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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/07/2016

Mr Justice Dingemans:

Introduction

1. This is a trial of an action for slander arising out of words said to have been spoken on the telephone by the Defendant, Harpreet Singh Ghuman ("Mr Ricky Ghuman") relating to the Claimant, who is his brother, Sukhjit Ghuman ("Mr Sukhi Ghuman") in late November 2013.
2. The background to this trial was a very serious falling out between the brothers in November 2013. The brothers have managed to drag immediate and extended family members and friends into their dispute, forcing them to choose sides in the dispute, and have then accused many of the witnesses who had chosen to give evidence for the other brother's side of giving false evidence. In such a contentious atmosphere, which appears to have affected almost all the witnesses, I have had to be particularly careful in accepting the evidence given on either side.
3. In my judgment both brothers have caused disproportionate amounts of costs to be incurred. When giving evidence both brothers expressed sadness that the litigation continued, although at the same time both blamed the other or the other's legal representatives for the continuation of the litigation. The proceedings were described in an earlier interim hearing by HHJ Moloney QC sitting as a High Court Judge as "a swollen and costly family dispute" and despite efforts by the brothers (for which, again, each blames the other) to go into the history of their relationship, HHJ Moloney QC made an order preventing evidence being adduced, without permission of the trial judge, of matters pre-dating October 2013 save for one specific issue.
4. It was apparent from the evidence before me that both brothers had strengths and weaknesses and both were, at least in part, charming and engaging in the witness box. However the evidence also showed that the current relationship between them is immensely damaged. In circumstances where some of the evidence in this case does not show either brother in a good light (particularly the text exchange between them on 21^st November 2013 parts of which have been set out below), and where very serious allegations were made against each other in the course of these proceedings, I did suggest that it was in the interests of the brothers to resolve this dispute by settlement and without a judgment. In that respect I note that one of the witnesses, who described himself as a father figure to both of the brothers, said that this case should never have got to trial. However matters have not been resolved, and I must therefore decide those matters which will enable me to say whether the claim made by Mr Sukhi Ghuman against Mr Ricky Ghuman has been proved.
5. The words were alleged to have been spoken on the telephone to Jasbir Khangura ("Mr Jas Khangura") and Sukhbinder Khangura ("Mr Sukhbinder Khangura") who are brothers, when they were in a car in Arizona in late November 2013. Mr Ricky Ghuman denies making the telephone call. The words are said to be actionable per se because they were calculated to disparage the reputation of Mr Sukhi Ghuman in his business. The provisions of the Defamation Act 2013 do not apply to this action.
6. I should record that other claims have been made in the proceedings by Mr Sukhi Ghuman, including a substantial claim for special damages, but these claims are not now being pursued. There are Re-Amended Particulars of Claim which have been marked to show which parts of Mr Sukhi Ghuman's case are no longer being pursued. I should also record that serious allegations that Mr Sukhi Ghuman had made death threats were pleaded by Mr Ricky Ghuman in his defence, but those allegations are no longer pursued. A claim made by CE Security Limited, formerly known as Octavian Continental Limited ("Octavian") has been discontinued, and does not arise for determination by me.
7. Before turning to the issues and evidence on the claim there were a number of procedural applications which are addressed below.

No reporting restrictions

8. The first procedural issue that I had to decide was whether reference should be made to convictions in 2005 on the part of Mr Sukhi Ghuman and Mr Ricky Ghuman which arose out of a disturbance at a family wedding. Mr Sukhi Ghuman was convicted of wounding and affray following a trial before a Judge and a jury, and Mr Ricky Ghuman was convicted of affray following his own plea of guilty on the first day of the trial. There was some evidence (from witnesses on both sides of the case) which suggested that Mr Ricky Ghuman's decision to plead guilty was considered by Mr Sukhi Ghuman to be unhelpful to him, and was alleged to be part of the cause for the bad relations between the brothers. I should record, because it is relevant to the issues raised relating to the Rehabilitation of Offenders Act 1974 ("the 1974 Act") that Mr Ricky Ghuman was fined following his conviction and Mr Sukhi Ghuman was sentenced to a period of 3 months imprisonment for the affray and 9 months imprisonment for the wounding. The evidence does not show whether those sentences were concurrent or consecutive.
9. It is common ground that (whether the sentences imposed on Mr Sukhi Ghuman were concurrent or consecutive) the offences for both Mr Ricky Ghuman and Mr Sukhi Ghuman are now spent under the 1974 Act. However there have been references to the convictions in witness statements in this action. One reference was from Ranmeet Ghuman, known as Ronnie ("Mr Ronnie Ghuman"), cousin to Ricky and Sukhi who described the incident in his witness statement explaining why he felt Mr Sukhi Ghuman had been wronged by his brother Mr Ricky Ghuman. More importantly in the disputed telephone call to Arizona it is said that there was reference to the conviction, see paragraph 50 below.
10. HHJ Moloney QC had in earlier case management hearings referred to the very extensive disputed background and directed that there should be no evidence relating to those matters before October 2013, unless the trial Judge otherwise directed, save to the conviction which might be relevant for the purpose of quantum of damage. This is because it was pleaded that the conviction, following a jury trial, showed that Mr Sukhi Ghuman's evidence must have been disbelieved by a jury which would have affected his reputation.
11. Mr Bennett, on behalf of Mr Sukhi Ghuman, sought to prevent reference to the convictions for affray and wounding. He referred to section 4 of the 1974 Act and noted that the exceptions did not apply to Mr Ricky Ghuman's case, recording that the 1974 Act had not featured in argument before HHJ Moloney QC. It is common ground that, given the wording of HHJ Moloney QC's order, I have jurisdiction to determine what order ought to be made.
12. In oral argument for the reporting restriction order there was discussion about the effect of section 7(3) of the 1974 Act and the decision of the Court of Appeal in Thomas v Commissioner of Police of the Metropolis [1997] QB 813. Section 7(3) of the 1974 Act provides: "If at any stage in any proceedings before a judicial authority … the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person's spent convictions or to circumstances ancillary thereto, that authority may admit … and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions."
13. It became common ground that in circumstances where the convictions were referred to in the disputed telephone conversation that "justice cannot be done" without permitting reference to the spent convictions. This is because it was part of what is alleged to have been said by Mr Ricky Ghuman.
14. Mr Bennett then submitted that although the convictions were admissible pursuant to the 1974 Act, I should make a reporting restriction order to prevent reference to the spent convictions. No notice was given of the application to the press, but that issue could have been addressed if I was otherwise minded to make an order by inviting submissions from the press before coming to a concluded view.
15. It is established that the combined effect of section 6 of the Human Rights Act 1998 and section 37 of the Senior Courts Act 1981 is that the Court may, in appropriate cases, make orders restricting reporting and even for anonymity, see In re Guardian News and Media Ltd and others [2010] UKSC 1; [2010] 2 AC 697. However it is also established that the Court would not, except in the most compelling circumstances, make further exceptions to the general principles of open justice, see In Re S (A Child)(Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593 at paragraph 20. In cases where both article 8 of the European Convention on Human Rights ("ECHR") (privacy rights) and article 10 ECHR (freedom of expression rights) are engaged it is necessary to undertake the ultimate balancing test, see In Re S at paragraph 17. This test shows that neither article 8 nor article 10 has precedence over the other, there is a need for an intense focus on the comparative importance of the specific rights, the justifications for interfering with the rights must be considered, and proportionality must be applied to each right.
16. It is obviously tempting for a Court to do all that it can to remove or lessen the burden of public exposure that comes from open Court proceedings. However it is established that "the hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent to both parties and witnesses" but that "is to be tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect", see Lord Atkinson in Scott v Scott [1913] AC 417. If proceedings are not heard in public it is possible for persons who are involved in the proceedings and who might not be objective about their own disputes, to rewrite the history of what has occurred and disseminate that version of events, when that version of events does not accord with reality and may undermine public confidence in the courts.
17. In my judgment the balance between the respective rights engaged in this case comes firmly down in refusing the application for a reporting restriction. The article 8 rights in this case are relatively weak because the convictions have already been referred to in open Court in interim hearings in this case. I accept that was before Mr Bennett had become involved on behalf of Mr Sukhi Ghuman and issues with the 1974 Act raised and addressed, but the 1974 Act has not added much to the debate because the exception in section 7(3) applies. The situation is as it was before the 1974 Act was raised, namely a spent conviction which is relevant to the issues between the brothers. Further it is common ground that justice cannot be done without reference to the spent convictions. It would be unfortunate to have a part of the judgment redacted when dealing with this case. I therefore refused the application for reporting restrictions.

No strike out

18. It became clear on the first day of trial that Mr Jas Khangura, who was due to give evidence about the critical phone call, would not attend trial. He had been ordered to attend for cross-examination in earlier interim proceedings when issues (more fully addressed in paragraphs 54 to 58 below) about whether he had signed his witness statement had arisen. The explanation for his absence is addressed in the 3^rd witness statement of Mr Magill, which it was common ground that I should consider for the purposes of the application. The explanations advanced were said to be inconsistent with the fact that it had not been made clear at an earlier stage that Mr Jas Khangura would not be attending the trial. Mr Bennett, for Mr Sukhi Ghuman, accepted that, given the terms of the earlier order no reliance could be placed on Mr Jas Khangura's witness statement. However Mr Price QC, for Mr Ricky Ghuman, submitted that in addition the claim should be dismissed. He pointed to what he said was cogent evidence supporting the defence, and submitted that the failure to attend for cross examination made the proceedings abusive.
19. I refused to strike out the proceedings. This was because the proportionate remedy for the failure of Mr Jas Khangura to attend trial was to refuse Mr Sukhi Ghuman permission to rely on his evidence, and it was common ground that this should be done. This was proportionate because it meant that Mr Sukhi Ghuman derived no advantage from the failure of Mr Jas Khangura to attend and because it meant that the importance of complying with court orders was underlined. It was not appropriate to embark on a large scale exercise on the first morning of the trial to determine whether Mr Ricky Ghuman had cogent evidence for his defence in order to consider whether to strike out proceedings, because whether the defence was cogent was an issue for the trial.

The admission of evidence relating to edits of Mr Sukhi Ghuman's Facebook messages from 8^th and 13^th December 2013

20. On the evening before trial (on Sunday 12^th June 2016) evidence of Facebook postings purportedly made on Mr Sukhi Ghuman's Facebook account on 8^th and 13^th December 2013 were sent by Mr Sukhi Ghuman's solicitors to Mr Ricky Ghuman's solicitors. On the face of it this evidence supported Mr Sukhi Ghuman's evidence that he was not the person who had hacked into an email account and altered emails around the 8^th and 9^th December 2013. This is because the Facebook entries showed that Mr Sukhi Ghuman was about to go or had been in San Diego, and was not in Scottsdale, Arizona, which was the location of the server which the evidence showed was where there had been entry to the relevant hacked email account.
21. However immediate inquiries made by Mr Ricky Ghuman's solicitors when they received the Facebook entries showed that the relevant entries had been edited on 9^th June 2016 at 1449 hours and 1523 hours to add in words giving the impression of a relevant trip to San Diego. It became common ground that I should admit the further evidence de bene esse and review matters at the conclusion of the case, when experts might have been given evidence.
22. During the course of the case it also became common ground that I should admit expert evidence from Dr Laurence Godfrey ("Dr Godfrey") obtained on behalf of Mr Ricky Ghuman. It was decided on behalf of Mr Sukhi Ghuman by his legal representatives and confirmed by Mr Sukhi Ghuman when he represented himself that there would be no cross examination of Dr Godfrey. Mr Sukhi Ghuman in his evidence suggested that he had expert evidence which would be relevant, but no expert evidence was adduced. In closing submissions, after Mr Bennett had ceased to act for him, Mr Sukhi Ghuman referred to the fact that he could obtain expert evidence. When I said that I would be minded to allow an adjournment so that the expert evidence could be obtained (because the point was potentially one of importance, and it had arisen late) Mr Sukhi Ghuman said that he was not seeking an adjournment.

Statements of case

23. It was common ground that I should grant permission for further re-amendments to be made to the Defence and Reply, and I did so and I reserved the costs of those matters.

Issues

24. I am very grateful to both Mr Bennett and Mr Price for their helpful written and oral submissions. It is apparent that the following matters are in issue in relation to the claim: (1) whether Mr Ricky Ghuman said anything to the Khangura brothers in November 2013; (2) whether the words which are proved to have been said bore the natural and ordinary meaning or innuendo meaning pleaded in the Re-Amended Particulars of Claim; (3) whether the words were defamatory of Mr Sukhi Ghuman; (4) whether the words were calculated to disparage Mr Sukhi Ghuman in his business; (5) whether the meaning of words published were true or substantially true, which involves a determination whether Mr Sukhi Ghuman: created false Facebook messages in June 2016; submitted false witness statements bearing forged signatures from the Khangura brothers; or hacked and altered emails and sent them to family members; (6) whether the action is an abuse of process because of the Facebook, false signature or hacked email issues; (7) if the claim succeeds whether an injunction should be granted; and (8) if the claim succeeds, the quantum of any damages.

The evidence

25. I heard evidence on behalf of Mr Sukhi Ghuman from: Mr Sukhi Ghuman, the Claimant in this action. After the conclusion of his evidence a further witness statement was adduced from him dealing with attempts to obtain expert evidence relating to the Facebook edits. The statement was not agreed but it was accepted that I could consider the statement (because both sides wanted to make points arising from it) on the basis that it was not agreed and that the position had already fairly been put to Mr Sukhi Ghuman in cross examination in any event; Mr Sukhbinder Khangura, a businessman from the United States who gave evidence about the phone call said to have been made to him by Mr Ricky Ghuman in which the relevant words were alleged to have been spoken; Simon Ellis ("Mr Ellis"), a security consultant who gave evidence about calls with Mr Ricky Ghuman and Josias, also known as Jot, Engelbrecht ("Mr Engelbrecht") in which he alleged that he had been put under pressure to provide false evidence against Mr Sukhi Ghuman; Cornelius Muyunda ("Mr Muyunda") Group Financial Controller of CE Security Limited which was known as Octavian who gave evidence about calls from Mr Sukhi Ghuman to him and discussions with Mr Sukhi Ghuman, Mr Engelbrecht and him about statements being made by Mr Ricky Ghuman; Selinder Surana (Mr Selinder Surana) who described himself as a father figure for Mr Ricky and Mr Sukhi Ghuman, and who gave evidence about disparaging comments made by Mr Ricky Ghuman about Mr Sukhi Ghuman; Amreet Surana ("Mr Amreet Surana") son of Mr Selinder Surana and a cousin of Mr Ricky and Mr Sukhi Ghuman, who had been given work opportunities by Mr Sukhi Ghuman and who alleged that he had received calls from Mr Ricky Ghuman making disparaging comments about Mr Sukhi Ghuman; Jaswinder Shanker ("Mr Shanker"), a second cousin to Mr Ricky and Mr Sukhi Ghuman who had been given an internship by Mr Sukhi Ghuman and who gave evidence about conversations with Mr Ricky Ghuman in which disparaging remarks were alleged to have been made about Mr Sukhi Ghuman; Ranmeet Ghuman ("Mr Ronnie Ghuman") who is a cousin of Mr Ricky and Mr Sukhi Ghuman and who gave evidence about circumstances surrounding the breakdown of the relationship between Mr Sukhi and Mr Ricky Ghuman.
26. I heard evidence on behalf of Mr Ricky Ghuman from: Mr Ricky Ghuman, the Defendant in this action; Nina Dhami ("Mrs Dhami"), sister of Mr Ricky and Mr Sukhi Ghuman, who gave evidence about circumstances surrounding the breakdown of the relationship between Mr Ricky and Mr Sukhi Ghuman; Sandeep Dhami ("Mr Dhami"), husband of Mrs Dhami who gave evidence about the circumstances surrounding the breakdown of the relationship between Mr Ricky and Mr Sukhi Ghuman and the alleged hacking of his email account which he discovered on the 10^th December 2013; Mr Engelbrecht who gave evidence about alleged wrongdoing on the part of Mr Sukhi Ghuman.
27. There were also witness statements on behalf of Mr Ricky Ghuman which were agreed to be read from: Rajvinder Ghuman ("Mrs Rajvinder Ghuman"), wife of Mr Ricky Ghuman, who gave evidence about circumstances leading to the breakdown of the relationship between Mr Ricky and Mr Sukhi Ghuman; Simerjit Ghuman, ("Mrs Ghuman"), mother of Mr Ricky and Mr Sukhi Ghuman who gave evidence about the circumstances leading to the breakdown of the relationship between Mr Ricky and Mr Sukhi Ghuman, and the difficulties which this litigation had caused her and her family; Julia Varley ("Ms Varley"), a solicitor at David Price Solicitors & Advocates ("DPSA") representing Mr Ricky Ghuman. Ms Varley had managed to obtain information from a relative of Mrs Rajvinder Ghuman which had allowed her to see the edits on Mr Sukhi Ghuman's Facebook page; Stuart McLean ("Mr McLean"), a solicitor at DPSA who had witnessed Ms Varley's actions; and Mr Stuinder Singh Atkar, who had provided Ms Varley with access to Mr Sukhi Ghuman's Facebook page.
28. As noted above there was an expert report from Dr Godfrey, a computer expert who has also lectured in computer data structures and algorithms.

The brothers and the breakdown of their relationship

29. The matters set out below represent my findings on the evidence, unless otherwise indicated. Mr Sukhi Ghuman is younger than Mr Ricky Ghuman, but it is common ground that he has had more financial success than Mr Ricky Ghuman. Mr Sukhi Ghuman considers that Mr Ricky Ghuman is jealous of his success, but Mr Ricky Ghuman considers that Mr Sukhi Ghuman took money from relatives to obtain success (both of these matters appear from the texts). Both brothers spend time attempting to win the support of the extended family and friends and both attempted to do that by denigrating the other. The brothers have had fallings out in the past.
30. The evidence shows that they had reconciled and that this was partly for the sake of their father. There was evidence showing that their father had had a successful career in India before coming to the UK, but had not succeeded in the UK, and that he had become dependent on alcohol. Both of these matters had created issues in the relationship between the Ghumans with other relatives. Indeed the convictions of both Mr Ricky and Mr Sukhi Ghuman for affray, and the conviction of Mr Sukhi Ghuman for wounding, arose out of a fight with relatives after a family event. It was apparent from the evidence that Mr Ricky Ghuman's decision to plead guilty to affray, and not rely on self-defence on the basis that there was an attack from other members of the family, was considered by Mr Sukhi Ghuman to be unhelpful. Mr Sukhi Ghuman said that he was hoping to apply to the Criminal Cases Review Commission ("CCRC") so that he might have his convictions quashed. It was apparent from the evidence that Mr Sukhi Ghuman had become slightly obsessed with setting aside his previous convictions and this featured in his response to Mr Dhami about issues relating to mortgage applications, as set out below.
31. Mr Ricky and Mr Sukhi Ghumans' father had died in 2012 and there was a service at the Temple in 2013 in his memory. By this time Mr Sukhi Ghuman and his family had moved to the United States of America ("US"). They had lived for a period of time near Scottsdale, Arizona, US, but Mr Sukhi Ghuman still visited the UK on a regular basis. At the service Mr Ricky Ghuman formed the view that Mr Sukhi Ghuman had been drinking and told members of the family about that. Mr Sukhi Ghuman said he had not been drinking. It is not necessary for me to make findings of fact about which brother was right. It is apparent from the text exchange between the brothers that both brothers are very offensive to each other and will attempt to do all that they can to undermine the other. I accept evidence that Mr Ricky Ghuman told Mr Selinder Surana that Mr Sukhi Ghuman was drunk at the service, and that this information came to the attention of Mr Sukhi Ghuman later in November 2013. The fact that Mr Ricky Ghuman told Mr Selinder Surana about this showed that Mr Ricky Ghuman was capable of spreading information about his brother which Mr Ricky Ghuman considered would show his brother in a bad light. I should record, out of fairness to Mr Ricky Ghuman, that it was apparent that Mr Ricky Ghuman considered that there was nothing wrong in doing this because he considered Mr Selinder Surana to be family, and believed Mr Sukhi Ghuman to have been drunk.
32. There was a dispute between Mr Sukhi Ghuman and Mr Ricky Ghuman about whether at a dinner on 6^th November 2013 in a restaurant in Leicester Mr Ricky Ghuman had admitted posting unfavourable comments about Mr Sukhi Ghuman under articles related to Mr Sukhi Ghuman's business success. It is not a fact necessary to determine, and I do not do so. In my judgment both brothers were capable of making up a story about the other or falsely denying what had happened if they thought it would convert more people to their cause.
33. On 8^th November 2013 there was a falling out between Mr Sukhi Ghuman and Mrs Dhami's mother in law. It related to whether Mrs Dhami's mother in law considered Mr Sukhi Ghuman worthy of working with a relative of hers. Mr Sukhi Ghuman felt insulted and spoke to Mr Ricky Ghuman about it, and felt that Mr Ricky Ghuman was not supportive of him. That is established by evidence from both sides of the dispute.
34. I also find that Mr Sukhi Ghuman had issues with Mr Dhami about the completion of a mortgage application form which had been sent to a mortgage broker in connection with a house move made by Mr and Mrs Dhami in November 2013. Mr Dhami had said something to Mr Sukhi Ghuman which caused Mr Sukhi Ghuman to believe that Mr Sukhi Ghuman's name had been used on a mortgage application form as a person who owed money to Mr Dhami. It was common ground that Mr Sukhi Ghuman did not owe money to Mr Dhami. The evidence also established that Mr Sukhi Ghuman, who was applying to the CCRC, was particularly sensitive about the possibility that his name had been used to obtain a mortgage with false information. Mrs Dhami was not involved in the making of the application and was not aware of any discussion about the mortgage application on 8^th November 2013. However it is common ground that at about this time Mr Sukhi Ghuman had threatened to sue Mr Dhami in relation to the mortgage application (although no proceedings appear to have been pursued). Mr Dhami said he had obtained two offers of a mortgage with a mortgage broker.
35. Mr Dhami denied that he had discussed the mortgage application with Mr Sukhi Ghuman the night of the falling out between Mr Sukhi Ghuman and Mr Dhami's mother, but said that he had become aware of it by 3^rd December 2013. An email dated 3^rd December 2013, which formed part of emails which it is common ground were hacked and amended, but which in this respect was not amended included this comment from the mortgage broker to Mr Dhami saying "you have nothing to worry about – as there is no mention of any monies lent to Sukhi on the application nor the Asset Liability Statement – I worded it as `monies lent to family' which can be anybody". Mr Dhami said that this did not refer to any statement that he had made to the broker that Mr Sukhi Ghuman had lent him monies, and that the mortgage application form only referred to money lent by family. There were a number of documents produced to me during the trial, including some further documents exhibited to Mr Sukhi Ghuman's statement dated 19^th June 2016, and I accept that the mortgage application form may not have referred to Mr Sukhi Ghuman by name. However the email dated 3^rd December 2013 and the word "it" makes it clear that there was a discussion about "monies lent to Sukhi" with the broker when the form was being filled in. In this respect I accept Mr Sukhi Ghuman's evidence that he had been told by Mr Dhami that he had increased his assets by saying that Mr Sukhi Ghuman owed him money when no monies were owed. I do not accept Mr Dhami's evidence because he could not explain the wording of the email, and his evidence was inconsistent with that email.
36. I should record that Mr Sukhi Ghuman's response to this discovery (namely threatening to bring proceedings against Mr Dhami and to get back their house) only added to the falling out. However both sides (and by this time Mr Dhami was firmly against Mr Sukhi Ghuman, which meant that he was on Mr Ricky Ghuman's side) were acting in a way which was going to inflame problems. This was because Mr Dhami expressed a desire set out in an email dated 5^th December 2013 (which had been hacked and parts of it had been amended, but not in this respect) once he knew that there was nothing damaging in the mortgage application form, to resist threatened proceedings from Mr Sukhi Ghuman for as long as possible and to "think how we increase those costs as high as possible" in the hope that Mr Sukhi Ghuman would have to pay for his unreasonable reaction to Mr Dhami.
37. Mr Sukhi Ghuman returned to the US but by 21^st November 2013 he had found out about Mr Ricky Ghuman's comments to Mr Selinder Surana about his alleged drinking at the memorial service for their father. Mr Sukhi Ghuman was not happy about this and there were conversations between them where both had been drinking and which (as appears from the subsequent texts) were not reasonable conversations. There are disputes about whether one or both had been drinking in the telephone conversation which preceded the exchange of texts on 21^st November 2013, but it is not necessary for me to decide this because whether drunk or not the texts should never have been sent.

The exchange of texts

38. The text exchanges between the brothers occurred on 21^st November 2013. They were offensive and puerile and show both Mr Sukhi Ghuman and Mr Ricky Ghuman in a poor light. I will not set out the full details of the exchange which continues for 8 pages of typing and involved near continuous texting from 1750 hours to 1831 hours. Among other texts Mr Sukhi Ghuman texted his brother saying he was a "f…ing faggot" (the dots did not appear in the original text), "scared s…less" (the dots did not appear in the original text), and that "you don't have two pennies to rub together" and that he had "obviously no balls as I will batter you if I see you fat ugly face". In further texts he made reference to his wealth compared to his brother's lack of wealth, and the fact that 2 of his brother's friends had committed suicide. Among other texts Mr Ricky Ghuman texted his brother saying he was "a pathetic excuse of a man"; "a mouthy twat now f… off" (the dots did not appear in the original text); and told him to carry on texting so that the messages could be forwarded to the relevant people "s… head" (the dots did not appear in the original text). In further texts he suggested that his brother couldn't even sell his company due to previous VAT issues, that his brother rented but did not own his house in the US; that he had taken money from his company and liquidated it; and that the police had files on him.
39. It is apparent from the texts (if you are unfortunate to have had to read the whole exchange) that: both brothers knew exactly how to irritate each other; both brothers were intent on irritating each other; and neither could let go of the exchange. It was also apparent that neither brother had any insight into their own failings in the text exchange. Mr Sukhi Ghuman could only see that Mr Ricky Ghuman had made inaccurate claims to the effect that his company had VAT issues and owed the tax man, and it was apparent that he did not consider his own comments about the suicides of his brother's friends, or attempts to get his brother to fight, to be wrong at all. Mr Ricky Ghuman could only see the threats made against him and did not show any concern that he had made what on the evidence before me appear to be false comments about VAT, or indeed that he had forwarded the texts concerning this allegation on to his sister at 1916 hours on 21^st November 2016 during the text exchange. Mr Ricky Ghuman seemed to consider that it was a sufficient answer to having published inaccurate information about VAT in the text exchange to his sister to state that he was only a salesman and did not know about VAT.

After the exchange of texts

40. It is apparent that both brothers have never recovered from the text exchange. In my judgment Mr Sukhi Ghuman did become obsessed with putting a stop to false claims about VAT and his company being made by Mr Ricky Ghuman. This was particularly so because he was in the course of negotiations for the sale of his company, and there is evidence suggesting that he had meetings with employees of the company in an attempt to prove to Mr Ricky Ghuman that the company had paid his taxes. However in my judgment Mr Sukhi Ghuman was also pleased to have the opportunity to sue his brother in that respect. As Mr Sukhi Ghuman had pointed out in the text exchange, his perception was that Mr Ricky Ghuman was effectively broke, even after any inheritance from his father, and it was a good opportunity to add to his brother's financial difficulties at a time when his brother could not see the potential damage he was causing.
41. For his part in my judgment Mr Ricky Ghuman was very keen to persuade the rest of the family that Mr Sukhi Ghuman was a bully who was doing anything that he could to attack Mr Ricky Ghuman using inappropriate attempts to sue him, and this is part evidenced by the way he had forwarded the text exchange to his sister Mrs Dhami as it was progressing. Mr Ricky Ghuman had decided that Mr Sukhi Ghuman had not paid taxes or VAT (although there was no evidence to that effect), and was keen for others to hear that. In my judgment so far as any dealings involving each other, neither Mr Sukhi Ghuman nor Mr Ricky Ghuman have been capable of seeing sense since the exchange of texts.
42. Some considerable time was spent questioning various witnesses who said that Mr Ricky Ghuman had made disparaging comments about Mr Sukhi Ghuman to them. As none of these publications were relied on in the Re-Amended Particulars of Claim the evidence appears to have been led to show some sort of propensity on the part of Mr Ricky Ghuman to make disparaging remarks about his brother, as supporting the case to the effect that there was a publication to the Khangura brothers. There was no need to adduce this evidence because the fact that Mr Ricky Ghuman forwarded the texts to his sister during the exchange shows that Mr Ricky Ghuman was capable of making damaging remarks about Mr Sukhi Ghuman's financial dealings and publishing them. It is apparent that Mr Ricky Ghuman did not consider publication to family to be wrong, because these were persons to be recruited to his side. However the fact that Mr Ricky Ghuman was capable of publishing false information about Mr Sukhi Ghuman does not prove that he did so in late November to the Khanguras, that will depend on a fair assessment of the evidence relating to that publication. It is also right to note that Mr Sukhi Ghuman relied on different alleged publications in his Particulars of Claim at different times, and did not refer to some publications in his witness statements where a reference might have been expected. However it is not necessary (nor even desirable given the fact that members of the family will no doubt attempt to use any findings for their own battles in the future against each other) to make findings beyond saying that the evidence as a whole shows, and I find, that Mr Ricky Ghuman did make a number of disparaging comments about Mr Sukhi Ghuman to other members of the family, which is evidenced in part by his own email to his sister forwarding the text exchange which contained false allegations about a failure to pay VAT.
43. In the end the deal with one potential purchaser of Mr Sukhi Ghuman's company collapsed. Mr Sukhi Ghuman believed that Mr Ricky Ghuman had spoken to that company and was responsible for that company's request for a tax indemnity of £1 million. However there was no evidence that Mr Ricky Ghuman had spoken to the company, although that did not prevent Mr Sukhi Ghuman making a claim for very substantial special damages at an earlier stage of these proceedings.
44. There was also some evidence about other alleged publications after Mr Ricky Ghuman had agreed an interim undertaking not to publish certain statements. There was evidence about these publications from other witnesses, and there was an inconsistency with the terms of an open offer to settle suggesting that Mr Ricky Ghuman had stopped making defamatory statements. Again it is not necessary to make findings about these alleged publications to resolve this dispute, and I do not do so. It is only necessary for me to say whether the claim made by Mr Sukhi Ghuman against Mr Ricky Ghuman has been proved.
45. I should also record that an allegation was made to the effect that Mr Sukhi Ghuman had arranged for Mr Dhami to be assaulted. Mr Sukhi Ghuman denied this. In the event the parties agreed that this issue need not be determined, and although there was evidence on which the questions could be properly asked there was no prospect of establishing this allegation without admissions by Mr Sukhi Ghuman in evidence or other cogent evidence.
46. There were issues about whether Mr Sukhi Ghuman made threats to send persons round to intimidate others. It is again not necessary to determine this issue, because it is apparent from the texts that Mr Sukhi Ghuman was prepared to threaten to fight with his brother, regardless of whether he intended to go through with the threats.
47. In the event Mr Sukhi Ghuman commenced these proceedings against Mr Ricky Ghuman. There was an application for an injunction on 23^rd December 2013 and on 20^th January 2014 the matter was back in Court. Interim undertakings not to publish certain defamatory statements were given until trial on 24^th February 2014.

The late November 2013 phone call and the issue about signatures on the Khangura statements

48. The first pleaded claim in relation to Mr Jas Khangura was in the Particulars of Claim dated 31^st January 2014. The publication was pleaded to have taken place "in or about October/November 2013" and was limited to allegations that Mr Sukhi Ghuman was "broke", "begging [Mr Ricky Ghuman] for money", a fraud"; and a "conman", as appears from paragraphs 4 and 5 of the Particulars of Claim. In the Amended Particulars of Claim dated 11^th November 2014 the plea in relation to Mr Jas Khangura was deleted and Mr Sukhbinder Khangura was added in, using the same words. In an amended Reply dated January 2015 further details were given about the alleged publication to Mr Sukhbinder Khangura, where it was pleaded at paragraph 7 that there was a telephone call to a car whilst Mr Sukhbinder Khangura was driving. Nothing was said about Mr Jas Khangura.
49. In paragraph 10 of the Re-Amended Particulars of Claim it was pleaded that "in or around late November 2013 [Mr Ricky Ghuman] by telephone made a call to Mr Sukhbinder Khangura … and published the following words … Sukhi is a professional crook; Sukhi is a thief; Sukhi is immoral; Sukhi is a con artist; Sukhi does not pay his taxes; Octavian is committing tax fraud; Octavian is on the verge of the liquidation; Octavian is broke" (underlining added). In paragraph 23 of the Re-Amended Particulars of Claim it was pleaded "in or around November 2013 [Mr Ricky Ghuman] by telephone call to Mr Jas Khangura … published the following words … Sukhi is a professional crook; Sukhi is a thief; Sukhi is immoral; Sukhi is a con artist; Sukhi does not pay his taxes; Octavian is committing tax fraud; Octavian is on the verge of the liquidation; Octavian is broke" (underlining added). The words said to have been spoken were the same in respect of each brother.
50. The evidence given on behalf of Mr Sukhi Ghuman by Mr Sukhbinder Khangura in his witness statement which he confirmed to be true, was that "in or around the latter part of November 2013" he began to receive a series of calls from Mr Ricky Ghuman, and that "during the first call" Mr Ricky Ghuman said that he needed to pass on some vital information about his brother (underlining added). Mr Sukhbinder Khangura "was in the car with" Mr Jas Khangura so he put the phone on to speaker and Mr Ricky Ghuman said that: "Sukhi was not all that he seemed and that he is a scammer, fraudster, con-artist and thief and professional crook … had also been in prison for a short time following a fight … was totally corrupt and immoral and a dangerous man … an evil guy and lives in an evil world … his company Octavian was broke, on the brink of liquidation and collapse … Sukhi had "f…. over previous partners and would do the same for you" … built up large tax debts by not paying and then liquidated several companies … was bankrupt … was committing tax on a very large scale by simply no tax being paid by Octavia … there were real risks in conducting business with Sukhi" (underlining added). The dots after the "f" were not in the original, and it appears that when it was said "was committing tax on a very large scale" there was intended to be "fraud" after "tax" because of the context in which it was said, but this issue was not explored in either examination in chief or cross examination.
51. In his earlier witness statement dated 13^th January 2014 Mr Sukhbinder Khangura had put the matter slightly differently saying "in or around November 2013 (towards the end) I began to receive numerous telephone calls from [Mr Ricky Ghuman] … during the course of these telephone calls, Ricky was advising me that his brother was a professional crook and a con artist, informing that his company was on the verge of liquidation … he went to great lengths to advise me amongst other things that Sukhi was a thief, immoral, a con artist and that Octavian UK were a company that was broke and … Sukhi and Octavian did not pay their taxes, namely that they were committing tax fraud … Ricky continued to press me about a conviction that Sukhi had … during December 2013 I received a further call from Ricky and he appeared to be under the influence of alcohol … Ricky continued to remonstrate that he was trying to help me out in the long run. I confirm that I was in the car with my brother at the time …" (underling added).
52. Mr Ricky Ghuman gave evidence denying that he had published the defamatory words in a telephone call to Mr Sukhbinder and Mr Jas Khangura as they were travelling in a car in Arizona.
53. Mr Sukhbinder Khangura confirmed that there were no notes or other documents, before the making of the witness statements, evidencing that the call had been made by Mr Ricky Ghuman or the contents of the call. Both Mr Sukhbinder Khangura and Mr Sukhi Ghuman gave evidence that Mr Sukhbinder Khangura had been sufficiently alarmed about the content of the calls to contact Mr Sukhi Ghuman and ask for reassurance. Evidence was given that Mr Sukhi Ghuman put together relevant financial documents which were sent in an envelope to Mr Sukhbinder and Mr Jas Khangura which were designed to reassure the Khangura brothers. It was also said that the Khangura brothers made telephone calls to various persons who provided references on Mr Sukhi Ghuman. The envelope and the documents collated for the purposes of reassuring the Khangura brothers were not produced, and it was said that there was no covering letter or other document.
54. Issues arose in relation to the signatures on the witness statements served from Mr Sukhbinder Khangura and Mr Jas Khangura dated 14^th January 2016. The issue of whether the witness statements were signed by Mr Sukhbinder Khangura and Mr Jas Khangura was raised on behalf of Mr Ricky Ghuman. It was identified that the signatures from Mr Sukhbinder Khangura and Mr Jas Khangura differed from their signature as shown on various corporate documents, and Mr Jas Khangura had given his name as "Jaswinder" Khangura (see paragraph 1 of the witness statement) when the evidence showed that his name is "Jasbir" Khangura. The fact that there were differences between the signatures on the statements and the corporate documents was confirmed to be common ground at the interim hearing before HHJ Moloney QC. An explanation was given in correspondence that the signatures on the corporate documents had been created by a signature stamp, which explained the difference from the signatures on the witness statements.
55. In giving evidence Mr Sukhi Ghuman acknowledged that because there were obvious differences between the signatures on the corporate documents themselves that the explanation of a corporate stamp could not work. This was because if a corporate signature stamp had been used the signatures on the corporate documents would have been the same. It was common ground that these differences, which were obvious from looking at the signatures did not involve any impermissible forensic exercise because what was being compared was the differences between the printing of the signatures, and not whether the signatures had been made by the same hand (which would have required forensic expertise).
56. Mr Sukhi Ghuman said he had seen both Mr Jas Khangura and Mr Sukhbinder Khangura sign the statements at the Marriott Oro Valley Hotel boardroom, but that the signature by Mr Jas Khangura was done in a hurry. This was a new explanation given for the first time in evidence in the trial. Mr Sukhi Ghuman could give no reasonable explanation for the fact that in correspondence it had been reported that the reason for the difference in the signatures was because other signatures had been made with a corporate stamp.
57. Mr Sukhbinder Khangura gave evidence that he had signed his witness statement, and that his signature was also on the corporate documents. He said that Mr Jas Khangura had also signed his witness statement, but that the reason for any apparent differences was because Mr Jas Khangura had been ill, he had not signed documents for some two years, and he signed the document in a hurry. Mr Sukhbinder Khangura could give no reasonable explanation for the fact that the first explanation for the apparent difference in signatures was because a corporate signature stamp was being compared with actual signatures. He suggested that there had been a desire to keep news of Mr Jas Khangura's illness quiet, but this would not justify giving a false explanation about corporate stamps.

Findings in relation to the pleaded phone call and signatures

58. I do not accept the evidence given by Mr Sukhi Ghuman and Mr Sukhbinder Khangura that Mr Jas Khangura signed his witness statement. This is because the first explanation given for apparent differences between the signature on his witness statement, and signatures on corporate documents (namely because a signature stamp was used on corporate documents) was obviously wrong. This was because the signatures on the corporate documents were not made by a corporate stamp as proved by the little variations in appearance, and because this was not the explanation given by Mr Sukhi Ghuman and Mr Sukhbinder Khangura. I reject the explanations given by Mr Sukhi Ghuman and Mr Sukhbinder Khangura for the apparent differences between known signatures of Mr Jas Khangura and the signature on his witness statement (namely signing in a rush, and because he had not signed documents for 2 years) because if this was the true explanation it would have been given in correspondence when the matter was raised as an issue. I am not in a position to find why Mr Jas Khangura did not sign his witness statement, but signing a witness statement is an important protection for other parties to litigation from false and unreliable evidence by ensuring that witnesses understand the significance of what they are doing.
59. I should also record that although there were apparent differences between the signature on Mr Sukhbinder Khangura's witness statement, and the signature on the corporate documents, Mr Sukhbinder Khangura gave evidence that he had signed his witness statement, and he confirmed the contents of his witness statement in evidence. It would involve an impermissible forensic exercise on the part of the Court to compare the signatures on the corporate documents and the witness statement and say that Mr Sukhbinder Khangura had not signed the witness statement. Although, for the reasons given above, I do not accept Mr Sukhbinder Khangura's evidence about his brother's signature on his brother's statement, there is no evidence before me to justify a finding that Mr Sukhbinder Khangura did not sign his witness statement, and I accept his evidence that he signed his witness statement. In any event Mr Sukhbinder Khangura gave evidence that the contents of the witness statement were true. I will therefore go on to consider his evidence about the publication on which this action now remains.
60. Part of the attack on the case about publication made on behalf of Mr Ricky Ghuman was a suggestion that Mr Ricky Ghuman did not know Mr Sukhbinder and Mr Jas Khangura well enough to have called them and made these comments. However there were developments in the state of knowledge which Mr Ricky Ghuman accepted in relation to the Khangura brothers in his pleadings. I reject the suggestion that Mr Ricky Ghuman did not know Mr Sukhbinder Khangura well enough to call him, and the suggestion was pursued with less and less enthusiasm by Mr Price in the light of the evidence being given by Mr Sukhi Ghuman and Mr Sukhbinder Khangura about contact between Mr Ricky Ghuman and the Khanguras. Some of this evidence consisted of messages repeating phrases which had been bandied around when they had been meeting up to eat and drink. Mr Price had relied on these exchanges to show that Mr Sukhbinder Khangura could use social media (which they did), but they also undermined Mr Ricky Ghuman's case that he did not know the Khanguras well enough to want to recruit them to his side.
61. It is common ground that a Claimant must prove the actual words spoken in an action for slander, see generally Gatley on Libel and Slander, 12^th Edition at paragraph 32.13. No explanation has been given for the fact that the telephone call is pleaded to have been made "in or around late November 2013" to one Khangura brother and the other call is pleaded to have been made "in or around November 2013" when the witness evidence purports to show that the relevant words were spoken on the same occasion. No explanation has been given for the changes in the way in which the case has been pleaded. No explanation has been given for the different ways in which the claim was put in Mr Sukhbinder Khangura's witness statement dated 13^th January 2014 and the witness statement dated 14^th January 2016. These matters are not a promising starting point for a claim based on spoken words.
62. I accept that Mr Sukhbinder Khangura may have had a general recollection that Mr Ricky Ghuman said unpleasant things, the particulars of which Mr Sukhbinder Khangura cannot now recall, about his brother Mr Sukhi Ghuman on occasions, but I am not satisfied on the evidence that Mr Ricky Ghuman said any particular words or phrases at any time to Mr Sukhbinder or Mr Jas Khangura. This is because there was nothing to show that the telephone call had been memorable and there were no contemporaneous documents to show that the terms of the telephone call had been made in those terms. There is nothing to prove that Mr Sukhi Ghuman was trying to satisfy Mr Sukhbinder and Mr Jas Khangura that any particular allegation was false after any telephone call. Although there are phrases common to both witness statements made by Mr Sukhbinder Khangura, the difference between the telephone call to the car in December 2013 as set out in the witness statement dated 13^th January 2014 and the telephone call to the car in November 2013 set out in the witness statement dated 14^th January 2016, the truth of which he confirmed in evidence, gives me no confidence that Mr Sukhbinder Khangura had an actual or reliable recollection of any words spoken to him by Mr Ricky Ghuman on any particular occasion in November or December 2013. For these reasons I am not satisfied that a telephone call took place in the terms in which it has been pleaded in the Re-Amended Particulars of Claim or set out in Mr Sukhbinder Khangura's evidence.

Words do not bear natural and ordinary or innuendo meanings pleaded in the Re-Amended Particulars of Claim; the words were not defamatory of Mr Sukhi Ghuman; the words were not calculated to disparage Mr Sukhi Ghuman in his business

63. It follows from my finding set out above that I am not satisfied that words do bear natural and ordinary or innuendo meanings pleaded in the Re-Amended Particulars of Claim. I am unable to make a finding about what words were spoken to Mr Sukhbinder Khangura by Mr Ricky Ghuman. In circumstances where I am unable to find what words were said I do not find that the words were defamatory of Mr Sukhi Ghuman or calculated to disparage Mr Sukhi Ghuman in his business. In these circumstances I will dismiss the action.

Not necessary to determine plea of justification

64. In these circumstances it is not necessary to determine the issues of justification, and it would be wrong to do so in circumstances where I have been unable to determine which statements need to be justified. Therefore I have not made findings in relation to the Facebook edits or hacked emails for the purposes of a plea of justification.

Abuse of process

65. In circumstances where I have dismissed the action on the merits it is now not necessary to determine whether the action is an abuse of process, and I do not do so. The fact that very serious wrongdoing by a litigant can lead to an action becoming an abuse of process is a valuable protection for both the processes of the Court and innocent litigants from irremediable unfairness caused by very serious wrongdoing. However it is possible that, taken to extremes, the doctrine can encourage a concentration on matters collateral to the issues raised by the causes of action, which might itself lead to satellite litigation and an increase in costs. I have therefore not determined the factual issues relating to the Facebook edits and hacked emails because there is no need to do so for the purposes of determining this action.

Conclusion

66. For the detailed reasons given above I do not find that there was a telephone call from Mr Ricky Ghuman to Mr Sukhbinder Khangura and Mr Jas Khangura as alleged in the Re-Amended Particulars of Claim or as alleged by Mr Sukhbinder Khangura in evidence. In these circumstances I dismiss this action.