English so had the services of the interpreter.
- His witness statement stated that he had been a paid employee of the gurdwara between 2007 and 21 July 2013. His main duty was to look after the shoes of the visitors, but he was also asked to do other work from time to time. Among those duties was assisting on Tuesdays in the counting of the donation money collected from the golak. He claimed that he was involved in the counting every Tuesday, even on his days off, when he came in specially to carry out this duty. When he was helping in the counting of the donation money, he would often see the claimant put donation money in his pocket, and go outside to put the money in his van, which was usually parked in the gurdwara car park. On every single Tuesday that he and the claimant took part in the counting of the donation money, he saw the claimant put money from the donation box into his pocket. He did not tell anybody about it because he was afraid of losing his job, and he was afraid of the people who were them members of the committee of the gurdwara.
- According to his witness statement, on 23 April 2013 he was counting the donation money as usual. The claimant and Navpreet Singh were also there. He said that he and Navpreet Singh saw the claimant take money from the donation box while it was being counted, but that he did not say anything. However, Navpreet Singh decided to speak out: when the claimant walked out of the room, Navpreet Singh grabbed the claimant's hand and said to Mr Keila, who was in charge of counting the money that day, 'Uncle ji, search him, he has stolen money and is going'. After that, he said, Mr Keila and Navpreet Singh took the claimant out of the room. He said that he felt ashamed for not having spoken up earlier. He said that he spoke to Navpreet Singh later that morning, and that Navpreet told him that when Mr Keila searched the claimant, he found lots of £1 and £2 coins in his pocket. Navpreet also said, according to Mr Randhawa's witness statement, that Mr Keila had told him to keep the matter quiet, and that he would inform the committee of what had happened.
- Later, Mr Randhawa explained in his witness statement, after he saw the articles about the claimant in Pardes Weekly, he decided that he should go to tell Mr Bholowasia what he had seen.
- I allowed Mr Bholowasia to ask some supplementary questions in chief. Mr Randhawa said that he was a priest at the gurdwara. There had been no reference to that role in his witness statement, where he had said that his chief responsibility was looking after visitors' shoes. His duties as a priest, he said, included doing anything that the committee asked him to do. He was not acting as a priest on 23 April.
- He told the court that those present in the counting room on 23 April, apart from himself. had been the claimant, Gurdev Singh Jandor, Bahadur Singh Keila, Navpreet Singh, and two men whose names had not been mentioned before, Amendeep Singh and Santokh Singh. There were other people also, whose names he did not know, but as for Darshan Singh Dokal, Sohan Singh Shahdara, Najinderpal Singh Johal and Ajit Singh Ojla, none of them had been present. He claimed to have been working with Santokh Singh on the first machine on right on entering the room, helping him to bag the money. As for the others, he maintained that Amandeep Singh was on the machine at which the claimant's witnesses had unanimously placed Narinderpal Singh Johal and Darshan Singh Dokal (neither of whom, on Prem's evidence, was there at all); Gurdev Singh Jandor was working on the middle machine with Navpreet (not, as all the claimant's witnesses had said, with Sohan Singh Shahdara); and a man called Shera was present helping the claimant by putting coins into the sorting machine that the claimant was operating.
- He asserted that he saw the claimant take money out of his machine and put it in his pocket: he was able to see the claimant from where he was standing. He maintained that everyone could see what he saw, but no-one would say anything, and all the witnesses had been lying. He insisted that Navpreet seized the claimant's hand while it was in his pocket, and while they were both inside the room. He had seen the claimant take money on every occasion when he was counting. He accepted that it was his duty as a priest to report such behaviour, but he was afraid of losing his job.
- He was asked about the form which is signed after the money has been counted. The form signed on 23 April was shown to him, and he was asked where his name appeared. He said that it did not, because employees do not sign. But he was acting as a volunteer that day, he was reminded, not as an employee. Nonetheless, he said, he was in fact an employee. For the same reason, he said, Navpreet Singh's name was not on the form. It was pointed out to him that on his account Shera, Santokh and Amandeep had been in the room that day; they were volunteers; yet their names did not appear. That, he said, was because the committee did not ask them to sign. He knew that, he said, because people who live in the gurdwara do not sign. But, it was pointed out, Santokh did not live in the gurdwara: why did he not sign? Because he left before the signing, the witness said. Then he said that Santokh did not sign because he was 'illegal' and was not asked to sign.
- The form bears the names of Narinderpal Singh Johal and Ajit Singh. Mr Johal had not been asked how it was that his name appeared on the form if, as the defence contended, he had not been present. However, Sohan Singh Shahdara was recalled to be asked if his signature appeared on the form, and he confirmed that it did: he signed in his usual manner as Sadrha SS. (Plainly there are difficulties of transliteration of names as between Punjabi and English).
- Prem Singh Randhawa was asked about his second witness statement, made on 11 January 2015 in support of Mr Bholowasia's application for an adjournment. In his statement, he said that he had new evidence that would support the defence case, which he wished to collate and bring to the attention of the court. He had not explained what that evidence was, which was one of the reasons for the refusal of the adjournment. He was asked about the evidence which he had wished to put before the court, and eventually, after a number of unsatisfactory answers which suggested that he was stalling or, at best, was being very obtuse, told the court that it concerned ordinary people, to whom he had spoken on the phone from India and who had told him that the claimant's family were 'beating too much', by which I took it that he meant that they were using violence. Asked what he meant by collating the evidence, he said that he could have done it on his return from India but could not get it. He returned from India on 25 December 2014.
- I am sorry to say that I found Prem Singh Randhawa a less than impressive witness. He sat looking down throughout his evidence, his eyes almost closed, and never looked at the person questioning him. He repeatedly answered questions with remarkable obtuseness: for example, he would be asked whether he was able to help the court with a particular matter, and would simply answer 'yes', so that on each occasion he would then have to be prompted to give the answer. I found his explanations for the absence of the signatures of the three volunteers who he claimed had been present at the counting very unconvincing, and I was concerned that there seemed to have been little if any substance in the claim that he made in his witness statement that he had new evidence supporting the defence case. But even if I put those considerations on one side, I have no hesitation whatever in preferring the evidence of the claimant and Mr Keila, in particular, and that of the other men Narinderpal Singh Johan, Gurdev Singh Jandor, Darshan Singh Dokal and Sohan Singh Shahdara who gave evidence as to who was and was not in the room that day, and whose signatures appeared on the form which recorded the total sum counted.
- I should mention that Mr Bholowasia belatedly (after the claimant's witnesses had given their evidence) produced a selection of receipt forms for other days when the money had been counted. He suggested that they showed that an unusual number of people had signed the form on 23 April, thus proving that they had added their names to buttress the claimant's case. I was not impressed by that argument. The numbers of signatories varied, and there seemed to me to be nothing particularly unusual about 23 April.
- My conclusion is that neither Navpreet Singh nor Prem Singh Randhawa was in the counting room on 23 April 2013, and that for whatever reason, Navpreet Singh made an unfounded accusation of theft against the claimant. I accept without hesitation the evidence of the claimant that he did not take anything, and the evidence of Mr Keila that he asked the claimant to turn out his pockets and found no stolen money there. The suggestion is that a man wealthy enough to be able to take early retirement and to devote all his time and energies to the gurdwara which his own father had helped to found, and a man who, with his family, gave very substantial sums each year to the gurdwara and particularly to its summer youth camp, should at the same time have been pilfering from its collection box. The suggestion is also that each of the claimant's witnesses, all of them long-standing volunteers dedicated to the gurdwara, has lied about who was present and what took place in the counting room. Strong evidence would have been necessary to make such a case, and it was wholly lacking.
- What evidence was there that the claimant had anything to do with the assault on Navpreet Singh? It was the claimant's evidence that the accusation, which he denied, was totally outrageous.
- Mr Bholowasia relied on a CD which, according to him, had been produced by a friend of Navpreet who took a surreptitious recording of a meeting between Navpreet and Dr Garcha. The status of the CD and its transcript was unclear: it had been disclosed by the defendants on their list of documents, but the claimant's solicitors had served notice requiring the defendants to prove its authenticity at trial. That notice was not complied with. The CD was simply produced by Mr Bholowasia as if it proved itself. However, Ms Kumar did not take any point on it, and there was no issue as to the transcript or the translation, so I treated the translated transcript as being an accurate account of what was said at a meeting between (at least) Dr Garcha, the general secretary of the gurdwara, and the head priest, Balwinder Singh Patti. They were the only two voices that Mr Bholowasia was able to identify. The person who made the transcript seems to have concluded that the other voices included a committee member named Baljinder Singh Dhillon, Navpreet Singh and his friend, who may be the person who made the recording. I should say that the claimant was asked whose voices he had heard when he listened to the CD, and maintained that he did not recognise any of them. There was no admissible evidence before me as to the identities of the others present. But the context suggests that the person said to be Navpreet had been attacked, so I shall proceed for present purposes on the assumption that the words are correctly attributed to him, and that Mr Dhillon and Navpreet's friend are also correctly identified. I should add that I had great difficulty in making sense of the translation, which was extremely poor.
- Mr Bholowasia took me to a number of passages in the transcript. At page 3, Navpreet is recorded as saying that he does not know who assaulted him. At pp3-4, he is recorded as saying that a 'small disrespect in the presence of the Holy Guru Granth Sahib happened, which I have tried to explain you but the result is I was to be punished with that I will be beaten'. That, Mr Bholowasia said, was a reference to the theft. Mr Bholowasia placed great emphasis on a passage at page 6 in which Navpreet is recorded as saying 'In the morning they were beating up and saying, you are alleging us of theft? Alleging us of theft? They were speaking loudly that you are alleging us of theft?' As I understood him, he regarded that as evidence that the attackers had been sent by the claimant. At page 8, Dr Garcha is recorded as saying that a five member committee would investigate the allegation, because he could not say what had happened or not happened, but whatever happened he felt ashamed that it happened in God's house; and at the bottom of that page, Navpreet's friend is recorded as referring to the fact that 'he' (Mr Bholowasia says this is a reference to the claimant) is the president's relative, and that there is too close a relationship, but then concedes that the decision of a five member committee would be acceptable. At page 9, Dr Garcha is recorded as saying that an apology might be acceptable. At page 10, Navpreet's friend is recorded as saying that the president's older brother in law had been caught. At page 11, Mr Dhillon is recorded as urging 'Navpreet' to give evidence to the investigating committee, which Navpreet is said to have agreed to do. At p16, Mr Patti appears to encourage Navpreet to run away to escape the people whom he called bandits.
- What emerges from the transcript of the CD is that the person said to be Navpreet is standing by his allegation that the claimant was the thief. Dr Garcha's view is that the allegation must be properly investigated, The person assumed to be Mr Dhillon wants Navpreet to give evidence, and Dr Garcha suggests that it might be enough for the person identified as the culprit to apologise. The closest that anyone comes to suggesting that the claimant was behind the attack on Navpreet is Navpreet's statement that his attackers suggested that he was being beaten up because he had accused 'them' of theft. What that does not amount to, of course, is evidence that the claimant ordered them to act as they did, or had any knowledge of what they intended to do.
- It was clear to me in the course of the evidence that there are different factions that compete for control of the gurdwara, and that there is a very distinct and very political character to the management of the gurdwara and the elections to it. For instance, the claimant was on the committee from six years from 2002 to 2008, when there was an election and he was informed that the new committee would not require him to carry out further duties. He resumed his voluntary work in 2011, when a new committee was elected. Similarly, he again stopped volunteering in October 2014, when a new committee was elected which had used the Pardes Weekly articles in the course of their campaign. He speculated that Navpreet might have made a false allegation against him for political reasons. Similarly, the gurdwara committee that investigated the allegation of theft concluded that the allegations might have been made for political reasons. Plainly, there was very strong feeling among different factions at the gurdwara, so strong that a tireless volunteer who gave substantial amounts of time and money to the gurdwara was asked to stand down when a new committee took over.
- It seems to me that the likely explanation for the words attributed by Navpreet to his attackers is that young hotheads who supported the then current committee took it upon themselves to punish Navpreet for making such an accusation against one of their faction.
- Whether or not I am right about that, it certainly is not evidence that the claimant had anything to do with the attack, and I accept his evidence that he did not. Similarly, there is no evidence at all that the claimant was involved in making any threats against Navpreet.
- I ought to refer briefly to Mr Bholowasia's closing submission that on 23 April 2013 and until the CD was released, which must have been on or after 27 April, only three people knew of the alleged theft the claimant, Navpreet and Mr Keila. That, he says, means that the claimant must have arranged the attack, and of course only he, says Mr Bholowasia, had a motive for doing so. That submission, I am afraid to say, is arrant nonsense. It was Mr Bholowasia's own evidence that there were people outside the golak room on 23 April who saw what happened, and that the news spread like fire; and that at least one person heard the claimant say that he would teach Navpreet a lesson. Moreover, he said that he himself learned of the alleged theft on 24 April when four or five people from the sangat, or congregation, called him to say that the president's brother in law had been caught stealing money. Afterwards he had more calls, and he spoke to the president about it on 26 April, when the president told him that there had been no theft. Plainly, the president knew (indeed, the first three articles assert that he was in a conspiracy with the claimant to assault Navpreet), and if Mr Bholowasia was rung by several people with the news on 24 April, it is a fair assumption that many others knew who did not call him.
- For the sake of completeness, I should mention that in his closing submissions, Mr Bholowasia asserted that it was significant that the claimant had said in evidence that he had been told about the attack on Navpreet by telephone an hour after it happened, that is to say at 0600, but that he could not remember who had called him. That was not the effect of my note or Ms Kumar's. Mine read that Mr Bholowasia asked him if he heard about Navpreet being beaten up, and the claimant replied that he had asked someone where Navpreet was that morning and he had been told that Navpreet had been beaten up. I therefore listened to the tape, which was not very clear, but I was able to transcribe it as follows:
- Unfortunately, the words after 'half past six' are not clear, but the context suggests that the claimant was saying that half past six was the time when Navpreet was beaten up, not the time he was told; but in any event, he learned of it when he asked someone at the gurdwara, at a time when he had noticed that Navpreet was not there. It was not a question of him being telephoned. In the circumstances, it did not seem to me that Mr Bholowasia's submission had any force.
- A witness statement of Kewal Singh Randhawa was put in as hearsay by Mr Bholowasia without objection by Ms Kumar, the witness being unable to attend court. He is a shopkeeper. He said that on 11 May, two people got out of a white van, entered his shop and took away all the copies of Pardes Weekly. He asked them why they were doing this, and they replied that they had been sent by the gurdwara to collect them, because there was news in the newspaper which the committee did not like, and their instructions were to collect as many copies as possible.
- Similarly, Mr Bholowasia himself told the court that copies of his newspaper were taken from shops, Hindu temples and Sikh gurdwaras to which they had been distributed.
- That evidence suggests underhand behaviour by some elements at the gurdwara, but there is no evidence whatever which implicates the claimant in what was done. Indeed, Mr Bholowasia himself eventually accepted in cross-examination that this was so.
- There was no evidence whatever that the claimant had been involved in making or causing any threats to Mr Bholowasia or the staff of Pardes Weekly.
- It is worth noting that, as the claimant's unchallenged evidence made clear, he was never even approached by the police about any of these matters, let alone questioned by them.
- For those reasons, the plea of justification fails.
- Mr Bholowasia's evidence was that he learned of the alleged theft or the theft, as he always referred to it on 24 April, when members of the congregation, or sangat, called him. They did not give their names, but said that someone had caught the president's brother-in-law stealing money. Most curiously, he did not ask them the name of the president's brother-in-law.
- He carried out his own investigations into the matter. In his witness statement, he says that he is aware of his responsibilities as a journalist, and made sure through his own investigations what had occurred at the gurdwara before he wrote any articles. However, most of the people that he spoke to did not want to give their names, claiming that they were afraid of the claimant, who was a powerful man. One of his contacts told him that it was the claimant's thugs who had attacked Navpreet Singh. He also learned that the gurdwara committee had not let the police investigate the theft but instead had appointed its own colleagues to form a sub-committee to investigate the matter. He found that an astonishing and biased way to proceed.
- He contacted the president, Himmat Singh Sohi, on 26 April. He spoke to him for 3 minutes and 26 seconds. In the course of their conversation, the president told him that no theft had taken place, and there had had been no CCTV working. He claimed that he put Mr Sohi's comments in the first article. That was a reference to the sentence in the third column of the article where it was said that Mr Sohi 'stated that there is no evidence and the CCTV was also off'. Mr Bholowasia regarded the published statement that there was no evidence as meaning that there had been no theft.
- Between 23 April and 7 May 2013 he went to the Park Avenue gurdwara to make enquiries. Many members of the congregation and some volunteers told him that the theft had taken place and that because of it, Navpreet had been beaten up. None of them had first-hand knowledge, Mr Bholowasia conceded. The news had, as he put it, spread like fire.
- In late April 2013, according to Mr Bholowasia's witness statement, many copies of the CD recording of the conversation between Dr Garcha, Navpreet Singh and others were distributed by what he called 'well-wishers' of the gurdwara, to expose the theft and the attack on Navpreet Singh. He said that people rang him and told him to listen to the CD, which as I understood him was played to him down the phone, at least in part. He did not get hold of a copy until about 6 June. He had been trying to, but had not succeeded. It is not clear why, given the thousands of copies which he said were in in circulation, and the calls that he received from people with copies, he had been unable to obtain one earlier. In his view, the CD shows that it was acknowledged that the theft of the donation monies had occurred. As I have already explained, I do not think that is right.
- Mr Bholowasia gave evidence that a letter was put through his letter box on 6 May 2013. In translation, the letter, which gave the author's telephone number and address, read as follows:
- 11 Beaconsfield Road was the address where Navpreet had lived, and it seems to have been a kind of hostel for gurdwara employees.
- Mr Bholowasia said that he was shocked by the letter and at once contacted the local police. Not content with that, he also decided that the matter was fit for the attention of the Metropolitan Police Commissioner. In fact, he did not contact the police at once: he did so on 9 May, when he asked for comments from the police with a view to publication on 11 May.
- He claimed in evidence that he called Gursewak Singh on the day he received the letter, but he did not answer, and later the phone went dead. He did not visit 11 Beaconsfield Road to make contact with this important source. Asked why not, he said that he did not know.
- In his witness statement, Mr Bholowasia said that on 8 May 2013 he contacted Bahadur Singh Keila for comments, but that Mr Keila had replied that he had no comment to make, and that he should speak to Dr Garcha, the general secretary. Mr Keila gave evidence about this conversation. He said that Mr Bholowasia called him when he was teaching a pupil, and asked him if there had been a theft. His response had been, "No, there was no theft, but you should talk to the management committee". Mr Bholowasia had wanted to carry on talking but Mr Keila had to apologise and say that he did not have time. I have no doubt that Mr Keila did tell him that there was no theft. I have already explained that I found Mr Keila a most impressive witness. He had been upset by the injustice of the allegation against the claimant, given in particular the service that the claimant had given to the gurdwara, and I am confident that he would have wanted to make it quite clear to a journalist that no theft had taken place. I believe that Mr Bholowasia is mistaken in his recollection of that exchange. There is considerable significance in the point, because Mr Keila's denial of theft was not reported in the published articles. It is regrettable that Mr Bholowasia did not take notes, as I assume he did not, given that his list of documents does not include any reference to journalistic notes as being or having been in his control.
- When he did call Dr Garcha, whom he knew personally, he says that Dr Garcha made no comment. In any event, he said in cross-examination, he had to think of his phone bills, and it was enough to have spoken to the president.
- Mr Bholowasia says in his witness statement that he also called the president, Himmat Singh Sohi, but that he made no comment either. That was plainly not correct, for in his oral evidence he said that he spoke to Mr Sohi for 7½ minutes on 7 May, and asked him where Navpreet was and whether he was safe, to which Mr Sohi said he did not know. He asked for Navpreet's number, and Mr Sohi said that he did not have it. He asked again about the theft and Nr Sohi said that there was no evidence of theft, which if true was rather different from his answer on 26 April, namely that there had been no theft. Mr Bholowasia explained that his reference in his witness statement to obtaining no comment from Mr Sohi had been to the occasion after he had spoken to Mr Keila.
- Cross-examined, Mr Bholowasia accepted that he was an experienced journalist. To him, responsible journalism meant that when people pass him information, he always double checks it and makes sure that the contents are correct. He wrote articles which had particular interest to the Sikh and Hindi speaking communities.
- He accepted, as he had to, that he had got the claimant's name wrong, despite having spoken to his brother-in-law, Mr Sohi, about the matter during several telephone conversations. He said that the correct name of the person who took the money was not his main concern: his main concern was the safety of Navpreet. He believed that Onkar Singh was the person's name. It is unclear, and not at all easy to understand, how he managed to have conversations with Mr Sohi about the claimant without it becoming crystal clear that he had got his name wrong.
- He was asked why he did not call the claimant to ask for his comments. His answer was that he asked Mr Sohi to get the claimant to call, but did not hear from him. That, he said, was the best he could do.
- Asked about the steps that he took to contact Navpreet Singh, he said that he tried to contact Gursewak. He did not have Navpreet's number. He asked the police to find out his number but they could not give it out. He went to the gurdwara to ask people but was told that his whereabouts were unknown. He claimed to have tried to contact Navpreet in Amritsar, India, and, as he put it, 'sent some people' to his address, but he had disappeared. However, he did not go to 11 Beaconsfield Road, where Navpreet had lived and Gursewak Singh still resided.
- He was asked what evidence he had, when he published the first three articles, that the claimant was involved in the assault on Navpreet Singh. He replied that his evidence was mainly the CD recording of the meeting with Navpreet (which, as I have already observed, did not show that the claimant had ordered the attack). In addition, 'various people' told him that the attack might (my emphasis) have been planned by the claimant. He was asked why when he heard the CD he did not call Dr Garcha to ask him whether it was genuine, and he said that he thought he tried to do so and left messages for him to call, without success.
- When he was asked further about his sources and what they had told him, his evidence seemed to have firmed up: he said that various sangat people worshippers attending the gurdwara and workers told him that the claimant had (my emphasis) organised the attack. He did not ask them how they knew that he had done so. Then he said that the claimant had been upset by the allegation of theft and 'might' harm Navpreet. He added that his sources had spoken to Navpreet, and he had told them. But how, he was asked, would Navpreet know? The answer was the CD: in other words, the evidence relied on came back to the words said by Navpreet, if it was his voice on the CD, to have been spoken by the attackers.
- Further questioned to the effect that he did not, when he first published, have good evidence that the claimant was involved in the theft, or in the assault on Navpreet Singh, his answer was that as far as he was concerned there was good evidence: his newspapers were stolen and he got threatening telephone calls, so 'it was the claimant or his associates'. That answer may be very important. It is understandable that he should believe that others of the same party as the claimant should have been behind the theft of the newspapers and threatening telephone calls, and for that matter (given what Navpreet apparently said about what his attackers said to him) the assault on Navpreet. But it simply does not follow that the claimant had any inkling of what was being done.
- The question of what Mr Bholowasia learned from people at the gurdwara was explored further. I asked him why he regarded the evidence of his sources at the gurdwara as reliable, if he did not ask them how they knew that the claimant was involved in the attack. He said that people heard a conversation involving committee members whose names they could not give him, saying that they were going to teach Navpreet a lesson. Then he said that his sources (plural) heard the claimant talking to friends, saying that he would teach Navpreet a lesson. Later, when taken to paragraph 18 of his witness statement (which refers to one particular person having told him that it was the claimant's 'appointed thugs' who had attacked Navpreet), he said that person had been the only person who had claimed to have heard the claimant saying he would teach Navpreet a lesson. It had not been several people, but one. I asked Mr Bholowasia how it was that he had not mentioned before, either in his witness statement or in evidence, that his sources, whether one or several, had implicated the claimant himself. His answer was that he had been asked for more detail, so he was giving it. He was asked again: why had this not been mentioned before? He answered that it was in his article. That, of course, was not right; there is no suggestion in any of the articles that people mentioned the claimant as having said anything of the kind: indeed, at the time Mr Bholowasia had not even known the claimant's correct name. He said that people referred to the brother-in-law of the president, not to the claimant by name.
- Mr Bholowasia is plainly an intelligent man. He would have understood how important it would have been to have spelled out, in his witness statement and in his defence, that the claimant had been heard saying that he would teach Navpreet a lesson. Yet he did not put it to the claimant, nor mention it at all, even when questioned at length about his evidence for the claimant's alleged involvement in the attack, until a late stage of his cross-examination. I am sorry to have to say that I was quite unable to believe his evidence to the effect that his sources (singular or plural) had told him that the claimant, or even committee members, had been overheard saying anything of the kind, and I reject it. If that evidence had been true, he would have mentioned it in his witness statement and in his defence, and he would have mentioned it at the start of his evidence.
- Mr Bholowasia was asked how, if his sources had spoken to Navpreet, his whereabouts could be unknown: they must have known how to contact him. He replied that when he said that Navpreet's whereabouts were unknown, he meant unknown to him. People who were close to him knew where he was.
- Mr Bholowasia was asked about the gurdwara's internal investigation. He knew that it was going to take place, he said, but no-one rang him to give him dates until he got the date from a witness. He said that he might have rung Dr Garcha or Himmat Singh Sohi to ask if he could attend, but he could not remember. He did not wait for its conclusions, he said, because he did not know when it would take place. He accepted, in answer to a question from me, that he did not ask when it was going to take place. But had he been told that it was going to be held in the next few days, he would have waited. Had he known of the outcome of the investigation he would have included it in the article.
- Mr Bholowasia was asked what his evidence had been for suggesting, in the first three articles, that Dr Garcha had behaved badly, in the sense that he had 'taken advantage' of being a doctor to obtain Navpreet's discharge from hospital before Navpreet had been fully treated. He answered that Dr Garcha had brought Navpreet away from the hospital, that on the CD he had told the doctor at the hospital that he would take Navpreet, and that Navpreet was recorded on the CD as saying that he was in pain. That plainly does not amount to evidence that Dr Garcha took advantage of his position as a doctor to obtain Navpreet's premature discharge, which is what the first three articles say.
- The necessary elements of the defence of Reynolds privilege are that there must be a real public interest in the matter about which the material is published; it must have been reasonable to include the material complained of as part of the overall story; and the steps taken to gather and publish the information must have been responsible and fair (in other words, the journalism involved must have been responsible).
- In Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205, Lord Nicholls set out his non-exhaustive list of circumstances which would be relevant to the question of whether, in a particular case, the standards of responsible journalism had been met. The ten listed factors were as follows:
- It is necessary to remember that in Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44, [2007] 1 AC 359 at [53], the House of Lords warned that the so-called Nicholls factors should be approached in a practical and flexible manner, with due deference to editorial discretion. The factors should not be seen as a series of hurdles to be negotiated by the defendant, with the defence lost if one hurdle is knocked over. But they are a starting point, as Lord Brown observed in Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273 at [113], in determining the single question which he stated lies at the heart of Reynolds privilege, namely: could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest? In deciding that question, as Lord Brown stated, a host of different considerations are in play, depending on the facts of the case.
- This is not, of course, a case of reportage, that relatively rare form of Reynolds privilege where (as Lord Phillips put it in Flood at [77]) it is not the content of a reported allegation that is of public interest, but the fact that the allegation has been made. In that situation, the publisher is protected if he has taken proper steps to verify that the allegation has been made, and as long as he does not adopt it. This case is very different, because it is a case where the public interest in the allegation lies in its content, not in the fact that it was made. In the words of Lord Phillips at [78]-[79]:
- Lord Phillips went on to ask what the responsible journalist had to do to discharge his obligation. In a Chase level 1 case, such as this one, he had to satisfy himself, on reasonable grounds, that the claimant had in fact been guilty of theft and of conspiring to assault Navpreet Singh, and that he was at least partly responsible for threats to kill Navpreet and his family. In Lord Phillips' words, the journalist's defence cannot "get off the ground" unless he reasonably believed in the claimant's guilt.
- The factors relevant to the question of responsible journalism in this case seem to me to be these. I focus for this purpose on the first three articles, since they contain the most damaging material and they were the precursors of the articles that followed. I will refer primarily to the first article, since the second and third were in essence duplicates.
- The article asserted both the theft from the golak, and the claimant's guilt of it. It did not describe the theft, or the claimant's responsibility for it, in terms of allegations; it stated them as established fact. Yet as at 11 May, when the first article was published, there was no reliable evidence for the proposition that any money had been stolen, let alone that the claimant had stolen it. Mr Bholowasia relied on what he had been told by people at the gurdwara, none of whom, as he conceded, had first hand knowledge. As far as he was concerned, none of them had any basis other than gossip for what they were telling him. They were depending on nothing more than rumour and hearsay. Mr Bholowasia had of course received the letter from Gursewak Singh, which stated that Navpreet had caught the claimant stealing, after which Navpreet was threatened and then attacked, but he never made contact with Gursewak Singh to ascertain how he knew this information and how reliable it was. He did not even go round to his accommodation in order to talk to him, and was unable to say why not. Mr Bholowasia had heard part at least of the CD of the meeting involving Dr Garcha, which contained the assertion of a person who was probably Navpreet that money had been stolen by the president's brother-in-law. It was clear that an allegation of theft had been made against the claimant, but in my judgment there was no evidence on which Mr Bholowasia could reasonably have relied that money had in fact been stolen or that the claimant had stolen it. By contrast, he had the evidence of the president of the gurdwara that no theft had taken place, and (more importantly, because he had been a important player on 23 April) the statement of Bahadur Singh Keila that there had been no theft. He did not report Mr Keila's statement, and he reported the president's denial that theft had taken place with the words "there is no evidence and the CCTV was also off". That was a wholly inadequate way of stating the president's denial that a theft had taken place. Indeed, the words suggested that because the CCTV was off there was no evidence one way or the other.
- The article stated the claimant's guilt of conspiracy to assault Navpreet Singh. Again, the conspiracy was stated not as allegation but as established fact. The 'sources' from which Mr Bholowasia gleaned the allegation were people who, so far as he knew, had no direct knowledge of that of which they spoke. He admitted that he did not ask them how they knew that the claimant had been behind the attack. They were doing no more than peddling rumour. I discount Mr Bholowasia's belated claim that at least one of his sources claimed to have overheard the claimant discussing the need for an attack on Navpreet Singh, because, as I have said, I regard it as wholly incredible. The CD on which he placed great reliance (but the authenticity of which he did not confirm with Dr Garcha) did not contain any evidence, even double hearsay evidence, that the claimant had been behind the assault.
- Moreover, the conspiracy alleged was between the claimant and Himmat Singh Sohi. Mr Bholowasia gave evidence about the content of his calls to Mr Sohi. He did not suggest that he had even put to Mr Sohi the allegation that he had conspired with the claimant to assault Navpreet Singh.
- Mr Bholowasia did not contact the claimant for his side of the story. His attempts to do so were limited to asking Mr Sohi to get the claimant to call him, which he described as the best he could do. He does not seem to have thought it necessary to seek the claimant out directly, which would hardly have been beyond the ability of a normal responsible journalist. How he can have failed even to ascertain the claimant's correct name, given his conversations with Mr Sohi, is very difficult to understand.
- Mr Bholowasia did not suggest that he attempted to speak to any of those who had been present in the counting room, apart from Mr Keila.
- As at 11 May, when the first article was published, Mr Bholowasia knew that an internal investigation was under way into the allegation of theft. He seems to have made little if any effort to find out when it was to take place: he did not ask, and he said that no-one rang him to give him the date. He could not remember if he had asked Dr Garcha or Mr Sohi if he could attend the hearing. The hearing did in fact take place on 15 May, before the defendants published the second and third articles, yet Mr Bholowasia apparently did not know that it had taken place or what its findings had been. That can only have been because he made no effort to find out.
- It does not bear directly on the claimant, but in my judgment it is a pointer to Mr Bholowasia's preparedness to make serious allegations without adequate evidence to support them, that he felt it right in the first three articles to accuse Dr Garcha of taking advantage of his position as a doctor to obtain Navpreet's discharge from hospital before he could have been properly treated, on the basis of evidence that did not begin to justify any impropriety on Dr Garcha's part. When asked what the evidence was that Dr Garcha had behaved improperly, it was simply that Dr Garcha arrived at the hospital and brought Navpreet back, and that Navpreet said on the CD that he was in pain.
- Mr Bholowasia said that he regarded the story that he published about the theft and the assault on Navpreet Singh as being in the public interest, because it concerned a serious breach of trust at the gurdwara and a betrayal of its devotees. Moreover, even having heard all the evidence, he stated in cross-examination that what he wrote was true. But of course it is not determinative that Mr Bholowasia regarded the story as being in the public interest or that he believed it to be true. The public interest in learning of such allegations lies in the fact that they are, or may be, true. If they were, or might have been true, then in principle their publication would have been likely to have been in the public interest, for the reason that Mr Bholowasia gave. The question then is whether he took reasonable steps to satisfy himself that the allegations were true. In my judgment, for the reasons which I have attempted to state above, he wholly failed to conduct a reasonable investigation, and if, as I think he was saying, he believed that the allegations were true, then it was not a reasonable belief to have held. Expressed in terms of the Nicholls factors, Mr Bholowasia had no reason to believe that his informants had direct knowledge of the events to which they referred; the steps which he took to verify the information which he received were wholly deficient; very little effort was made to obtain comment from the claimant; the articles failed to set out the gist of the claimant's side of the story that there was no theft and that he was not involved in the events which followed despite the fact that Mr Bholowasia had learned from two sources that there had been no theft, and (in the case of the second and third articles) despite the conclusions of the internal inquiry on 15 May 2013; and the tone of the articles was wholly one-sided, adopting the allegations as established fact. I asked Mr Bholowasia whether he had considered running the articles in a way which reported the allegations neutrally, or at least in a more balanced way, but he did not appear to me to understand what I was suggesting. In the end, his answer was that he had considered that approach but the news had, he said, already spread through the community.
- So far I have focused on the first three articles. The fourth, which was an advertisement placed by others, repeated the allegation of theft and was published in the same issue as the second and third articles; the fifth (also published in the same issue) alleged, without any evidence at all, that the claimant was involved in sending gangsters to steal copies of the second defendant newspaper; and the sixth repeated the allegation that the claimant was a thief. There are no considerations which cause me to take a different view of the availability of Reynolds privilege as far as these articles are concerned.
- In short, I reject the defence of Reynolds privilege. If journalism of this calibre merited the protection of a public interest privilege, a defence of truth would be otiose.
- I mentioned above that the plea of privilege in the defence was confused. I have taken the plea at paragraph 33 (and paragraphs 31-32) of the defence to be a defence of Reynolds privilege, and that was the way in which it was approached by Mr Bholowasia both in his opening and in the course of the trial. His written skeleton argument did not make the position any clearer. However, I note that at paragraph 20 of his skeleton argument, under the heading 'Defence of qualified privilege', sub-headed 'Moral and/or social duty', a contention is advanced which was not, to the best of my recollection, advanced during the hearing. It reads as follows:
- Separately, after a paragraph asserting that the defendants carried out extensive research before publications, two paragraphs appear under the heading 'Defence that publication was in the public interest', which refers to Reynolds v Times Newspapers, Jameel v Wall Street Journal and Flood v Times Newspapers. Those paragraphs appear to be advancing a Reynolds defence, and I therefore assume that paragraph 20 of the skeleton argument must be intended to put forward a vestigial duty/interest qualified privilege, arguably heralded by the confused pleading of paragraph 33 of the defence. It should have been explored, of course, by request for further information. Had that been done, it would have been clear before trial what exactly the defendants' case was and on the basis of what factual background they advanced it, and if the case had been shown to be clearly unsustainable, it would have been struck out.
- Nonetheless, I ought to deal with this issue if I can. It is pleaded that "the words published related to matters of public and/or general concern, particularly in the community to which the words were published". Pausing there, there was no evidence as to the composition of the community to which the words were published. It is also pleaded that "when published the matters remained of current concern to the readership and the defendants had a moral and/or social duty to publish the words complained of and the public had a corresponding legal interest in receiving the information".
- Apart from privilege at common law for reports of the proceedings of the courts and Parliament, the common law world was not receptive to an extension of qualified privilege to publication in the press and broadcast media until the decision in Reynolds v Times Newspapers. As far as classical duty/interest privilege was concerned,
- The nearest that the pre-Reynolds common law came to extending qualified privilege to media publication is probably the decision in Blackshaw v Lord [1984] QB 1, where the Court of Appeal rejected a plea of privilege seeking generic protection for fair information on a matter of public interest stated in a newspaper report. The conclusions of the court were obiter, for it was unnecessary to revisit the trial judge's ruling on qualified privilege, but the court was persuaded nonetheless to consider it. Stephenson LJ considered the authorities at some length and stated, at pp26-27:
- Dunn and Fox LJJ reached similar conclusions. At p42, Fox LJ expressed his views shortly. He referred to the wide principle stated by Pearson J. in Webb v Times Publishing Co [1960] 2 QB 535, 570, that "As the administration of justice in England is a matter of legitimate and proper interest to English newspaper readers so also is this report [of foreign proceedings] which has so much connection with the administration of justice in England. In general, therefore, this report is privileged". Having referred to that principle, Fox LJ went on:
- As is well known, the House of Lords in Reynolds v Times Newspapers extended the scope of qualified privilege to the publication of defamatory material to the world at large, where the publication was on a matter of public interest and it was the product of responsible journalism, a test which (in sharp contrast to classical qualified privilege) involved consideration of all the circumstances of the publication including the nature, status and source of the material.
- In this case, I have considered and rejected the defence based on Reynolds. On the face of it, it would be remarkable if there were still available a defence of qualified privilege for media publication which could base itself on duty and interest without concerning itself with the difficult questions of responsible journalism, and in my judgment the weight of authority tends strongly against such a conclusion: see for instance Hays plc v Hartley [2010] EWHC 1068 (QB) at [69] and Seaga v Harper [2008] UKPC 9, [2009] 1 AC 1 at [15], where the Board rejected an argument by the defendant that if (as the trial judge had found) there was inadequate care to justify a finding of Reynolds privilege for publication to the world at large, there was a defence of traditional qualified privilege:
- Even if such a defence could be said to have survived Reynolds and its successor cases, it would certainly need to concern a matter of the gravest and most urgent public importance, in circumstances where there was a duty to communicate the matter to the readership as a whole.
- There was little evidence about the readership of Pardes Weekly. It was accepted that each of the 8000 copies distributed was seen by about ten people, and Mr Bholowasia gave evidence that each copy had three sections, written in English, Punjabi and Hindi, with the same material albeit written differently for different community interests. In fact, it seems likely that the first article was published only in English. The second and third (both in the same edition) were in Punjabi and English respectively, and the fourth to sixth in Punjabi only or at least, not in English. Beyond Mr Bholowasia's evidence that the same material was generally covered in each of the three languages, there was no specific evidence about publication of the words complained of in Hindi, no doubt because the claimant, for whatever reason, did not complain of it. The newspaper was distributed to many different outlets in Southall, including shops and at least one Hindu temple, and it was free. No doubt it was read by many Sikhs, whether they spoke English or Punjabi or both, but it will also have been read by Hindi speakers, who if religious are likely to have been members of the congregation at a Hindu temple rather than a Sikh gurdwara, and by English speakers who may or may not have had any interest in the administration of the gurdwara. It may well be that the articles complained of would have been of great and legitimate interest to members of the gurdwara sangat, but there would also have been a substantial readership for whom the internal goings on at the gurdwara will have been of little or no interest.
- Given that the subject matter of the articles would only have been of interest only to a part of the readership (there is no evidence as to how big a part), referred to allegations which were still under investigation by police (and, as at 11 May, by the gurdwara; but refuted by 18 May), and could not be said to have been of the gravest immediate concern to the public at large, there would have been no prospect whatever of a classical plea of duty/interest privilege succeeding even before the Reynolds jurisprudence developed. Still less could it possibly succeed now that a distinct jurisprudence has been developed which is designed to accommodate the reasonable requirements of the press and media.
- As I have said, there is a plea of malice, which is only of any relevance to the plea of duty/interest qualified privilege, which I have found to be hopeless. It would therefore be disproportionate to state my conclusions on malice at any substantial length.
- The case on malice is pleaded in very bald and general terms in the Reply. It is said that the defendants acted irresponsibly (which would not be enough), recklessly and with malice. The particulars are hardly much fuller. It is pleaded (1) that the defendants made very serious criminal allegations but made no serious attempt to carry out even basic lines of enquiry and investigation before publication; (2) that their conduct amounts to a wanton disregard for the truth and any sense of fair enquiry or fair play; (3) that no reasonable newspaper or newspaper proprietor would publish such gravely serious allegations against an individual, given its severity, without conviction or other adjudication of guilt; and (4) that the real ulterior and malicious motive behind Mr Bholowasia's allegations was his personal animosity and wish to oust the incumbent committee of the gurdwara, of which the claimant's brother in law, Mr Sohi, was president.
- I heard very little argument from either side about malice, I surmise because (at least as far as the claimant's camp was concerned) it was thought to be a remote fall-back in the unlikely event of the defendants succeeding on duty/interest qualified privilege. However, that has not made my task any easier.
- The traditional approach to malice since Horrocks v Lowe [1975] AC 135, is that it is for the claimant in a libel action to prove the defendant malicious, in the sense of demonstrating that the dominant motive in publishing the words was not to use the occasion of privilege for its proper purpose but to damage the claimant's reputation. That motive would be inferred from proof that he had no honest belief in the truth of the words complained of. Recklessness can be enough. Thus, malice can be demonstrated if a claimant proves the defendant to have been genuinely indifferent to the truth or falsity of the defamatory allegations. In that event, he would be treated as if he knew them to be false. Even a positive belief in the truth of what was published might not be enough to negative malice if it could be proved that the defendant misused the occasion for some improper purpose, for example to give vent to personal spite or ill-will, or (as is suggested here) to give vent to his animosity against the then current gurdwara committee.
- In this case, it is not suggested that Mr Bholowasia knew that the allegations were false. The suggestion is of an unparticularised recklessness in other words, an indifference to the truth or falsity of the allegations.
- It is important to understand what indifference to the truth does and does not entail. In Horrocks v Lowe at p150 Lord Diplock dealt with the issue thus:
- Mr Bholowasia told me that he did not know the claimant and had no animus towards him. That is not determinative of the issue, but so far as it goes, I accept it. After all, he did not even know the claimant's name.
- In my judgment, Mr Bholowasia was, and remains, convinced of the truth of the allegations which he published, notwithstanding the paucity of evidence for them. His belief is based on the letter which he received from Gursewak Singh, buttressed by what I regard as an erroneous interpretation of the CD, and set in stone by the evidence of Prem Singh Randhawa, who contacted him many months after the articles were published. He is certain that the evidence of the claimant's witnesses has been fabricated to cover up what he regards as the claimant's wrongdoing. No amount of evidence will change his mind: for him, every piece of evidence is all fabricated with the same end in view. That mindset is prejudiced and irrational, but I cannot find that it amounts to malice.
- It was put to Mr Bholowasia in cross-examination that his true object was to cause damage to the then ruling committee and its president, Mr Sohi. That was why, Ms Kumar suggested, he was not concerned to get the claimant's name right: what mattered was that he was the brother-in-law of the president, because the mud he was throwing was aimed at the president, not the claimant. Mr Bholowasia denied that, and I see no reason not to accept his denial. There was no cogent evidence to the contrary. I did not regard the photographs of him being honoured by the new committee which came to power in 2014 as showing that he was their creature, but even if they did demonstrate an association on his part with the Lion Group (which he denied), that would not be enough: they did not show, and it could not be inferred from them, that his motive in publishing was to damage the chances of the incumbent faction. I was, I confess, troubled by the tone of an article which he published in February 2008, during an earlier election campaign, which referred to what he called the 'Sohi thug family', but he insisted that he was simply reporting (albeit in florid terms) the fact that a member of the Lion group had been attacked. Ultimately, I have to remember that in Lord Diplock's words qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed (in this case, the Sohi group rather than the claimant) or was indignant at what he believed to be that person's conduct and welcomed the opportunity of expressing it.
- My conclusion is that there is insufficient evidence to convict the defendants of malice.
- I now turn to the assessment of damages. I will first briefly summarise the claimant's evidence about the libel and its effect on him.
- Unhappily, the claimant and his family were already under great stress as at 23 April 2013. His brother-in-law's mother died the next day; his sister had been diagnosed with cancer and was in and out of a hospice; and his mother was seriously ill in hospital. The article was brought to his attention by a family member: he did not normally read Pardes Weekly himself. It was his evidence that in the Sikh community, to accuse someone of stealing from the golak is one of the most terrible things that could be said of them. The other accusations were bad enough, but to accuse him of stealing from the holy donation box was incredibly hurtful, and he found that he had to try to take his mind off it to relieve the mental pain which the accusation caused.
- He felt that his and his family's long-standing reputation of volunteering in the Sikh community had been ruined by the allegations against him. He felt traumatised and paranoid that everyone was talking about him and pointing their fingers at him; he found acquaintances intentionally ignoring and avoiding him; and he had to explain what had happened to members of his family from across the United Kingdom and Canada, who rang to ask. On one occasion his 11-year-old granddaughter came across the article (I believe he meant the first article) on the Internet, and he found it one of the most difficult and distressing experiences of his life to have to explain to her that he was not a thief, and that the things that people were saying about him were lies. He felt a great loss of energy, and he suffered feelings of despair. He felt that the period since the publication of the articles had been one of the worst periods of his life.
- My task is to award the claimant general damages for libel. An award of general damages for libel serves three functions: first, to act as a consolation to the claimant for the distress and embarrassment which he has suffered from the publication of defamatory words, secondly, to compensate for the injury to his reputation; and thirdly, to act as vindication for his reputation: see most recently Cairns v Modi [2012] EWCA Civ 138, [2013] EMLR 8 at [21ff]. I bear in mind the overriding principle that, in order to comply with Article 10 of the European Convention on Human Rights, an award of damages must be proportionate to the legitimate aim of compensating the claimant for the injury and distress which he has suffered and of providing him with vindication.
- The need for damages to provide vindication was explained in the case of Broome v Cassell [1972] AC 1027 at p.1071 by Lord Hailsham LC who said: "Not merely can (the libel plaintiff) recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."
- That tendency of 'percolation', as it has been called, has been given new force by the internet, which creates the potential for libels to spread 'virally'. That is of significance here, in the light of the claimant's evidence that his son has told him that people were calling him a thief on various websites, including Twitter and Facebook. The percolation factor was agreed by the Court of Appeal in Cairns v Modi at [27] to be a legitimate factor to be taken into account in assessing damages.
- It has been said that in some circumstances a reasoned judgment may provide degree of vindication: see Purnell v Business Magazine Ltd [2008] 1WLR 1. Laws LJ, who gave the main judgment, held that a prior narrative judgment rejecting a defence of justification was capable of providing some vindication of a claimant's reputation. However, in Cairns v Modi the Court of Appeal was disinclined to accept any such general principle, regarding it as unlikely that most lay observers would read a detailed judgment: they would be more interested to find out the amount awarded by way of damages. It seems to me that this is not a case where most people are likely to read a detailed analysis of the judgment of the court, although it may be that there will be some reporting of it in the local press. I give little weight, therefore, to the impact of a reasoned judgment.
- Factors which may be relevant to the level of general damages include the position and standing of the claimant and the gravity of the allegation, especially insofar as it closely touches the claimant's personal integrity and his reputation. As Sir Thomas Bingham MR said in John v MGN [1997] QB 586 at p.607:
- Far from apologising, Mr Bholowasia has asserted the truth of the allegations in the course of cross-examination of the claimant, and he has stated that even after hearing all the evidence, he still regards his allegations as being true.
- I must take into account the degree of distress caused to the claimant, judged objectively. The claimant gave his evidence with a quiet calm and dignity, and is not, I judge, a man who wears his heart on his sleeve. But I entirely accept his evidence about the impact of these allegations upon him, and the immensely stressful experience that he has been through, an experience which can only have been made worse by Mr Bholowasia's persistence with his plea of justification and his assertions, even at trial, of the truth of the allegations. However, I bear in mind that mere persistence in a plea of justification which is run in a reasonable way but fails, even if the court regards it as not only wrong but weak, is not enough to justify an award of aggravated damages: the plea would have to be completely insupportable (Oriental Daily Publisher v Ming Pao Holdings Ltd [2012] HKFCA 59, [2013] EMLR 7 at [132]). It would not be right to characterise the plea as insupportable in this case, given the evidence of Prem Singh Randhawa on the central issue of theft.
- I have dealt with the extent of readership of the articles, which is likely to have been some 80,000. Others will have read them online, but I have no evidence about the numbers involved. That is a large number, although small compared with the readership of a national newspaper. Nonetheless, the damage appears primarily to have been done among the claimant's own Sikh community, and publication outside that group is probably of less concern to the claimant than publication to those with whom he has daily dealings.
- The conventional ceiling for libel damages, taking into account the uplift generated by the Jackson reforms, is now of the order of £300,000 (see Cairns v Modi at [25] and Simmons v Castle (No.2) [2012] EWCA Civ 1288, [2013] EMLR 4).
- The court is entitled to have regard to previous awards made by judges sitting alone. It is true, of course, that the facts of each case vary to such a degree that unless another first instance decision is almost on all fours with the facts of the case being considered, such comparators are rarely helpful. However, Ms Kumar referred me to three cases:
- Mr Bholowasia has given evidence about his slender means. His means are irrelevant to this exercise, but it may well be that the quantification of damages will be to some degree academic. In any event, I have to approach the question of damages in the same way as a jury would, giving a verdict in effect without a reasoned judgment. Taking everything into account and looking at it in the round, it seems to me that a proper award of general damages for these libels is £50,000. That is the award which I make.
RICHARD PARKES QC :
INTRODUCTION
THE PUBLICATIONS COMPLAINED OF
Article 1
"BROTHER-IN-LAW OF SRI GURU SINGH SABHA SOUTHALL'S PRESIDENT FOUND RED-HANDED STEALING GOLAK'S MONEY
Southall (Pardes Bureau): With great disappointment we have to report that those chosen devoted people on whom we repose our trust and confidence as gatekeepers of our faith have today deceived us with their insatiable thirst for greed and ravenousness. They have chosen to become poachers while we thought them are to be gatekeepers of our places of worship. When the congregation puts trust in people and hands over the keys of the Gurdwara and the same trusted people fill their own pockets with the Golak money, then what worse could we ever expect in life? Today we are facing a crisis of deceit from people whom we trusted not only with our devotion but also with God's money.
Whilst this has been going on for a long time but last week when Gurdwara donation money box (Golak) was being counted than Navpreet Singh, an employee appointed by the current committee, saw this he could not ignore it. This Gursikh took courage and held Onkar Singh's (brother-in-law of Sri Guru Singh Sabha Southall's president) wrist while putting money in his pocket and handed him over to Bahadur Singh Keila (Acting Treasurer whose wife is the Treasurer of the Sabha). To hide the fact from other people over there Bahadur Singh took Onkar Singh to the office on the first floor and got the money out of Onkar's pocket. After this Onkar Singh disappeared from there but when some honest people in the committee raised this matter then the keys were taken from Onkar Singh and since then he is hardly seen around.
According to the information received Onkar Singh did not let the matter end here, he conspired with his brother-in-law and others and came up with a plan and in accordance with this plan sent four thugs to teach Navpreet Singh a lesson. Three of these thugs had covered their faces except for a tall young man. These four thugs waited outside 11 Beaconsfield Road and as soon as Navpreet Singh came out from his residence at about 4:45 am to go to join his duties at Park Avenue Gurdwara they attacked him causing severe injuries to his head, arm and legs. Ambulance and police had to be called. Soon after Dr Parvinder Singh Garcha, the Sabha's General Secretary with a number of his confidants. They followed the ambulance and reached Ealing Hospital.
At the hospital Dr Garcha took used advantage of being a doctor, impressed upon the nurses and brought Navpreet Singh with him before he could have received full treatment. He was threatened by various people that he would lose his life and even told him that they would do that even in India. After these threats Navpreet whereabouts became unknown. When "Pardes Weekly" received a heart touching letter from a friend of Navpreet Singh's friend, "Pardes Weekly" immediately contacted Met Police Commissioner to ensure Navpreet Singh's safety and security. Police informed "Pardes Weekly" that they have two reports and are in contact with Navpreet Singh. The thugs have threatened Navpreet Singh so much that he is too scared to fully brief the police about his own as well as his family's safety. Ealing Police Spokeswoman said that "We can confirm police were called by London Ambulance Service at approximately 0510 hours on Saturday 27 April to reports of an assault in Southall, UB1. The victim, a 26 year old man, walking along Park Avenue, when he was set upon by around for unknown of Asian males. He was treated at the scene for non-life-threatening injuries. He was taken to a West London hospital and has since been discharged. There have been no arrests and enquiries continue." Anyone with information is asked to call police on 101.
When "Pardes Weekly" contacted Himmat Singh Sohi, the Sabha's President, to make enquiries he stated that there is no evidence and the CCTV was also off. It is worth observation and very obvious that when everything from Gurdwara keys to Golak keys (money box) and even from CCTV footages to offenders themselves are hand in gloves with each other - then could we expect for any form of evidence to emerge?
When Bahadur Singh was contacted about this, he made an excuse stating he was very busy so we should contact Dr Garcha, the General Secretary.
It is not surprising that Himmat Singh Sohi's brother-in-law Onkar Singh was caught stealing red-handed but amazingly surprised to note that so-called volunteers are shamelessly trying to cover up the matter.
"Pardes Weekly" also contacted the Trustees and they said that whilst they have received information about this but they can only comment after making enquiries. You must remember that "Pardes Weekly" is the only paper which fearlessly reports thuggery and dishonesty at Gurdwaras to safeguard the Gurdwara interests and will continue to do so."
i) he was caught 'red-handed' stealing money whilst in a position of immense trust and duty to his faith and his community; a position which demanded utter integrity, but in breach of which he stole money from the holy donation box;ii) he conspired with others to arrange for four 'thugs' to carry out a serious assault, causing severe injuries to the head, arms and legs, to the man who had seen and reported the claimant for the theft from the donation box;
iii) he was involved in and/or partly responsible for threats to kill the man and his family, who had seen and reported the claimant for the theft, which caused this man (Navpreet Singh) to be too scared to fully 'brief' the police for fear of his own and his family's safety.
Articles 2 and 3
Article 2
"BROTHER-IN-LAW OF SRI GURU SINGH SABHA'S SOUTHALL PRESIDENT FOUND RED HANDED STEALING CHARITY CASH BOX (GOLAK)
With great regret I have to write that when the guards start to rob then only God is the saviour. When Sangat (congregation) trusted devotees and placed their confidence in them and handed over the keys to the charity cash box to look after it, if those people put the donated money in their own pockets then who will be the vanguard.
According to the information this activity has being going on for a long time. This time their own employee Navpreet Singh saw this happening. He could not help it, he took courage and got hold of Onkar Singh in front of the persons who are counting money. He handed over him to Bahadur Singh Keila, husband of the treasurer of the committee. To hide the fact from other people, Bahadur Singh took Onkar Singh to the office on the first floor and got the money out of his pocket. After this Onkar Singh disappeared from the scene. When other honest persons who were there raised their voice, then keys of the charity box were taken from Onkar Singh Rai. He felt ashamed and has never shown his face in the Sangat.
According to the information Onkar Singh did not stop here. He made a plan in collaboration with his brother-in-law Himmat Singh Sohi to teach a lesson to Navpreet Singh. So according to the plan they sent four musclemen, among these four, three of them covered their faces but the fourth tall person did not cover his face. These four persons were waiting for him in front of No.11 Beaconsfield Road Southall in morning. When Navpreet Singh at 0445 left the house to take up his duties, they attacked him and he was seriously injured, his head, arm and hip was badly hurt. Ambulance and police were called. By the time the general secretary Parvinder Singh Garcha arrived there were some men and followed the ambulance and reached at Ealing Hospital. Arriving at hospital Mr Garcha took undue advantage of his GP status. He pursued the nursing staff and took Navpreet Singh back with him. He did not even received proper treatment. He was so much threatened, that he will lose everything here and in India. After receiving these threats Navpreet disappeared.
When a friend of Navpreet wrote this tragic story to the Pardes Weekly then considering the safety and security of Navpreet, Pardes Weekly contacted the Met police. In response, police revealed that they have two reports concerning Navpreet and Navpreet is also in touch with the police. The police also told that they have been already informed by the ambulance. They disclosed that the investigation is going on regarding this matter but there is no arrest. Police also announced to the people, if anyone got any information about this case, the person should immediately inform the police by dialling 101. On the other side Navpreet is so much frightened and in view of his and his family's security, he is not telling the story explicitly.
When Pardes Weekly asked the president, Himmat Singh Sohi, about this matter, he replied "There is no proof of it, and CCTV was also not on". It is worth mentioning that they own CCTV, charity cash box, keys also with them and thief also belongs to them then how the proof can be traced. When Bahadur Singh was asked about this, he made an excuse that he is too busy, so general secretary Mr Garcha can be contacted.
It is not surprising that Himmat Singh Sohi's brother-in-law Onkar Singh was caught stealing, astonishing thing is that in the garb of a perfect sikh, these so-called Gursikh volunteers are covering the matter. Pardes Weekly has also talked to the trustees but their reply was that they can only say something after the enquiry. We have some information about his. Remember that Pardes Weekly is the only paper which in the interest of the gurdwara dauntlessly reports about dishonesty and hooliganism to the Sangat and will continue to do so."
Article 3
Article 4
"DEAR CONGREGATION
[There follows a Sikh greeting which is not translated]
Theft of Gurdwara's charity box cash box (Golak) news came to light through last week's Pardes Weekly. This unfortunate incident must be condemned as much as possible .
. We the Lion Group demand an independent enquiry committee of theft of charity cash box and also advise that Sohi group and all members to resign on ethical grounds. If they do not resign then we request trustees that they should use their powers to dismiss the committee. Until the new election and report of the theft enquiry committee comes out. Till that time independent receiver should be appointed. We are, Lion Group."
Article 5
"SRI GURU SINGH SABHA'S THIEVES HAVE STOLEN THE PARDES WEEKLY PAPER FROM THE SHOPS
Pardes Weekly Chief Editor's life was threatened
It is so sorry to write that last week Sri Guru Singh Sabha's committee sent the hired gangsters to take away Pardes Weekly paper. This misdeed revealed their real face. This proves that is not only President's brother-in-law is a thief but this is a gang of thieves.
They have stolen the paper from all the shops by saying that they need this paper for Gurdwara. They tried every way to snatch paper from people and took away papers from the van as well.
Due to their activities and on demand of readers we are repeating the news again. These disgusting activities at some places are captured by the CCTV and it has been reported to the police.
They have become so mean, that they are threatening to kill Jaskaran from Pakistan on telephone.
Scotland Yard is taking this matter seriously and will soon find out the facts so that Pakistani links can be brought to light."
Article 6
"THE TALE OF SRI GURU SINGH SABHA GOLAK THEFT
Have I told an untruth, no I have not, no I have not
Pardes Weekly, in the last few days Sri Guru Singh Sabha golak theft stories have been published. Once again this has caused uproar. Those who are against us in exposing this have used various methods to disguise the truth.
Since the theft was caught it is from that day they have organised a cover-up by publishing in other Southall papers. They have published leaflets of this and distributed them within the gurdwaras. They cross the limits when they sent these leaflets to all members homes. To cover their tracks they have spent an enormous amount of sangat's Golak monies. To top it all they have collected Pardes Weekly papers in order to stop this distribution of news. They have published in other papers advertisement in order to justify their claims of being truthful.
They have written in other papers that Pardes Weekly spreads untruths. Dear loving readers please note we only write the truth and will only ever write the truth.
Their untruthfulness came to light when Pardes Weekly office received a CD of their misdeeds. The contents of this CD of 27 April is a recording of the conversation of Dr Garcha and the victim which separates the water from the milk. In this CD the general secretary of Sir Guru Singh Sabha admits whatever happened should not have taken place and by his own admission accepts responsibility and we are ashamed. In gurdwaras no such incidences should take place and he also asked the boy not to give anyone a statement.
He also accepted that he has two cameras CCTV footage and the thief has been removed from his duty at the gurdwara, however the truth is that the keys of the gurdwara are still with the brother-in-law of Himmat Singh, Onkar Singh aka Upkar Singh aka Abkar Singh.
In this CD, Deepa of Norwood Green Hall's making a scheme is identified. The police have come to Pardes Weekly and collected this CD.
Pardes Weekly has received many threats regarding this matter because Pardes Weekly has brought to light of the sangat the theft and thuggery going on at the gurdwara, but they are using all means legal and illegal to cover up this matter.
Dear loving readers you all know that we always support the truth and will continue to do so. We are always willing to stand up for the truth and respond to tit for tat.
Golak theft exposing CD has arrived at Pardes Weekly office."
i) there is a CD of a recording of 27th of April between a Dr Garcha, the General Secretary of the Temple, in which he admits to a victim that the thief has been removed from his duty at the Temple but that the keys to the Temple are still with him (ie the claimant is named as being the key holder and therefore the thief);ii) the claimant is involved in or implicated in the threats being made to the defendant's staff following the revelation of a theft by the claimant and revelation of the thuggery going on at the Temple.
DEFENCES
Justification
i) The defendants' receipt of a letter from a person who described himself as Navpreet Singh's friend, which confirmed the danger facing Navpreet, a worker at the gurdwara who witnessed the claimant take money from the Golak;ii) A witness statement (not served) from an un-named person who worked alongside Navpreet and provided 'compelling evidence' confirming the claimant's 'repeated thefts' from gurdwara funds;
iii) Reports made to the police, apparently by the first defendant;
iv) The contents of a CD containing recordings of Navpreet Singh in various conversations with senior executive members of the gurdwara and a friend; and
v) The theft of the newspapers on 11 and 12 May 2013 from a Hindu temple in Southall and a shop on King Street, Southall, and witness evidence of those who observed the theft.
Privilege
i) The words published related to matters of public and/or general concern, particularly in the community to which the words were published;ii) The steps taken to publish were fair and reasonable;
iii) By the time they were published, extensive research had been undertaken into the matters alleged;
iv) On receipt of the information, the allegations were corroborated as far as possible and attempts made to put the allegations to the claimant and obtain a response;
v) When published, the matters remained of current concern to the readership and the defendants had a moral or social duty to publish the words complained of and the public had a corresponding legal interest in receiving the information.
" that even if the attempts to speak to those individuals had not been made, the defendants were still justified in making the publications on grounds of the extremely serious nature of the disclosures. The publications were justified as they related to the conduct of individuals in a public office, or closely related to individuals in a public office. They were fair comment in that they related to matters of a compelling public interest and the defendants believed that to be the case at the time of publication."
Honest comment
THE EVIDENCE: JUSTIFICATION
23 April 2013: the alleged theft
The assault on Navpreet Singh and threats made against him
Question: When did you hear of the beating to Mr Navpreet Singh?
Answer: When I asked one [inaudible] at the Park Avenue gurdwara where was Navpreet this morning, he told me he's got beaten up in the morning that's when I heard.
Question: On 27th?
Answer: I don't know (inaudible] exactly what day, the day that he was beaten up, that morning. It was half past six, or something [inaudible]. I asked somebody where is Navpreet, he said he was beaten up.
Removal of copies of Pardes Weekly
Threats to defendants
Police investigations
Conclusion on justification
REYNOLDS PRIVILEGE
The evidence
"To the chief editor: I feel hurted while writing these words as I am a worker of gurdwara and being an employee of gurdwara I am trying to do my duty. "
On 23rd of April 2013, at the time of counting charity box money, Onkar Singh, brother-in-law of President Himmat Singh Sohi, picked money and put in his pocket. This was going on for a long time but this time Navpreet Singh, friend of mine who is an employee of gurdwara, could not bear it. He held Onkar Singh's wrist. Bahadur Singh who is a husband of the treasurer took him to the office and made him to take the money out his pocket and tried to close the chapter then and there. Navpreet Singh was threatened that if he disclosed this news outside, he will be sacked from his job and threatened that he could lose his life. His visa is going to finish soon and he will not be spared in India as well.
On 27th of April 2013, when Navpreet as usual left his house for workplace at 5:00 AM, five gangsters attacked him and bashed him badly and threatened that if he uttered his name again, they will kill him. I am writing this, because this sort of scandalous behaviour and theft of charity box should not prevail. Please keep it as secret.
Your obedient
Gursewak Singh
11, Beaconsfield Road, Southall."
The elements of Reynolds privilege
i) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.ii) The nature of the allegation, and the extent to which the subject matter is a matter of public concern.
iii) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
iv) The steps taken to verify the information.
v) The status of the information. The allegation may have already been the subject of investigation which commands respect.
vi) The urgency of the matter. News is often a perishable commodity.
vii) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
viii) Whether the article contained the gist of the plaintiff's side of the story.
ix) The tone of the article. A newspaper can raise queries or call from investigation. It need not adopt allegations as statements of fact.
x) The circumstances of the publication, including the timing.
In such a case the public interest in learning of the allegation lies in the fact that it is, or may be, true. It is in this situation that the responsible journalist must give consideration to the likelihood that the allegation is true. Reynolds privilege absolves the publisher from the need to justify his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it. Lord Hoffmann put his finger on this distinction in Jameel's case [2007] 1 AC 359, [62] when he said
'In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases ('reportage') in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.'
Thus verification involves both a subjective and an objective element. The responsible journalist must satisfy himself that the allegation that he publishes is true. And his belief in its truth must be the result of a reasonable investigation and must be a reasonable belief to hold.
Conclusions on Reynolds privilege
DUTY/INTEREST QUALIFIED PRIVILEGE
"The defendants had a moral and/or social duty to publish the articles. There was no malice intended by the defendants. The alleged theft and violence concerned a public matter, therefore it was a matter of public policy and the common convenience and welfare of society that the defendants published the articles. In undertaking their moral duties, the defendants informed police of the complaint letter received and also the CD. See correspondence between the defendants and the police "
The fundamental principle was that a statement was protected by privilege only if the publication of it was to persons who had a proper interest or duty in the matter with which it was concerned, and the public as a whole was not generally regarded as having a relevant interest or duty. The media defendant (or other defendant who caused his statement to be published in that way) was in no different position from anyone else and had to show the relevant reciprocity of duty and interest. Such a duty only arose:
'where it is in the interests of the public that the publication should be made, and will not arise simply because the information appears to be of legitimate public interest'.
A privilege for publication to the world at large was, in English law, the exception rather than the rule, even if the subject matter was politics or public affairs. (Gatley on Libel & Slander, 12th ed., para 14.1, citing Cantley J in London Artists v Littler [1968] 1 WLR 607 at 619).
"I cannot extract from any of those authorities any relaxation of the requirements incorporated in that question. No privilege attaches yet to a statement on a matter of public interest believed by the publisher to be true in relation to which he has exercised reasonable care. That needed statutory enactment which the Committee on Defamation refused to recommend: see paragraphs 211-215. "Fair information on a matter of public interest" is not enough without a duty to publish it and I do not understand Pearson J.'s ruling in Webb v Times Publishing Co [1960] QB 535 that a plea of a fair and accurate report of foreign judicial proceedings was not demurrable, was intended to convey that it was enough. Public interest and public benefit are necessary but not enough without more. There must be a duty to publish to the public at large and an interest in the public at large to receive the publication; and a section of the public is not enough.
The subject matter must be of public interest; its publication must be in the public interest. That nature of the matter published and its source and the position or status of the publisher distributing the information must be such as to create the duty to publish the information to the intended recipients, in this case the readers of the "Daily Telegraph." Where damaging facts have been ascertained to be true, or been made the subject of a report, there may be a duty to report them (see, e.g., Cox v Feeney 4 F&F 13i; Perera v Peiris [1949] AC 1 and Dunford Publicity Studios Ltd. v. News Media Ownership Ltd. [1971] N.Z.L.R. 961), provided the public interest is wide enough: Chapman v Ellesmere [1932] 2 KB 431. But where damaging allegations or charges have been made and are still under investigation (Purcell v. Sowler, 2 C.P.D. 215 ), or have been authoritatively refuted (Adam v Ward [1917] AC 309), there can be no duty to report them to the public.
.There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs; but there is nothing of that sort here."
"I think that states the principle rather too widely. It is necessary to a satisfactory law of defamation that there should be privileged occasions. But the existence of privilege involves a balance of conflicting pressures. On the one hand there is the need that the press should be able to publish fearlessly what is necessary for the protection of the public. On the other hand there is the need to protect the individual from falsehoods. I think there are cases where the test of "legitimate and proper interest to English newspaper readers" would tilt the balance to an unacceptable degree against the individual. It would, it seems to me, protect persons who disseminate
"any untrue defamatory information of apparently legitimate public interest, provided only that they honestly believed it and honestly thought that it was information which the public ought to have" (See London Artists v Littler [1968] WLR 607, 615)".
Their Lordships consider that this was a misconceived argument. The Reynolds test is more easily satisfied, being a liberalisation of the traditional rules, and it is more difficult to bring a case within the latter. They are satisfied that the publication was not covered by traditional qualified privilege, for the element of reciprocity of duty and interest was lacking when the defendant knowingly made it to the public at large via the attendant media. If privilege was to be successfully claimed, it could only be under the Reynolds principles and, as they have said, those principles applied to the case.
MALICE
" indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or less degree according to their temperaments, their training, that intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be honest, that is, a positive belief that's the conclusions they have reached are true. The law demands no more."
QUANTUM
"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. In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. "
i) In Miller v Associated Newspapers [2012] EWHC 3721 (QB), the claimant sued on a story in the Daily Mail that he was a willing beneficiary of improper conduct and cronyism because of his friendship with the deputy commissioner of the Metropolitan Police over the award of a multi-million pound contract to his management consultancy. The defence of justification failed at trial, and there was no apology. Damages were assessed at £65,000.ii) Cambridge v Makin [2011 EWHC 12 (QB) was a case in which the claimant was accused in an email sent to about 1000 members of her own profession of abusing her position as a director of a not for profit company, which administered a register of professional linguists for public sector bodies, by granting a licence from which she stood to gain personally, in conflict with the interests of those whom as a director of the company she was bound to protect. Malice was established. Damages were assessed at £30,000, which took account of a settlement of £30,000 already received from the second defendant.
iii) Finally, Ms Kumar referred to Flood v Times Newspapers Ltd [2013] EWHC 4075 (QB), where the claimant police officer sued on an article published in The Times Online over a two year period to the effect that there were strong grounds to believe that he had abused his position as a police officer with the Metropolitan Police Extradition Unit by corruptly accepting £20,000 in bribes from some of Russia's most wanted suspected criminals in return for selling them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges, and had thereby committed an appalling breach of duty and betrayal of trust, as well as a very serious criminal offence. Nicola Davies J awarded him £45,000 by way of general damages, together with £15,000 for aggravation by reason of the defendant's conduct.