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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 >> Alsaifi v Trinity Mirror Plc & Board of Directors & Anor [2017] EWHC 2873 (QB) (17 November 2017)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2017/2873.html
Cite as: [2017] EWHC 2873 (QB)
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QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| Tariq Alsaifi |
Claimant |
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| - and - |
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| (1) Trinity Mirror plc & Board of Directors (2) Secretary of State for Education |
Defendants |
____________________
John Stables (instructed by Foot Anstey LLP) for the First Defendant
Christina Michalos (instructed by the Government Legal Department) for the Second Defendant
Hearing date: 13 October 2017
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Crown Copyright ©
- This is a libel action brought by Mr Alsaifi concerning the publication of an article in July 2016 in The Chronicle, a local newspaper that circulates principally in Newcastle-upon-Tyne and Gateshead. Mr Alsaifi complains about the publication of an article about him in the print edition of the newspaper and also a similar article that appeared online on the newspaper's website, chroniclelive.co.uk ("the Website").
- The issues that require determination by the Court are applications (1) by the Claimant for a ruling on meaning and summary judgment; (2) by the First Defendant to strike out or summarily to dismiss Mr Alsaifi's claim; and (3) by the Second Defendant to dismiss the claim on the grounds (a) the words complained of are not defamatory of him and/or Mr Alsaifi has no real prospect of satisfying the serious harm requirements of s.1 Defamation Act 2013; and/or (b) the claim was an abuse of process under the principles identified in Jameel –v- Dow Jones and Co Inc [2005] QB 946.
- I need to set out both articles, because the online version was different from and longer than the print version.
- The online version of the article appeared during the evening of 6 July 2016 and was in the following terms (with paragraph numbers added):
- In the print edition the following day, 7 July 2016, the article appeared on page 15 of the newspaper in the following terms (again with paragraph numbers added):
- For reasons that will become clear later in this judgment, I am going to refer to the 6/7 July 2016 articles (together) as "the Second Article".
- Mr Alsaifi commenced proceedings over the Second Article by requesting the issue of a Claim Form on 4 July 2017. The Claim Form was actually issued on and dated 21 July 2017, but it is the date of request that is material for limitation purposes (see CPR Part 7 PD7A §5.1).
- In his Particulars of Claim, Mr Alsaifi complained about the publication of both the online and print versions of the Second Article. He has chosen particular words for complaint, but the whole of the online article is set out in the Particulars of Claim. The meaning that Mr Alsaifi contends the words bear, in their natural and ordinary meaning, is:
- An innuendo meaning is pleaded, but that is not material for present purposes. Mr Alsaifi does not attribute a separate meaning to the print edition of the Second Article. I will need to return to that. Sensibly, neither Defendant has taken any point on that technicality; it is clear from the Particulars of Claim that Mr Alsaifi is complaining of both versions of the Second Article.
- Neither Defendant has served a defence.
- Having set out the nature of the current proceedings, I need to set out some further background as there are several events which are important.
- As appears from the Second Article, Mr Alsaifi was made the subject of a lifetime ban from teaching following a decision made by the National College for Teaching and Leadership ("NCTL").
- Mr Alsaifi has brought three earlier claims in relation to this decision and the reporting of it (and subsequent court proceedings in relation to it). In the order in which they were issued:
- The status or fate of each of these actions can be summarised as follows:
- I can gratefully adopt the background to the Appeal Proceedings given by Warby J in the Blog Judgment (who himself pays tribute to and relies upon Andrews J's Appeal Judgment):
- In the First Article Judgment, Warby J referred to and set out the online version of the article that is now sued on in these proceedings [35] and said this:
- The Second Article was material to the issues under consideration by Warby J in relation to the First Article because, at some point after the Appeal Judgment was handed down, a hyperlink to the Second Article was added to the First Article and so, when determining the meaning of the First Article from that point onwards, the Second Article could be considered as "context" (see [59]).
- Warby J considered the overall effect of the First and Second Articles being read together and said this:
- Finally, before turning to consider the applications before the Court I need to note, as Warby J has done before, that Mr Alsaifi has sued Trinity Mirror plc. There is a dispute as to which company in the Trinity Mirror group is responsible for publishing The Chronicle. Nothing turns on this for present purposes. If the claim continues, and if Trinity Mirror plc is not the correct corporate defendant then the correct company could be substituted by amendment.
- The Claimant issued an Application Notice on 31 July 2017 seeking:
- In the draft order accompanying his Application Notice it is clear that the principal remedies Mr Alsaifi seeks against the First Defendant are limited to an injunction requiring it to remove the Second Article from the Website and prohibiting its republication. As against the Second Defendant, he seeks an injunction to prevent republication and damages of £10,000.
- The First Defendant issued its application notice on 25 August 2017. It was supported by the witness statement of Jennifer Agate, the First Defendant's solicitor.
- As it had done in the First Article Proceedings, the First Defendant seeks the summary disposal and/or striking out of the claim, principally on the same basis as it was successful in the First Article Judgment: that Mr Alsaifi's claim has no real prospect of success because defences of privilege and honest opinion are bound to succeed in relation to the publication of the Second Article. Separately, it is contended that Mr Alsaifi's second action against it is an abuse of process.
- Somewhat belatedly, the Second Defendant issued her Application Notice on 25 September 2017. In it, the Second Defendant seeks orders summarily dismissing or striking out Mr Alsaifi's claim on the grounds (1) that he has no real prospect of showing that the words complained of are defamatory of him and/or that their publication meets the serious harm requirements of s.1 Defamation Act 2013; and/or (2) that his claim is an abuse of process under the Jameel principles.
- In her skeleton argument for the hearing, under the heading "Additional matters that the Court should not need to consider", Ms Michalos also contended that the Second Defendant would have a defence of honest opinion under s.3 Defamation Act 2013. This argument was not pressed at the hearing, but I will deal with it (shortly) below (see paragraphs 95-97 below).
- I shall deal with the meaning application, followed by the Defendants' applications.
- The Meaning Application is similar to an application he made to Warby J and which is also dealt with in the First Article Judgment. In [39] Warby J asked, "What's the point?". That is because since the abolition of the presumption of jury trial in defamation claims in the Defamation Act 2013, the need to delimit the range of meanings that words are capable of bearing is almost completely redundant. These days, there is nothing to stop the Court from determining the actual meaning of the words complained of (which used to be the exclusive province of the jury). It is now commonplace for the Court to determine the meaning, usually early in the proceedings, as a preliminary issue.
- Nevertheless, principally for the same reasons Warby J articulated, I consider that it does serve a useful purpose to determine the Meaning Application. There is an additional factor in play in this case. Here, it is a plank of the Second Defendant's application to contend that the Claimant has no real prospect of establishing that the words complained of the publication for which she is responsible bear any meaning that is defamatory of him. The issue at the heart of that submission traverses the same ground as the Meaning Application.
- Here I can do no better than set out and adopt Warby J's analysis from the First Article Judgment:
- The Claimant has (quite naturally) based his submissions principally on the reasoning of Warby J from the First Article Judgment adjusted for the fact that the underlying articles are different. His written submissions strayed into contentions that he wishes to make about the underlying factual position. That is an understandable way of approaching matters from his perspective, but at the stage of determining meaning the truth/falsity of what has been alleged is irrelevant. Given his position as a litigant in person, I shall adopt the same fair approach adopted by Warby J and "[identify any] defamatory meaning which the words complained of are capable of bearing, even if it [differs] from any that [Mr Alsaifi] himself had identified" [51].
- It is important to address the two versions of the Second Article as they are materially different and are unlikely to bear precisely the same meaning.
- The First Defendant contends that highest defamatory meaning the online version of the Second Article is capable of bearing is:
- For the print version, it is submitted that the highest capable meaning is as set out above but without the words in square brackets. That is because parts of paragraph [16] and the whole of paragraph [17] are omitted from the print version.
- Sensibly, the First Defendant does not contend that the words complained of bear no defamatory meaning of the Claimant.
- The Second Defendant's submissions are bound up, naturally, with the issue of whether Mr Alsaifi has a real prospect of demonstrating that the words complained of are defamatory of him at all. This includes submissions on serious harm (which I will deal with separately when considering the Second Defendant's summary judgment application). For the purposes of the Meaning Application, it is submitted that the words are not defamatory of Mr Alsaifi because the words for which the Second Defendant is responsible (i.e. [16] and [17]) do not refer to Mr Alsaifi. Further, it is submitted that the expression of disappointment in these two paragraphs is "a response to the Court's criticism and the adverse costs order and not actually about the Claimant personally at all". The Second Defendant contends that Mr Alsaifi's meaning – "the Claimant's success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children" – is a forced or strained meaning. In her Skeleton Argument, the Second Defendant submits that "this is a case where the words mean exactly what they say, namely":
- It is submitted that this meaning is not defamatory of Mr Alsaifi. The first sentence of the quotation attributed to the NCTL spokesperson "does not import sufficient reference to the Claimant" and the balance does not refer to Mr Alsaifi at all.
- If the Court were to find that the words did refer to Mr Alsaifi, then the Second Defendant submits that the meaning falls below the Thornton threshold of seriousness and is therefore not defamatory.
- The way that the First Defendant has cast the meaning offends the repetition rule. Phrases like "the Secretary of State had found…" or "the Secretary of State was disappointed that…" signal that clearly. Equally, the Second Defendant's formulation that "the NCTL were disappointed/insists/are confident…" falls foul of the same rule. The repetition rule requires the ascertaining of the objective meaning of the attributed statements, in the context of the Second Article as a whole. The structure of Mr Alsaifi's meaning adopts the correct approach because it rightly focuses on the conduct or attributes that Mr Alsaifi contends the words mean when objectively judged.
- I have come to the clear decision that the words of the online version of the Second Article are at least capable of bearing the meaning pleaded by Mr Alsaifi. In fairness to him, and given the task is to identify and delimit the defamatory meanings the words are capable of bearing, I consider that, with some tweaks, the online version of the Second Article is also capable of bearing the following, arguably higher, defamatory meaning:
- The most substantial change is to the final component. Mr Alsaifi contends that it means: "the Claimant's success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children". I consider that the words complained of are also capable of bearing the meaning: "the Claimant's success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught".
- This meaning emerges, in my view naturally, from the statement that the NCTL was "disappointed" with the decision, which the reader knows from [2] had come about as a result of a "legal technicality". The obvious meaning of this is that it considered that the original decision banning Mr Alsaifi was fully justified. Why was it fully justified? The reader is told immediately: "Nothing is more important than the safety and welfare of children". In other words, the ban on Mr Alsaifi's teaching ban was justified because his conduct demonstrated that he posed a risk to the safety and welfare of the [school] children he taught.
- I have put square brackets around "school" because I can see arguments that both are capable meanings. In favour of "school" being included in the meaning are the following: paragraph [16] refers immediately to concerns over maintaining the highest possible standards or personal and professional conduct from all "teachers and school staff"; the article does not refer to the age of the person that had complained about Mr Alsaifi's conduct; paragraphs [2], [3] and [8] refer to her as a "pupil"; paragraph [6] and [16] refer to "teacher"; "teacher misconduct" is mentioned in [17]; and the headline and paragraph [6] refer to the "classroom". Against inclusion of "school" are the following: the reference to "student" in the headline and paragraph [4], the reference to "lecturer" in the headline and paragraph [2] and "tutor" in paragraph [1] and the institution is identified as a "College" in the headline and paragraphs [1] and [3]. The reference to the pupil being only "part-time" [8] is likely to suggest to most readers that this was not a school (as school children generally do not attend on a part-time basis). The words "teenage student" [4] and "teen" [5] are equivocal. They are consistent with either meaning.
- There is a danger of being over analytical here, but I remind myself that I am focusing on the capacity of the words to bear defamatory meanings; I am not ascertaining the actual meaning. Mindful of the exhortation to have regard to my impression of the article on first reading (see the principle from Charman referred to in paragraph 29 above), I indicated at the hearing that I distinctly remembered the moment at which I had focused on the point. I read Andrews J's decision in the Appeal Judgment after I had read the Second Article. I remember noting that Mr Alsaifi had been teaching at a higher education institution and not a school and that being highly material to the decision that the NCTL had lacked jurisdiction. Up to that point, insofar as it is any guide, I must have been under the impression that Mr Alsaifi had been teaching at a secondary school or equivalent college (otherwise the point would not have struck me as it did). That impression can only have come from reading the Second Article.
- Ultimately, the decision whether this part of the meaning is part of the single meaning may not prove to be particularly significant because the gravity of the defamatory sting is not likely to be materially different whether the word "school" is included or not. I have particularly in mind Andrews J's dismissal of Mr Alsaifi's challenge to the substantive decision of the NCTL to impose a ban and particularly her comments in [42], [48] and [66].
- The print version of the Second Article has seven fewer paragraphs and, critically, omits the substance of paragraphs [16] and [17] of the online version (only the bald expression of disappointment remains in the print version). This does have an impact on the overall meaning of the print version. As I noted above (see paragraph 9 above), Mr Alsaifi does not attribute a separate meaning to the print version in his Particulars of Claim. The full meaning that he has pleaded is not a meaning that the print version is capable of bearing, because of omission of certain key passages. In my view, applying the principles I have set out, the print version is capable of bearing the following meaning:
- I do not consider that the balance of the Claimant's pleaded meaning is a capable meaning because of the absence of paragraph [10] and the substantive comments from the NCTL spokesperson in paragraphs [16] and [17] in the online version. Some readers may have picked up from the quotation from Andrews J's judgment in [7] of the print version – "I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken…" that this was effectively an endorsement and reaffirmation of the NCTL's findings by the Judge, but I think the ordinary reasonable reader would only collect such a meaning as a result of a close analysis of the text or by approaching the article as a lawyer would.
- In determining the meaning of the part of the Second Article for which the Second Defendant is liable, I agree with and adopt the approach by Warby J in the First Article Judgment [64]-[65]. I approach the issue on the basis that it is clear that the Second Defendant's spokesperson quoted in [16]-[17] had issued the statement to the media (including The Chronicle) to be reported. From the context, it is clear that s/he was commenting directly on the Appeal Judgment and would recognise that his/her comment would be likely to appear in the context of a report of the decision. The spokesperson was entitled to assume that such a report would be a fair and accurate one - and the Second Defendant cannot be held responsible for any inaccuracy or unfair "spin" which the rest of the article contained, if that was not known to the spokesperson - but it would not be right to limit consideration to the two paragraphs in question "in blinkers, as if the rest of the article did not exist."
- I reject the Second Defendant's submissions that the words complained of (as against the Second Defendant) do not refer to Mr Alsaifi and are not defamatory of him.
- Mr Alsaifi also contends that the statement attributed to the Second Defendant in the print version of the Second Article is capable of being defamatory of him. However, I reject that. The mere expression of disappointment cannot, in context, be understood as reflecting in him in any defamatory way. The reader is not told (and would be guessing) the reason for the disappointment. I suspect most readers would simply regard this as the sort of disappointment that any losing party in litigation feels. As such, Mr Alsaifi has no real prospect of succeeding in his claim against the Second Defendant in relation to the publication of the print version of the Second Article. There is no other reason why the claim over this publication should to trial. On the contrary, as the claim is bound to fail, the sooner it is disposed of the better for both parties. The Second Defendant is granted summary judgment disposing of the claim over the publication of the print version of the Second Article.
- For the reasons I have given I find that the publications complained of by Mr Alsaifi are capable of bearing these meanings.
- Paragraphs 50(i) to (iii) are rulings as to the capacity of the words complained of to bear meanings that are defamatory of Mr Alsaifi. Determination of the actual meanings the words complained of bore would fall to be resolved, if the claim continues, at a later point together with consideration of serious harm under s.1 Defamation Act 2013.
- In its Application Notice, the First Defendant's applications are put on a variety of bases, but the argument and submissions have properly concentrated on the following two issues:
- Although she bases her application to dismiss or strike out Mr Alsaifi's claim on separate grounds, Ms Michalos on behalf of the Second Defendant also adopts the argument in relation to Henderson –v- Henderson.
- The principle from Henderson –v- Henderson can be summarised that a party is expected to bring forward their entire case in a single action and that it is an abuse of process to raise in later proceedings matters which could and should have been raised in the earlier proceedings.
- The principle was endorsed by the House of Lords in Johnson –v- Gore-Wood & Co [2002] 2 AC 1. In his speech, Lord Bingham explained the rationale and extent of the principle (p.31):
- Lord Millett, however, urged caution as to the limits of the principle (at pp.59-60):
- In the more recent case of Virgin Atlantic –v- Zodiac Seats UK Ltd [2014] AC 160, Lord Sumption observed [24]:
- In Aldi Stores Ltd –v- WSP Group plc [2008] 1 WLR 748 [6], the Court of Appeal approved Clarke LJ's summary of the principles to be derived from Johnson –v- Gore-Wood in Dexter –v- Vlieland-Boddy [2003] EWCA Civ 14 [49]:
- In Dexter, Clarke LJ added the following by way of further clarification:
- Mr Stables for the First Defendant accepts that the burden is on his client to demonstrate that to allow Mr Alsaifi's claim to continue against it would be abusive. It is insufficient that Mr Alsaifi could have brought the claim in the First Action; to be abusive the Court must be satisfied that he should have done.
- Nevertheless, he submits the following:
- In summary, Mr Stables submits that, on a broad merits-based approach, and even allowing for the fact that Mr Alsaifi is acting in person, his conduct is properly to be characterised as abusive. He is seeking twice to vex the First Defendant with a claim that he could and should have brought in the First Action. The First Defendant, he submits, did everything it could to try and encourage the Claimant to bring forward all his claims in the First Action.
- Ms Michalos accepts that the Second Defendant (a) is in a materially different position from the First Defendant in that her client has not previously faced a libel claim brought by Mr Alsaifi; and (b) could only succeed on the point if the Court has upheld the submission in relation to the First Defendant. In other words, if the First Defendant fails to demonstrate that the claim should be struck out under the Henderson principle, then she could not invite the Court to strike out the claim as against the Second Defendant on this basis.
- Nevertheless, she submits that the Court should also strike out Mr Alsaifi's claim against the Second Defendant as well. The starting point for her submissions is that, if the Court decides that bringing the Second Action against the First Defendant is abusive, then it is abusive to bring the claim against the Second Defendant also. Mr Alsaifi also had all the necessary information to bring a claim against her client at the point he brought the First Action. If Mr Alsaifi wanted to bring defamation proceedings in relation to the Second Article, he should have included all of those whom he held responsible for the publication of that article (or any part of it) in the same proceedings. In the sphere of defamation, the policy justification for the rule in Henderson –v- Henderson, she submits, applies with equal force to the situation where a party brings successive actions against different parties over publication of the same article. That would potentially be hugely wasteful of resources, particularly the Court's resources which could, potentially, be required to accommodate two actions that could traverse either the same or substantially the same issues perhaps all the way to trial.
- Ms Michalos fairly accepts that her client is in the position of party C in the example given by Clarke LJ at principle (iii) as further explained in [50]-[53] and so the hurdle she has to surmount to demonstrate that the action against her client is abusive is correspondingly higher. She submits that if she fails to clear that hurdle that the Court should, nevertheless, have regard to the fact that Mr Alsaifi could have brought his claim against the Second Defendant in the First Action when considering whether his action is nevertheless abusive under the Jameel principles.
- Mr Alsaifi submits in answer that he thought, because the two articles were published on different occasions covering different decision and that the Second Defendant in each of the claims was different, that he needed to bring separate proceedings in respect of each.
- I have given very careful consideration to whether the current claim by Mr Alsaifi against the First Defendant is abusive under Henderson –v- Henderson. I have reminded myself that it is for the First Defendant to satisfy me that it is and I have carefully considered the principles that I have set out above. I also have attached some considerable weight to the fact that Mr Alsaifi has been acting in person and that the Court should properly give every reasonable latitude to a person who is representing him/herself and who is likely to be unfamiliar with court procedures and the importance of bringing forward all the claims that s/he has in one set of proceedings. Nevertheless, I have reached the clear conclusion that this second action does offend the principle in Henderson –v- Henderson and is an abuse of process.
- My reasons for this are as follows:
- Mr Alsaifi's claim against the First Defendant will therefore be dismissed as an abuse of process.
- Turning to the Second Defendant, it seems to me that the position is very different. I am not persuaded to the required standard that Mr Alsaifi's claim against the Second Defendant is an abuse of process. My reasons are as follows:
- Put shortly, the First Defendant contends that the Court should grant it summary judgment because Mr Alsaifi's claim has no real prospect of success in light of the privilege and honest opinion defences that would be relied upon.
- Given my decision on Henderson –v- Henderson abuse, a decision on this application is not necessary. Nevertheless, I will rule on it for two reasons: (a) in case I am wrong in relation to the abuse point; and (b) because whether the Second Article is a fair and accurate report of the Appeal Judgment has a bearing on the Second Defendant's summary judgment application (see paragraph 48(iii) above).
- The Second Article is clearly a report of the Appeal Judgment. Under s.14(1) Defamation Act 1996, publication of a fair and accurate report of the judgment, if published "contemporaneously" is absolutely privileged. Alternatively, if the report is not published contemporaneously, s.15(1) and Schedule 1 Paragraph 2 of the same Act provides that a fair and accurate report is protected by qualified privilege (although the section does not protect a publication which is "not of public interest and the publication of which is not for the public benefit" (s.15(3)).
- I can gratefully adopt the summary of the proper approach to determining fairness and accuracy from Warby J's First Article Judgment [74]:
- There are limited authorities on the interpretation of "contemporaneously". In the Blog Judgment, Warby J noted that Gatley identified two authorities that had analysed the requirement [73]. In the Blog Proceedings, the words complained of were published from 6 August 2016. Andrews J's Appeal Judgment was handed down on 24 June 2016. Warby J found that this was not sufficiently contemporaneous for the Blog to be protected by absolute privilege under s.14 [72].
- I have not received any submissions on whether a report on 6 July 2016 (therefore following the judgment by some 12 days) would be sufficiently contemporaneous to attract absolute privilege. I would be inclined to think it is not. In §13.37 of Gatley the authors state:
- I need not resolve the point because, like Warby J, if I find that the report is fair and accurate, I need not decide whether the privilege attaching is qualified or absolute. Mr Alsaifi has not seriously advanced a case that the First Defendant was malicious when it published the Second Article (or not one that I regard as having any realistic prospect of success), so even if the privilege attaching is only qualified, it will be a complete defence to Mr Alsaifi's claim.
- As part of his submissions, Mr Stables has provided the Court with a helpful table showing, paragraph by paragraph in the Second Article (both in the online and print versions), from where in the Appeal Judgment the material reported comes. I have reviewed this carefully, and I am satisfied that paragraphs [1] to [15] are a fair and accurate report of the judgment (and likewise for the corresponding paragraphs in the print version). The judgment is long, and a report of it necessarily has to be selective. Overall, I am satisfied that the report is not unfair or unbalanced.
- I have given specific consideration as to whether the potential ambiguity as to the age of the complainant and whether she was a school child (see paragraphs 42-43) is material. I am satisfied that this does not introduce inaccuracy or unfairness of such a degree that it deprives the report of privilege. Principally, my reason for this is the same as explained in paragraph 44 above and also because, in large measure, the factors which contribute most strongly to this impression come not from the report of the proceedings but from the comment provided by NCTL in [16] and [17].
- As to intermingling, I am satisfied that the reader would clearly understand that paragraphs [16] and [17] were not part of a report, but the comment of NCTL (see [76] First Article Judgment). Their presence does not render the report unfair or inaccurate.
- In light of the decision I have reached on Henderson –v- Henderson, I need not consider whether the publication of paragraphs [16] and [17] of the online version of the Second Article is separately defensible as honest opinion or otherwise represents a claim that is so insubstantial that its further prosecution would be an abuse of process under Jameel.
- Mr Alsaifi has made an application for summary judgment. This is not dealt with in any detail in his skeleton argument or his witness statement. It appears to be an application based on his contention that the Second Article is not a fair and accurate report of the Appeal Judgment and that the First Defendant has no real prospect of establishing this defence.
- My decision on Henderson –v- Henderson means that I need not consider this application, however, given the rulings I have made in relation to the reporting privilege, I would have rejected it.
- The Second Defendant sought the dismissal or striking out of Mr Alsaifi's claim on the basis that he had no real prospect of establishing serious harm to his reputation or the likelihood of it as required by s.1 Defamation Act 2013. In support of that submission, she relied principally on the submission that the publication of the words for which her client was responsible were not defamatory of the Claimant. I have rejected that submission in relation to the online version of the Second Article (see paragraph 48 above).
- The question is then whether Mr Alsaifi has a real prospect of demonstrating that he will be able at trial to demonstrate that the publication of the words complained of for which the Defendant is responsible in the online version of the Second Article "has caused or is likely to cause serious harm to [his] reputation" ("serious harm").
- I must bear in mind that the Court has not yet determined the actual meaning of the words complained of. I have found the highest meaning that I consider that the words are capable of bearing and which is defamatory of Mr Alsaifi (see paragraph 50(iii) above). In determining the Second Defendant's summary judgment application I should assume in Mr Alsaifi's favour that he will succeed at trial in establishing that the meaning I have found is the actual meaning of the words. Put in the language of CPR Part 24, to succeed in the application for summary judgment, the Second Defendant must show that in this meaning, Mr Alsaifi has no real prospect of demonstrating serious harm.
- I accept Ms Michalos' submission that the Court of Appeal in Lachaux –v- Independent Print Limited [2017] EWCA Civ 1334 has left open the ability to grant summary judgment in appropriate cases where the claimant has no real prospect of success of demonstrating serious harm [79], [82(5)].
- Equally, she recognises that where a claimant has advanced a sufficient case on serious reputational harm, by reference to the seriousness of the imputation conveyed by the words used, then ordinarily the case should be left to go to trial [81].
- In my judgment, the meaning I have found is sufficiently serious to raise a case on serious reputational harm. That seems to me to be obvious on its face. Ordinarily, that would dispose of the Second Defendant's application for summary judgment.
- However, the Second Defendant contends that the harm occasioned to Mr Alsaifi's reputation by the Appeal Judgment and the First Article Judgment is so extensive that, in the end, Mr Alsaifi will have no real prospect of demonstrating that he has suffered serious harm to his reputation as a result of the publication of words for which she is responsible in the Second Article. In the alternative, it is submitted that the reputational harm that Mr Alsaifi will be able to establish will be so trivial that his claim should be dismissed under Jameel.
- "Serious harm", under s.1 Defamation Act 2013 is to be determined at the date of publication of the words complained of: Lachaux [67] and [82(2)]. As such, the First Article Judgment, because it post-dates publication of the Second Article, cannot be relevant to any assessment of serious harm.
- In any event, Ms Michalos' submissions appear to fall into the same error identified in the Court of Appeal in Lachaux of failing to distinguish between harm to reputation and the consequences of it (see [27], [32], [59] and [82(2)].
- The proper approach to determining the issue of serious harm has been clearly summarised by the Court of Appeal in Lachaux [83(3)]:
- The seriousness of the reputational harm is to be judged, at the date of publication, by assessing (1) the seriousness of the imputation conveyed by the words used; and (2) the extent of publication ([73]). Matters that are unrelated to these two issues, upon which a defendant wishes to rely, can be relevant (if relevant at all) to the assessment of the consequences of the reputational harm. In some cases, a defendant may be able to demonstrate that, by reference to these other matters, the consequences of the reputational harm (and the issues at stake in the litigation) are so minimal that there is no substantial tort and continued proceedings would be an abuse under the Jameel principles. In Lachaux, Davis LJ said [79]:
- Insofar as the Second Defendant seeks summary judgment against Mr Alsaifi on the issue of serious harm, I reject that application. My reasons are:
- This was raised for the first time in the Second Defendant's skeleton for the hearing, it was not a basis on which the summary judgment was sought in the application notice.
- It is submitted that the words for which the Second Defendant is liable as publisher are "plainly a statement of opinion" and therefore protected by the defence of honest comment under s.3 Defamation Act 2013.
- The question for me, on a summary judgment application is whether the Second Defendant has satisfied me that Mr Alsaifi has no real prospect of overcoming that defence. She has not. My reasons are as follows:
- I turn to consider the alternative basis for dismissing Mr Alsaifi's claim: Jameel abuse of process. At first blush, it might be thought that, if a claimant establishes a defamatory publication that meets the requirement of s.1 there was little room for an argument that it would be Jameel abusive to allow the claim to continue. However, the Court of Appeal judgment in Lachaux has explained why it has a continuing role that, in some cases, may prove to be important (see [79] quoted in paragraph 94 above).
- Jameel established the principle that the Court can dispose of proceedings where so little is objectively at stake that it is satisfied that the subject of the claim does not amount to a "real and substantial tort" and the cost of continued litigation is "out of all proportion" to what can be achieved. "The game [is] not merely not … worth the candle, it [is] not … worth the wick" [69]-[70]. The Court should, however, exercise caution before concluding that the prosecution of a viable cause of action would be an abuse. In Ames –v- Spamhaus Project Ltd [2015] 1 WLR 3409, Warby J said this:
- Ms Michalos submits that Mr Alsaifi's claim should be dismissed, now, as an abuse of process. She says that in light of the Appeal and First Article Judgments, his reputation is so tarnished that the 'game is not worth the candle'.
- I do not agree. Mr Alsaifi's claim has not even got to the stage of a defence being filed. I do not know, at this stage, whether the Second Respondent will defend the proceedings; and even if so, on what basis. I do not know the parameters of the likely litigation or its projected cost. Mr Alsaifi is currently acting in person, so the scale of his costs (when assessed as part of the overall costs of the 'game') will be very small indeed. As Warby J noted, this action like all other actions will be the subject of costs budgeting. I cannot say, at this stage, that it would be impossible to fashion a way of dealing with this case in a manner that is proportionate.
- In any event, the basis of the alleged abuse – that there is nothing left of Mr Alsaifi's reputation worth protecting following the Appeal and First Article Judgments - seems to me to have a very uncertain foundation.
- Insofar as it is contended that Mr Alsaifi will not be able to demonstrate the causation of the reputational harm from the publication complained of because of these two judgments, that seems to me to fail for the following reasons:
- Insofar as it is contended that these two judgments can be relied upon in mitigation of any award of damages and (presumably) to reduce any notional award to vanishing point, that also appears to be far from clear.
- Interesting though they are, I do not need to resolve these issues because it simply would not be right to dismiss Mr Alsaifi's claim as an abuse of process at this stage. The Court will, as always, strive to manage this litigation in a way that is proportionate to the issues at stake. If it were to transpire, later, that there is no proportionate way of adjudicating the claim taking into account what is at stake, that is the time that the Court would consider dismissing it as an abuse. That stage has not been reached.
- At the completion of the hearing, I invited the Defendants to submit any further submissions and authorities they wished that bore on the issue of the role objective meaning of the words played in assessing the fairness and accuracy of a report.
- The parties helpfully submitted further submissions on this point. Ms Michalos also included a section headed "Qualified privilege and s.4 Defamation Act 2013". This sought to argue that the Second Defendant ought to be granted summary judgment on Mr Alsaifi's claim on the additional ground that she has a defence of qualified privilege either at common law or under s.4 Defamation Act 2013.
- This was not an argument that was pursued at the hearing (or raised in the Application Notice) and it would not be right for me to deal with it in this judgment. The issues raised by such an application would require specific and careful consideration and Mr Alsaifi would need to be given an opportunity to respond to any such application.
- The result in relation to the Second Defendant's applications is, therefore:
The Honourable Mr Justice Nicklin:
The articles complained of
Ex-Newcastle College lecturer who made 'sexual' advances on student allowed back in the classroom
[1] The 'cavalier' actions of the Secretary of State for Education have allowed the former Newcastle College tutor to successfully appeal his ban
[2] A lecturer who made 'sexual' advances on a pupil has had a lifetime teaching ban overturned - on a legal technicality.
[3] Tariq Alsaifi was suspended from Newcastle College in 2013 when a number of accusations emerged around his behaviour towards a particular pupil.
[4] Alsaifi, 41, was observed holding and rubbing the hand of a teenage student - who he also invited to lunch and sent several emails to from his personal account.
[5] The actions left the teen 'upset'' and feeling uncomfortable at being in the same room as Alsaifi, who was 38 at the time.
[6] A disciplinary panel concluded earlier this year that, while there was no evidence of 'serious sexual misconduct', the teacher's actions were wholly inappropriate and banned him from the classroom.
[7] However, the decision has now been quashed on appeal.
[8] A High Court Judge ruled that under current legislation the victim could not be classed as a pupil, as she only studied part time.
[9] Therefore the panel had no jurisdiction to review the case or make any decision in the first place.
[10] The Honourable Mrs Justice Andrews DBE accepted the panel's findings in relation to Alsaifi's conduct, but ruled his ban should be nullified.
[11] Justice Andrews said: 'I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the National College for Teaching and Leadership (NCTL) to carry out the investigation and to the power of the Secretary of State to make the order.
[12] 'He only needs to succeed on one ground in order to succeed in his appeal. As the Secretary of State had no power to investigate the matter, the fact that process adopted was conspicuously fair and the fact that if the NCTL had been empowered to refer the matter to the panel, its findings would have been unimpeachable, are of no consequence.
[13] 'The proceedings were a nullity; the panel had no power make any findings about the appellant's conduct, or to recommend a Prohibition Order in this case, and the Secretary of State had no power to make one.'
[14] Justice Andrews reserved particular criticism for the Secretary of State who she said had behaved in a 'cavalier' way.
[15] Justice Andrews said: 'The court's disapprobation of the Secretary of State's cavalier attitude to the rules of civil procedure, particularly in a case where the opposing party is representing himself, needs to be marked in a way that will discourage repetition. I will therefore direct that the Secretary of State shall bear her own costs of the appeal to this Court in any event, irrespective of the outcome of any further appeal'
[16] An NCTL spokesperson said: 'We are disappointed with the High Court's judgment. Nothing is more important than the safety and welfare of children and that is why we insist on the highest possible standards of personal and professional conduct from all teachers and school staff.
[17] 'We are confident that the policy and procedures in place to regulate the teaching profession are robust and ensure the just and efficient handling of all cases of teacher misconduct. Each case referred to a Professional Conduct Panel is considered in line with the legislation and supporting advice and the circumstances surrounding each individual case.'
Lecturer has ban quashed
[1] A lecturer who made 'sexual' advances on a pupil has had a lifetime teaching ban overturned on a legal technicality.
[2] Tariq Alsaifi was suspended from Newcastle College in 2013 when a number of accusations emerged around his behaviour towards a pupil.
[3] Alsaifi, 41, was observed holding and rubbing the hand of a teenage student – who he also invited to lunch and sent several emails to from his personal account.
[4] A disciplinary panel concluded that, while there was no evidence of 'serious sexual misconduct', the teacher's actions were wholly inappropriate and banned him from the classroom.
[5] However, the decision has now been quashed on appeal. A High Court judge ruled that under current legislation the victim could not be classed as a pupil, as she only studied part time.
[6] Therefore the panel had no jurisdiction to review the case or make any decision in the first place.
[7] The Honourable Mrs Justice Andrews DBE said: 'I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the National College for Teaching and Leadership (NCTL) to carry out the investigation and to the power of the Secretary of State to make the order.
[8] 'He only needs to succeed on one ground in order to succeed in his appeal.
[9] 'As the Secretary of State had no power to investigate the matter, the fact that process adopted was conspicuously fair and the fact that if the NCTL had been empowered to refer the matter to the panel, its findings would have been unimpeachable, are of no consequence.'
[10] An NCTL spokesperson said it was disappointed with the High Court's judgment.
The Claim
"… that in the Claimant's capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; he thereby conducted himself in a way that merited his indefinite prohibition from teaching; the Claimant's inappropriate actions towards the teenage girl/pupil made her a victim; the Claimant's success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children."
History and background
Previous litigation
i) Pursuing a statutory right of appeal, he challenged the decision of the NCTL and the imposition of a lifetime ban on his further teaching (CO/1679/2016) ("the Appeal Proceedings").
ii) He brought libel proceedings against Benjamin Amunwa over a blog post published from 5 August 2016 purporting to report the Appeal Proceedings (HQ16D04156) ("the Blog Proceedings");
iii) He brought libel proceedings against the First Defendant and Newcastle College Group and Board of Governors over the publication of an online article that appeared in The Chronicle from 15 March 2016 (HQ17M00903) purporting to report the original decision banning Mr Alsaifi from teaching ("the First Article Proceedings").
i) The Appeal Proceedings were successful. By a judgment dated 24 June 2016, Andrews J granted Mr Alsaifi's appeal and quashed the banning order that had been imposed on Mr Alsaifi ([2016] EWHC 1519 (Admin) ("the Appeal Judgment")).
ii) The Blog proceedings were dismissed by Warby J on 27 June 2017 ([2017] EWHC 1443 (QB) ("the Blog Judgment")) following a successful summary disposal application by Mr Amunwa. The Judge found that Mr Alsaifi had no real prospect of succeeding in his claim because the parts of the publication that provided the defamatory sting complained of by Mr Alsaifi would be protected by privilege as a report of the Appeal Judgment (alternatively, honest opinion).
iii) The claim against the First Defendant in the First Article Proceedings was dismissed by Warby J also on 27 June 2017 ([2017] EWHC 1444 (QB) ("the First Article Judgment")) following a successful summary judgment application by the First Defendant. Again, the Judge found that Mr Alsaifi's claim had no real prospect of success because of the availability of defences of reporting privilege of the Appeal Judgment and honest opinion. The claim against Newcastle College continues, the Judge having found that comments attributed to its spokesperson bore a meaning defamatory of Mr Alsaifi.
[18] Mr Alsaifi commends the Appeal Judgment for its admirable and concise account of the relevant background, saying that 'Her Ladyship made an extraordinary effort to summarise the background to the alleged story in only 38 paragraphs'. I echo those sentiments, and propose to rely extensively on Andrews J's summary for present purposes. But for those purpose I do not need to set it out in full. I can pick out the following:
'4. On 5 August 2013, the appellant was engaged on an hourly paid fixed term contract as a lecturer in accountancy and finance by Newcastle College ('the College') in its School of Health and Enterprise ('SHE'). … In the advertisement for the job for which the appellant successfully applied, the College described itself as 'one of Britain's largest and most successful further education institutions'. ….
5. By all accounts the appellant was a particularly well qualified, lively and popular lecturer in subjects that it was difficult for the College to find suitable candidates to teach. However, on 4 November 2013, an allegation was made of inappropriate behaviour by the appellant, then aged 38, towards one of the 12 learners in his Tuesday class on the Sage Accounting course on the College's level 2 Associate Accountancy Technician ('AAT') programme, to whom I shall refer as Ms A. She was 17 years old at the time, and was attending the class on a part-time basis under an apprenticeship arrangement with her employer.
6. The initial allegation centred on a series of emails which the appellant had sent to Ms A between 15 and 25 October 2013 …
7. Ms Catherine Hassan was the assessor for both Ms A and her best friend Ms B, who was also an apprentice studying in the same class, and a witness before the panel … on 1 November 2013 Ms Hassan had a conversation with Ms B, and it was she who told Ms Hassan about the emails from the appellant to Ms A, their content, and Ms A's concern about them. Ms B also said that the appellant spent a lot of time around Ms A in class…
8. Later that day, Ms Hassan spoke directly to Ms A for about an hour, and Ms A expressed her concerns about the emails and about certain aspects of the appellant's behaviour towards her in class. Ms Hassan notified her superiors. … Ms Jackie Rankin, the operations manager to whom Ms Hassan reported these concerns, then spoke to Ms A herself. Ms A told her that she did not feel comfortable at all being in the class with this tutor. On 4 November, Ms Rankin reported the allegations to Ms Barbara King, the Director of Health and Enterprise at the College…
9. The appellant was suspended from work on the same day, pending the outcome of an internal investigation …
10. The appellant was interviewed on 13 November 2013 by Mr Mark Bolton, then the College's Business Development senior manager, in the presence of the head of HR at the College, Mr Ron Smith.
…
15. On 15 November 2013, Ms A and Ms Hassan were each interviewed by Mr Bolton …
16. On 15 November 2013, Mr Bolton made an investigation report to Ms King. That report and its attachments, including the emails and the contemporaneous notes of the interviews, formed part of the materials that were relied on before the panel in due course…
18. At the internal disciplinary hearing, which was attended by the appellant, Ms King, Mr Smith and Mr Bolton… Mr Bolton presented the outcome of his investigation, and… Ms King asked the appellant whether he knew the learner's real age, and he said he had thought that she was 19. He was asked if he would like to present his case, and he again said that he would not wish to comment …
19. After a short adjournment to consider the matter, Ms King stated that she believed the appellant's actions to be gross misconduct and that she was going to recommend the termination of his employment. That recommendation would be considered by a senior post-holder and that he would have the opportunity to make representations to that post-holder before any final decision was taken. This never happened, because on the following day, 29 November 2013, the appellant tendered his resignation. In the College's letter of acceptance, sent by Mr Smith on 3 December 2013, the appellant was advised that in accordance with its Safeguarding duties, the College would be referring his case to the Disclosure and Barring Service ('DBS').
20. On 28 April 2015 the DBS wrote to the appellant and said it had decided that it was not appropriate to include him in the Children's Barred List or the Adults Barred List. It explained that this meant that he would not be prevented from carrying out regulated activity with vulnerable children or adults, but 'other bodies may place other restrictions upon you and our decision does not overrule these'.
21. Having made that decision, the DBS passed on the College's referral to the NCTL, which received the papers on 11 May 2015. That is the date on which, for the purposes of s.141B of the 2002 Act, the allegations of unacceptable professional conduct were formally referred to the Secretary of State, or rather, to the NCTL acting on her behalf. There is no evidence that the appellant was teaching anywhere, or engaged to teach anywhere, on that date.
…
23. The NCTL wrote to the appellant on 1 June 2015 informing him that it had considered the referral and decided that a formal investigation should be started …
…
32. On 16 December 2015 a letter was sent by the NCTL to the appellant to notify him that his case would be heard by a professional conduct panel on 22 to 25 February 2016. The letter set out the allegations that the panel would hear. They had been amended … Allegation 1 now asserted that whilst employed at the College the appellant failed to maintain professional boundaries towards Ms A in that he:
(a) made comments as to the way she looked;
(b) sent her one or more emails from his personal email address;
(c) sent her one or more emails containing 'kisses';
(d) gave his personal telephone number to her;
(e) sent her several follow up emails in an attempt to encourage a response;
(f) invited her to lunch;
(g) put his arm around the back of her chair;
(h) made inappropriate physical contact with her by touching her hand;
(i) asked Ms B whether a fellow learner, C, was the boyfriend of Ms A.
Allegation 2, which in the event the panel found unproved, was that on one or more occasions the appellant unbuttoned his shirt in a teaching environment to such an extent that he was left in 'an inappropriate state of undress'. Allegation 3 was that his conduct in regard to allegation 1 was sexually motivated.'
[19] These allegations against Mr Alsaifi were examined by the panel at a hearing in February 2016. The panel's findings and recommendation are summarised at paragraph [42] of the Appeal Judgment:
'42. … The panel dismissed allegation 1(g) (the arm round the back of the chair) and allegation 2, (the inappropriately unbuttoned shirt) but, after directing itself appropriately with the assistance of advice from its legal adviser, it found all others proved to the requisite standard (the balance of probabilities). It then carefully considered whether this was an appropriate case for a Prohibition Order, taking into account the positive references relied upon by the appellant, and reached a conclusion that it was.'
[20] A decision maker acting on behalf of the Secretary of State accepted that recommendation, and a Prohibition Order was made.
The Appeal Judgment
[21] Andrews J began her judgment by explaining the nature of the proceedings before her:
'1. This is a statutory appeal against the decision of the authorised decision-maker for the Secretary of State for Education ('the Secretary of State') dated 29 February 2016, to make an indefinite Prohibition Order (with a review period set for three years from 7 March 2016) prohibiting the appellant from teaching in any school, sixth form college, relevant youth accommodation or children's home in England. The Prohibition Order was made on the recommendation of a professional conduct panel ('the panel') of the National College for Teaching and Leadership ('NCTL') … dated 25 February 2016, finding the appellant guilty of unacceptable professional conduct.'
[22] The Judge then summarised the main issues and her conclusions upon them:
'2. The appeal raises important questions concerning the interpretation and effect of s.141A and s.141B of the Education Act 2002 ('the 2002 Act') read in conjunction with the Teachers' Disciplinary (England) Regulations, 2012 SI No.560 ('the Regulations').
3. The key issue for determination is whether the Secretary of State (or the NCTL acting on her behalf) has any power to investigate an allegation of unacceptable professional conduct, or to take any consequential action, including making a Prohibition Order, where the person under investigation was not a person employed or engaged to carry out teaching work at any of the types of institution defined in s.141A either at the time of the alleged unprofessional conduct, or at the time of the referral of the allegation to the NCTL, but serendipitously happened to be so engaged at the time of the hearing before the panel, and at the time when the Prohibition Order was actually made. For reasons that I shall explain, I have reached the conclusion that the Secretary of State had no such power, and consequently the Order made in the present case is a nullity and must be set aside.'
[23] Those conclusions turned on the judge's interpretation of the key provisions of the 2002 Act, and its application to the facts of the case before her, as she made clear in the section of her judgment headed 'Jurisdiction' at paragraph [43]:
'43. Logically, the first issue that arises is whether the NCTL had any power to investigate the matter, refer the matter to a professional conduct panel, and make the recommendation upon which the Secretary of State acted. This turns on the proper interpretation of sections 141A and 141B of the 2002 Act, which only apply to certain types of teacher…'
[24] The Judge then set out the relevant provisions, pointing out the following:
(1) The regime applies to 'a person who is employed or engaged to carry out teaching work' at one or other of certain specified institutions;
(2) 'teaching work' is defined in the statute as various specified activities relating to pupils, including delivering lessons to pupils, and assessing the development, progress and attainment of pupils;
(3) By s 3(1) of the 2002 Act 'a pupil' is defined to mean:
'…. a person for whom education is being provided at a school, other than –
A person who has attained the age of 19 for whom further education is being provided, or
A person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided.'
[25] The Judge explained her conclusion on the jurisdiction issue in paragraph [47]:
'47. Ms A was excluded from the statutory definition of 'pupil' because, despite being only 17, she was undergoing part-time education suitable to the requirements of persons of any age over compulsory school age. On that basis alone, the appellant was not engaged in 'teaching work' for the purposes of the Act or the Regulations when he was lecturing on the AAT course that she attended which was open to adults aged up to 60. In any event, Ms A was not being provided with education at a 'school' as defined in the 2002 Act. Newcastle College does not fall within the ambit of the descriptions of any of the educational institutions referred to in s.141A. It was, as it described itself to be, a further education establishment. Therefore, at the time of the conduct complained of, (and when it came to light) the appellant was not a teacher to whom sections 141B to 141E of the 2002 Act applied.'
[26] Andrews J indicated that she considered this to be an unsatisfactory situation, but not one she could alter by judicial decision:
'48. There may be some different regulator responsible for the conduct of those engaged as lecturers by further education establishments such as Newcastle College, or by Universities; however, at the hearing, neither counsel nor the appellant was able to identify any such body, if indeed it exists. It is possible that such conduct is solely a matter for internal regulation by the individual establishment that engages the teacher. In any event Parliament, in deliberately restricting the categories of educational establishment whose teachers are subject to regulation by the NCTL, plainly did not intend that someone doing the job that the appellant was doing at the relevant time would be subject to regulation by that body, regardless of the age of the people he was teaching, and however desirable such regulation might objectively appear to be. It is not the function of this Court to widen the ambit of the statutory restrictions on the Secretary of State's powers.
…
66. What makes this case particularly troublesome is that the appellant's behaviour, and his failure to observe the appropriate boundaries between himself and a learner in his class (even if, as he says, he believed the learner to be an adult) is undoubtedly conduct of a type that would trigger alarms in the minds of those who were concerned to protect sixth-formers or teenagers that he might be teaching in future. On the other hand, the conduct occurred at a time when the responsibility for regulation of his conduct was not a matter for the Secretary of State and he was not engaged to teach such pupils. Why should his subsequent engagement as a teacher suddenly bring that matter within the remit of s.141A and s.141B? It is plain from the way that the charges against the appellant were framed that the case presenter and the NCTL panel were all proceeding under the misapprehension that he was a 'teacher' within the definition of s.141A at the time of the behaviour complained of and that Ms A was a 'pupil' by reason of her age (which she was not).
…
71. That leaves the vexed question of whether an investigation which the NCTL had no power to carry out, and a referral of professional conduct charges for hearing before a professional conduct panel which had no jurisdiction to hear them at the time, somehow became legitimate by reason of the happenstance that, at the time when the hearing took place, unbeknown to the case presenter and the panel, the appellant did fulfil the criteria in s.141A. There is an obvious attraction in Ms Walker's submission that it would be pointless to require the Secretary of State to initiate the whole process over again once the appellant fulfilled the criteria for referral, … [but]
72. I cannot accept that line of reasoning…'
[27] The references at [66] to the appellant's 'behaviour, and his failure to observe the appropriate boundaries' reflect the conclusions that Andrews J reached on the substantive merits of the case, when considering the other grounds that Mr Alsaifi had pursued by way of appeal. He had complained that the process before the NCTL was procedurally unfair, that the panel had reached conclusions that were not open to them, and that their findings were wholly wrong. Andrews J decided, in case the matter went further, that she should state her conclusions on those grounds. She dismissed them all. I have already cited her record of the panel's conclusions. She went on to say this:-
'42. … As an unrepresented party he was allowed considerable latitude in terms of the questioning. At the hearing of this appeal he very frankly accepted that he was able to ask Ms A all the questions that he wished, albeit that they were put to her by the panel rather than by him directly. The panel … carefully considered whether this was an appropriate case for a Prohibition Order, taking into account the positive references relied upon by the appellant, and reached a conclusion that it was. That conclusion was reasonably open to it given the factual findings it had made, especially in the light of what it described as the appellant's total lack of insight into his behaviour. The appellant challenges the findings as being clearly wrong.
….
PROCEDURAL UNFAIRNESS
78. The appellant complained of the following matters:
i) The late change in the allegations that he had to face;
ii) The decision to treat Ms A as a vulnerable witness and afford her special measures;
iii) The fact that he did not have an opportunity to actively participate in the Case Management Hearing despite telling the NCTL that he wished to do so and giving them a range of dates and times on which he could make himself available for a telephone hearing;
iv) The failure by the NCTL to call the witnesses he wanted to call.
v) The fact that the NCTL's decision to investigate and put the matter before a panel was made on the basis of an incomplete version of Mr Bolton's internal report and the annexures to it.
vi) Being afforded insufficient time to make his final submissions at the end of the hearing.
The appellant did not actively pursue this final complaint at the hearing of the appeal: this is not surprising because, having read the transcripts it is plain that he was perfectly able to put his case about the alleged inconsistencies in Ms A's and Ms B's evidence in order to demonstrate that they were making things up. He also had a fair opportunity to criticise the evidence given by Mr Bolton.
79. I am also satisfied that the appellant suffered no procedural unfairness in any other respect.
…
82. Regardless of how the allegations were particularised, the key question for the panel to determine was why the appellant sent those emails, particularly those on 22, 23 and 25 October. His defence was that he was acting out of pastoral concern and nothing more. His alleged behaviour towards Ms A in the course of the lessons, particularly in the lesson on 22 October 2013, was something that would potentially assist in answering the question, and that was going to depend on an assessment of the credibility of Ms A's and Ms B's account. Much was also going to depend on the panel's assessment of the appellant himself as a witness. … I find that there was no procedural unfairness to the appellant as he alleges on any of the grounds that he has raised.
…
CREDIBILITY OF THE WITNESSES
92. The appellant submitted that it was not open to the panel to find that the evidence of Ms A and Ms B (and, to the extent that he disputed it, that of Mr Bolton) was credible. That is not an easy allegation to make good on appeal, even an appeal by way of rehearing, as this appeal is: especially where the tribunal of first instance has had the advantage of seeing and hearing the witnesses over three days of evidence… A mere disagreement by the appellant with the panel's assessment of credibility will not suffice.
93. The appellant essentially made the same points to this Court as he made to the panel; …
94. …the fact that this panel conscientiously considered the evidence and weighed it carefully is demonstrated by the fact that it rejected two of the allegations against the appellant, one on the basis of its inconsistencies. …
95. I have carefully considered all the points raised by the appellant in his skeleton argument and drawn to my attention in his oral submissions, and read and re-read all the parts of the transcript that he relied on…other matters that might adversely affect the credibility of the witnesses. However, this is not a case in which there is anything obvious to indicate that any of these witnesses must be lying; on the contrary, the two learners readily agreed to points that might be helpful to the defence …
96. My overall impression is that the evidence did not support a picture of two young women making up a story to get a lecturer into trouble, or support the appellant's suggestion that Ms B put Ms A up to making a false complaint against him –…conduct panel. If anything, the inconsistencies in the two young women's evidence support its truthfulness, because someone making up a story would tend to exaggerate and would not be willing to admit that she might be mistaken about something. In any event, the panel was in the best position to judge their credibility.
97. The panel was entitled to prefer Mr Bolton's evidence regarding the accuracy of his notes of the interview with the appellant… 'hypothetical' exchange. In any event, even if the panel had accepted the appellant's version of the 'hypothetical' question Mr Bolton asked him, it is unlikely to have improved his position; his own account of the question and answer he gave to it indicated that he would have been quite comfortable with the idea of the relationship between himself and Ms A developing into a romantic one, and that in itself is indicative of the lack of insight into his behaviour which the panel unsurprisingly found.
MISCELLANEOUS GROUNDS
99. I have also considered the complaints made in the appellant's written grounds of an alleged lack of impartiality and discrimination, although the appellant did not address them in his oral argument at the hearing of the appeal. I am satisfied that there is no merit in any of the complaints made by the appellant in this regard, which are answered comprehensively in paragraphs 68 to 73 of Ms Walker's skeleton argument. '
[28] Andrews J summed up her overall conclusions on the merits of the appeal in paragraph [100] of the Appeal Judgment, in this way:
'For these reasons I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the NCTL to carry out the investigation and to the power of the Secretary of State to make the Order. However, he only needs to succeed on one ground in order to succeed in his appeal … Therefore this appeal is allowed and the Prohibition Order will be set aside.'
[29] The Judge was critical of the way the NCTL had dealt with the matter. She said this of the 'prosecution' before the panel:
'The panel and the case presenter should have been aware of the ambit of the NCTL's jurisdiction but it appears that no-one, not even the panel's legal advisor, was alive to the fact that there was a serious issue about the legitimacy of the proceedings. What the appellant said was enough to have put them on notice of the issue.'
[36] Mr Alsaifi has made written complaint about the Second Article, but he has not begun proceedings in respect of it. I am not directly concerned with that complaint, in the sense that no claim or application in respect of the Second Article is before the Court. The fact and content of the Second Article do however need to be brought into account when considering the issues raised by the Meaning Application and the Summary Judgment Application.
[81] … By 15 July not only was the Second Article on the same website as the First Article, that article had a further paragraph linking to the Second Article. The ordinary reader of the chroniclelive website was provided with an ample, and fair presentation of the overall position.
[82] There was a relatively brief period in which the First Article was online without any reference or link to the [JR] Judgment. One must ask whether Mr Alsaifi might succeed at trial on the basis that the First Article had ceased at that time to be of public concern, or its publication to be of public benefit, by reason of the [Appeal Judgment]. I do not consider that Mr Alsaifi would have any prospect of success on that point if the matter went to trial.
[83] In my judgment the characterisation of the [Appeal Judgment] in the Second Article was, for journalistic purposes, a fair one; it was success "on a technicality". The rule of law requires that technicalities of this kind are recognised as important, and that appropriate orders are made. But the point in the present context is a different one. The Appeal Judgment found for Mr Alsaifi on the jurisdiction issue only. It did not acquit him of the conduct which the panel had found proved, nor did it find or declare that the Prohibition Order was unwarranted as a matter of substance. Rather the contrary. The Judge upheld and endorsed the decisions of the panel on the merits. In substance, therefore, so far from vindicating Mr Alsaifi the judgment of Andrews J tended rather to make the matter worse from his perspective."
Applications before the Court
The Claimant's Applications
i) a ruling pursuant to CPR Part 53 PD §4.1 that the words he complains of in the Second Article are capable of bearing the meaning that he pleaded (see paragraph 8 above) ("the Meaning Application"); and
ii) summary judgment pursuant to CPR Part 24.
The First Defendant's Applications
The Second Defendant's Applications
Ruling on Meaning
Principles as to meaning
[53] I repeat what I said at paragraph [42] of the [Blog] Judgment.
"The principles for determining the actual meaning of words were summarised by Sir Anthony Clarke MR in Jeynes –v- News Magazines Ltd [2008] EWCA Civ 130 at [14], where he identified the following:
"(1) The governing principle is reasonableness (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question."
[54] ... The court should strive to read the words in the way the ordinary reader would have done, which is likely to be once only; and it should have regard to the impression made upon it by the statement complained of: see Charman –v- Orion Publishing Group Ltd [2005] EWHC 2187 (QB) [11] and Armstrong –v- Times Newspapers Ltd [2006] EWHC 1616 (QB) [31], (both Gray J).
[55] Further relevant points of principle were set out in the [Blog] Judgment at paragraphs [44]-[48]
44. … the "repetition rule" needs also to be borne in mind. This is one of the cardinal rules of interpretation in this context, which states that "reporting someone else's libellous statements is just as bad as making the statement directly" and therefore "for the purpose of the law of libel a hearsay statement is the same as a direct statement": Lewis –v- Daily Telegraph [1964] AC 234, 260 (Lord Reid) 284 (Lord Diplock). See Gatley at 11.18 for other formulations of the rule. This can be viewed as an aspect of principle (1) and/or (2), it matters not.
45. These principles are of course relevant to a ruling on capability, but in that context I remind myself the Court is not deciding what meaning a reasonable reader would take from the words; it is deciding what the reader could take them to mean. The approach was set out by Eady J in Gillick –v- Brook Advisory Centres, in a passage described by Lord Phillips M.R. on appeal ([2001] EWCA Civ 1263 [7]) as an "impeccable synthesis" of the authorities:
"The proper role for the judge when adjudicating a question of this kind is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his or her own judgment in the light of the principles laid down in the authorities …. If the judge decides that any pleaded meaning falls outside the permissible range, then it will be his duty to rule accordingly. In deciding whether words are capable of conveying a defamatory meaning, the court should reject those meanings which can only emerge as the produce of some strained or forced or utterly unreasonable interpretation. The purpose of the new rule is to enable the court to fix in advance the ground rules and permissible meanings, which are of cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the claimant's reputation but also for the purpose of evaluating any defences raised, in particular, justification and fair comment."
46. It is helpful in this context to recall two further principles identified by Sir Anthony Clarke MR in Jeynes [14]:
"(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which "can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation". (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense.""
47. This jurisdiction is to be exercised cautiously. It has been described as an exercise in generosity not parsimony, the purpose of which is to "pre-empt perversity" on the part of the jury. Several of the authorities to this effect, which are numerous, are collected in Al Alaoui –v- Elaph Publishing Ltd [2017] EWCA Civ 29 [2017] EMLR 13 at [28]-[30]. See also Gatley on Libel and Slander 12th ed. at 30.7 and the further cases there cited.
48. The common law test for whether words are defamatory was examined and re-stated by Tugendhat J in Thornton –v- Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [2011] 1 WLR 1985. The test is whether the publication substantially affects in an adverse manner the attitude of other people towards the claimant, or has a tendency to do so."
Submissions on meaning
"…that in his capacity as teacher of a teenage girl, the Claimant had been found by the Secretary of State for Education, as his regulator, to have behaved inappropriately towards the girl by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; the Secretary of State had found his conduct to be sexually motivated; he had thereby conducted himself in a way that merited his indefinite prohibition from teaching; the Secretary of State's decision was subsequently struck down by the courts on the technical ground of law that the girl could not be classed as a pupil because she studied only part-time and therefore that the Secretary of State had no power to investigate, find, against or act against the Claimant; the Secretary of State was disappointed at the court's decision [because she believed her decision to have been right and just and because the procedures she adopts are sound in law and practice]."
(1) The NCTL were disappointed with the High Court's judgment.
(2) The NCTL insists on the highest standards of conduct from all teachers and school staff because nothing is more important than the safety of children.
(3) The NCTL are confident that their policy and procedures are robust and ensure just handling of cases of teacher misconduct.
(4) Each case referred to a Professional Conduct Panel is considered in line with legislation and supporting advice and the circumstances surrounding each individual case.
Decision on meaning
Online version of the Second Article
"… that in the Claimant's capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; his conduct was so serious that it merited his indefinite prohibition from teaching; the Claimant's success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught".
Print version of the Second Article
"… that in the Claimant's capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards he by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct was so serious that it merited his indefinite prohibition from teaching, a decision that was subsequently quashed as a result of a legal technicality."
The Second Defendant's statement in the online version of the Second Article
i) The submission that the expression of disappointment was limited to disappointment over the Court's criticism of the conduct of the proceedings and the adverse costs order that had been made against the Second Defendant cannot be maintained. The immediate context, particularly the following sentence, shows that the disappointment was over the substantive decision to quash the banning order. That is how the words would have been interpreted by an ordinary reasonable reader.
ii) I reject the submission that the two paragraphs ([16] and [17]) do not refer to the Claimant. Express reference is made to the judgment of the High Court and, in context, I cannot see how a reader could fail to understand that the statement would therefore be understood to refer to the Claimant. Such a submission could only be maintained if the two paragraphs were read, in isolation, and without reference to any other part of the article. That is the blinkered exercise that I (and before me Warby J) have found to be the wrong approach. The Second Defendant knew that the spokesperson's words were given on the record for inclusion (as the Second Defendant's response to the judgment) in any media articles that were published. I make due allowance for the principle that the Second Defendant was entitled to assume that the balance of the article would be a fair and accurate report of the judgment (and the proceedings), but that only reinforces the position that the comment would clearly be understood to be referring to the Claimant.
iii) The meanings that the Second Defendant contends the words bear may be the literal meaning of the words in paragraphs [16] and [17] but they take no account of the overall context in which the spokesperson would have known they were likely to appear, or their likely impact on an ordinary reasonable reader. Indeed, in the context of the article as a whole, for the reasons I have already set out in paragraph 41 above, these two paragraphs make a powerful contribution to the overall meaning of the article. It must have been pretty obvious to the spokesperson that the comment supplied to the media, when added to a fair and accurate report of the judgment, would be capable of bearing the meaning I have identified in paragraph 39 above. For the reasons explained below, I have found that the balance of the online version of the Second Article is a fair and accurate report (see paragraphs 73-81 below).
Conclusion on Meaning
The online version of the Second Article.
i) This is capable of bearing Mr Alsaifi's pleaded meaning (see paragraph 8 above) but is also capable of bearing the following meaning defamatory of the Claimant:
"… that in the Claimant's capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; his conduct was so serious that it merited his indefinite prohibition from teaching; the Claimant's success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught".
The print version of the Second Article.
ii) This is capable of bearing the following meaning defamatory of the Claimant:
"… that in the Claimant's capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct was so serious that it merited his indefinite prohibition from teaching, a decision that was subsequently quashed as a result of a legal technicality."
The part of the online version of the Second Article for which the Second Defendant is liable
iii) Mr Alsaifi has not attributed a specific meaning to paragraphs [16] and [17], but in their proper context of the online version of the Second Article as a whole these paragraphs are capable of bearing the following meaning defamatory of the Claimant:
"the Claimant's success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught".
iv) In respect of the part of the print version of the Second Article for which the Second Defendant is responsible, it does not bear a meaning that is defamatory of Mr Alsaifi. The Second Defendant is therefore entitled to summary judgment on the claim brought by Mr Alsaifi over the print version of the Second Article.
I deal, below, with the issue whether the online version of the Second Article was a fair and accurate report of the Judgment.
First Defendant's Applications for Summary Judgment and to strike out the claim
i) whether Mr Alsaifi's claim is an abuse of process under the principle in Henderson –v- Henderson (1843) 3 Hare 100 (1843) 67 ER 313; and
ii) whether Mr Alsaifi's claim has any real prospect of success in light of the defences of privilege and honest opinion that are available to the First Defendant.
Henderson –v- Henderson abuse
The Law
"… Henderson –v- Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
"It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression. In Brisbane City Council –v- Attorney General for Queensland [1979] AC 411, 425 Lord Wilberforce, giving the advice of the Judicial Committee of the Privy Council, explained that the true basis of the rule in Henderson –v- Henderson 3 Hare 100 is abuse of process and observed that it "ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation". There is, therefore, only one question to be considered in the present case: whether it was oppressive or otherwise an abuse of the process of the court for Mr Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the company's action. This question must be determined as at the time when Mr Johnson brought the present proceedings and in the light of everything that had then happened. There is, of course, no doubt that Mr Johnson could have brought his action as part of or at the same time as the company's action. But it does not at all follow that he should have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court. As May LJ observed in Manson –v- Vooght [1999] BPIR 376, 387, it may in a particular case be sensible to advance claims separately. In so far as the so-called rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position. The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action.The rule in Henderson –v- Henderson 3 Hare 100 cannot sensibly be extended to the case where the defendants are different. There is then no question of double vexation. It may be reasonable and sensible for a plaintiff to proceed against A first, if that is a relatively simple claim, in order to use the proceeds to finance a more complex claim against B. On the other hand, it would I think normally be regarded as oppressive or an abuse of process for a plaintiff to pursue his claims against a single defendant separately in order to use the proceeds of the first action to finance the second, at least where the issues largely overlap so as to form, in Sir James Wigram V-C's words, at p. 115, "the same subject of litigation".
Particular care, however, needs to be taken where the plaintiff in the second action is not the same as the plaintiff in the first, but his privy. Such situations are many and various, and it would be unwise to lay down any general rule. The principle is, no doubt, capable in theory of applying to a privy; but it is likely in practice to be easier for him to rebut the charge that his proceedings are oppressive or constitute an abuse of process than it would be for the original plaintiff to do so."
"The principle in Henderson –v- Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigations points which could and should have been raised before"
and at [25]:
"It was clearly not the view of Lord Millett in Johnson –v- Gore-Wood that because the principle in Henderson –v- Henderson was concerned with abuse of process it could not also be part of the law of res judicata… Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court's procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive duplicative litigation."
(i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
(ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
(iii) The burden of establishing abuse of process is on B or C or as the case may be.
(iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
(v) The question in every case is whether, applying a broad merits-based approach, A's conduct is in all the circumstances an abuse of process.
(vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.
[50] Proposition (ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.
[51] Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all.
[52] It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out....
[53] It is clear from the speeches of both Lord Bingham and Lord Millett that all depends upon the circumstances of the particular case and that the court should adopt a broad merits-based approach, but it is likely that the most important question in any case will be whether C, D, E or any other new defendant in a later action can persuade the court that the action against him is oppressive. It seems to me to be likely to be a rare case in which he will succeed in doing so."
Submissions
i) everything that is presently relied upon by Mr Alsaifi in this action was available to him, and known by him, in March 2017 when he commenced the First Action – the articles sued on dated back to March 2016 and July 2016;
ii) the two articles are very closely connected in terms of subject matter: they both concern the decision of NCTL (and the subsequent challenge to that decision). He relies on the fact that the Second Article had become part of the essential context of the First Article (see paragraphs 16-18 above);
iii) as recorded by Warby J, Mr Alsaifi had already complained to the First Defendant about the publication of the Second Article before he started the First Action. His decision not to complain about the Second Article in the First Action was not as a result of oversight; it was a conscious choice; and
iv) the First Defendant twice asked Mr Alsaifi in correspondence to make any claim he had in relation to the Second Article in the First Action (see letters from the First Defendant's solicitors dated 2 and 31 May 2017), even agreeing to consent to the amendments that would be necessary for him do to so. Mr Alsaifi did not take up this suggestion or offer.
Decision
i) Mr Alsaifi knew about the Second Article and that he had a complaint against the First Defendant about it at the time that he commenced the First Action. Not only that, he had also complained to the First Defendant about it before commencing the First Action.
ii) The two articles – although separated by the Appeal Judgment – were essentially covering the same topic. Mr Alsaifi's complaint about them – judged by the meanings that he sought to attribute to them – was substantially the same.
iii) Mr Alsaifi had been asked twice by the First Defendant to bring his claim in relation to the Second Article in the First Action. I accept that he was not expressly warned that if he failed to do so, he might lose the ability to bring any claim in relation to it; the solicitors simply reserved the First Defendant's position as to costs if he did so. Nevertheless, it remains the case that Mr Alsaifi had no good reason for not bringing forward his claim in relation to the Second Article in the First Action. Even if he did think that he needed to bring separate claims in relation to the two articles, this does not explain the delay in commencing the Second Action. Had he issued the second claim (and not taken up the invitation of the First Defendant to bring it by way of amendment in the First Action) it could have been dealt with at the same time (whether by formal consolidation of the claims or otherwise).
iv) I bear in mind that the First Action was dismissed at a very early stage, but it was disposed of on its merits (albeit at a summary judgment application). The extent of the 'vexation' of the First Defendant with the second claim is not as great as it would have been had the First Action proceeded further. I do not think that, in this case, that factor counts for much. The reality of the situation is that whatever costs the First Defendant has had to incur in dealing with the First Action they will essentially have been doubled by the bringing of this claim to this point. The claims are being disposed of at roughly the same stage. I cannot say that the likely scale of those costs is so insignificant that those costs are de minimis; on the contrary, they are likely to be significant. It would be wrong in principle for me to approach the issue on the basis that the First Defendant has relatively 'deep-pockets' (when compared to Mr Alsaifi) and so therefore can afford it. (So that I am not misunderstood, I should make clear that my general impression is that local newspapers do not have 'deep-pockets' and many would be seriously impacted by the costs of defending just one libel action, never mind two). There is also the important consideration of the court's resources that are being twice taxed. Warby J's First Article Judgment runs to 94 paragraphs over 37 pages after a hearing that I expect lasted for roughly the same time that the matter took before me. It is clear that Warby J's judgment will have taken – as this judgment has – a considerable amount of time to prepare. The economies of scale, had the two claims been brought together, would likely to have been very significant.
v) Standing back from it, I am quite satisfied that Mr Alsaifi could and should have brought the claim he now brings in relation to the Second Article in the First Action. He has offered no good reason why he did not.
i) The most powerful – perhaps conclusive – point is that the Second Defendant has not been "twice vexed". This is the hall-mark of Henderson –v- Henderson abuse and it is absent from this case. If Mr Alsaifi has a viable claim against the Second Defendant, it would be a harsh exercise of the court's discretion to prevent abuse to deprive him of access to the court to have it determined. This is particularly so given that he is acting in person and could not be expected to know the Henderson –v- Henderson principle. In contrast to the position in his claim against the First Defendant, he received no warnings that he needed to bring his claims in one action. Of course, it would have been better, for the efficient dispatch of the administration of justice (and for Mr Alsaifi himself) had he brought the claim over the Second Article against both the First and Second Defendants in the First Action, but that is not the test. I am very mindful of Lord Millett's cautionary words in this respect.
ii) Mr Alsaifi had not made a complaint to the Second Defendant about the Second Article when he made his complaint to the First Defendant. It was not, obviously, at that stage in his contemplation whereas it plainly was in relation to the First Defendant. I have to be careful to avoid judging Mr Alsaifi's decisions harshly in the light of hindsight. His decisions should be judged at the point he made them.
iii) The strongest point in favour of finding the failure to bring his claim against the Second Defendant in the First Action to be abusive is the particular undesirability in defamation claims of having a multiplicity of actions over the publication of the same article. The concern in that situation is not the fact that any individual defendant is vexed twice, but that it represents an enormous demand on the court's resources that would require a convincing justification as to why the claims could not properly be brought in one set of proceedings. That point would have had more weight had Mr Alsaifi already brought a claim against the First Defendant in relation to the Second Article and for him later to bring a further separate claim against the Second Defendant on the same article. I should be clear that I am not saying that launching consecutive actions against different defendants on the same publication is necessarily abusive (and the short limitation period for defamation may mean that the risk of this is more illusory than real). Clarke LJ's observation that, "there may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others" applies just as much to defamation claims.
iv) Again, stepping back, I ask myself is Mr Alsaifi's conduct in not suing the Second Defendant in the First Action such that I am satisfied that it would be abusive or oppressive to allow the claim to be brought in this action. The answer is, clearly, no.
First Defendant's Summary Judgment Application
Fair and accurate report: the Law
"Fairness for this purpose means fairness in terms of presentation. In order to be fair and accurate for this purpose, an extract or summary need not be verbatim, or indeed accurate in every detail. It can be selective; and a fair, even if very brief, summary of the proceedings will be privileged. Minor inaccuracies and 'tweaking' will not displace privilege. See Cook –v- Alexander [1974] 2 QB 279 (CA), Tsikata –v- Newspaper Publishing [1997] 1 All ER 655, 667b (CA), Ismail –v- News Group Newspapers Limited [2012] EWHC 3056 (QB) [14] (Eady J)."
and [76]
"… privilege may be lost if extraneous material is intermingled with the report, summary, or extract in question, in such a way as to make the whole unfair or inaccurate as an account of the relevant underlying material: Curistan –v- Times Newspapers Ltd [2008] EWCA Civ 432 [2009] QB 231 [28] (Arden LJ)"
"A report has also been held to have been published contemporaneously when published three days after the proceedings even though that was not the next available issue [of the newspaper] (Crossley –v- Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB)). However, if a daily paper delayed its report for 10 or 12 days, it would be difficult to say that the report was "published contemporaneously" with the proceedings."
Claimant's Application for Summary Judgment
Second Defendant's Application for Summary Judgment
Serious Harm
"If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial."
"Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm (quite apart from the question of consequential or special damage) should therefore normally be capable – where the question of serious harm is in issue and is not appropriately to be left to trial – of being relatively speedily assessed at the meaning hearing. If it is, nevertheless, desired by a defendant to put in evidence at an interlocutory stage designed to show that there is no viable claim of serious harm the summary judgment procedure under CPR Part 24 is available if the circumstances so justify. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no-one thought any the less of the claimant by reason of the publication. Whether such evidence is in truth unanswerable and whether such matters are best resolved on a summary judgment application or best left to trial is then for the court to determine. Alternatively, if subsequent events or evidence show that there has ceased to be a "real and substantial tort" then a strike out application, in accordance with the principles of Jameel, may also be available…"
i) The Court has not determined (and has not been asked by the Second Defendant to determine) the actual meaning of the words of the Second Article for which she is responsible. For the purposes of this summary judgment application, I therefore approach my assessment of serious harm on the basis that the capable meaning I have found (paragraph 50(iii) above) will ultimately be found to be the actual meaning. In the language of Part 24, as this is a capable meaning, Mr Alsaifi has a real prospect of establishing at trial that this is the actual meaning.
ii) This meaning is defamatory, as I have ruled, and I am quite satisfied that Mr Alsaifi has a real prospect of demonstrating that it is seriously so.
iii) The Second Defendant has realistically not submitted that extent of publication of the online version of the Second Article is so small that there could be a tenable argument that the circulation of a seriously defamatory imputation would not, in the event, cause serious reputational harm. In mass media cases (where it is unlikely that the readers can be identified), it is almost impossible to advance evidence that publishees did not believe the allegation made against a claimant. Certainly, no such evidence has been put forward in this case. For similar reasons, the Second Defendant cannot realistically contend that the Appeal Judgment would have been so widely known that the publication of the online version of the Second Article thereby lost the ability to cause serious harm to Mr Alsaifi's reputation it otherwise would have had. I am doubtful that such evidence is even admissible (see paragraphs 102-104 below).
iv) In those circumstances, I am satisfied that Mr Alsaifi has a real prospect of being able to satisfy the requirements for s.1 Defamation Act 2013 and his claim should not therefore be summarily dismissed on this ground.
Honest Opinion
i) The Second Defendant has not satisfied me that the court would be bound to find that the words complained of only contain the expression of opinion. The meaning I have found the words are capable of bearing (see paragraph 50(iii)) arguably contains factual elements. The actual meaning has not been determined. Conventionally, if a defendant wishes to seek a ruling as to whether the words complained of are an expression of opinion rather than an allegation of fact, that is done by seeking to have meaning and fact/opinion determined as preliminary issues. It is only in clear cut cases that summary judgment would be granted against a claimant when neither meaning nor fact/opinion has been finally determined.
ii) Even if the words are an expression of opinion, the Second Defendant has to meet the other conditions of the defence under s.3. Material to this consideration is likely to be the further conditions in sub-sections (4) and (5):
(4) The third condition is that an honest person could have held the opinion on the basis of—
(a) any fact which existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the statement complained of.
(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.
iii) Ms Michalos has not indicated whether the Second Defendant's honest opinion defence would rely on subsection 4(a) or 4(b) (or both). If the actual meaning is found to be the meaning that I have found the words to be capable of bearing and that the Court finds that the words complained of are an expression of opinion under subsection (2), then the issues of (a) whether an honest person could have held the opinion on the basis of the facts in the Appeal Judgment; and (b) whether the defendant's spokesperson held the opinion remain live ones. I should not express any view either way, but it suffices to dispose of the summary judgment application that I am not satisfied that Mr Alsaifi has no real prospect of defeating the defence of honest opinion (were it to be advanced in answer to his claim). At this stage, the Court has no evidence even as to what the spokesperson had read before making the comment that s/he did. It may turn out, I do not know, that the honest opinion defence will succeed, but I cannot say now that it is bound to do so (or, cast in the Part 24 test, that it is not fanciful to think that may not).
Jameel Abuse of Process
[33] The Jameel jurisdiction has been exercised quite frequently in libel actions. Recent examples referred to by the parties on this application include Subotic –v- Knezevic [2013] EWHC 3011 (QB) and Karpov –v- Browder [2014] EMLR 8. The jurisdiction is however exceptional; the assessment of whether a real and substantial tort has been committed is not a 'numbers game'; even publication to a single individual can be highly damaging and make a substantial and costly libel action proportionate: Haji-Ioannou –v- Dixon [2009] EWHC 178 (QB) at [30]—[31], Sharp J. A tweet published to 65 people can justify a substantial five-figure award of damages: Cairns –v- Modi [2013] 1 WLR 1015. Similarly, Internet publication to 550 people: Times Newspapers Ltd –v- Flood [2014] EWCA Civ 1574.
[34] The Jameel principles are not solely applicable to claims in libel but are of general application: see Sullivan –v- Bristol Film Studios Ltd 2012] EMLR 27, where a claim for infringement of copyright was dismissed. The Sullivan case also serves as a reminder, however, of why the jurisdiction is exceptional: it is a strong thing for a court to strike out a claim on proportionality grounds if it has at least arguable merit, and the court must be alive to the risk that it might unjustifiably deprive a claimant of access to justice. The claim in the Sullivan case could have been allocated to the Patents County Court had its true value been recognised in time. As Lewison LJ observed, at paras 29 and 32 (with the agreement of Etherton and Ward LJJ):
'29. … The mere fact that a claim is small should not automatically result in a court refusing to hear it at all. If I am entitled to recover a debt of £50 I should, in principle, have access to justice to enable me to recover it if my debtor does not pay. It would be an affront to justice if my claim were simply struck out. The real question, to my mind, is whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated. In my judgment it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process…
32. … When in future a judge is confronted by an application to strike out a claim on the ground that the game is not worth the candle he or she should consider carefully whether there is a means by which the claim can be adjudicated without disproportionate expenditure.'
[35] In the Jameel case [2005] QB 946, para 70 and the Sullivan case [2012] EMLR 27, para 29 two features of defamation claims were identified as making them (in Lewison LJ's words) 'to some extent . . . a special case'. One was the prospect of trial by jury. That is no longer relevant in most cases, now that section 11 of the 2013 Act has amended section 69 of the Senior Courts Act 1981 so that the presumption is that libel actions, like others, will be tried without a jury…
[36] The second feature identified as making defamation claims special is that such they cannot be tried in the County Court. That remains the case, save by consent. The general principles stated in the Sullivan case apply none the less, and CPR Pt 1 imposes a duty on the court to seek to deal with cases justly and at proportionate cost. Since the decisions in the Jameel and Sullivan cases, costs budgeting procedures have been implemented to help the court perform that duty. If a libel claimant has a real prospect of establishing a tort which is real and substantial, the court should be very reluctant to conclude that it is unable to fashion any procedure by which that claim can be adjudicated in a proportionate way, and that the only remaining way of dealing justly with the case is to dismiss it.
i) First, if his claim satisfies s.1 Defamation Act 2013, Mr Alsaifi does not need to prove any further reputational harm.
ii) Second, although I do not have any evidence as to the online readership of The Chronicle, I am confident that the number of people who will have read the two judgments will be substantially fewer than the readership of The Chronicle. I should doubt that the audience for Court judgments extends very far beyond lawyers. Most people receive information about the proceedings and judgments of the Court as a result of media reports like the Second Article.
iii) Finally, and as a matter of principle, reliance upon reputational damage occasioned by other publications is impermissible: Dingle –v- Associated Newspapers Ltd [1964] AC 371. Warby J reaffirmed the application of Dingle in the context of serious harm under s.1 at first instance in Lachaux [2016] QB 402 [74]-[95]. His decision was described as "unquestionably right" by the Court of Appeal ([92]). The only difference between reputational harm caused by the publication of court judgments and the publication of articles in newspapers is that the subject can sue for libel in relation to the latter, but s/he cannot in relation to the former.
i) First, if this is a contention that, as a result of the two judgments, Mr Alsaifi has such a bad reputation that the impact of the publication is de minimis, then such a case would have to meet the requirements for a plea of general bad reputation and I am not convinced that it does.
ii) Ordinarily, the authorities of Scott –v- Sampson (1882) 8 QBD 491; Speidel –v- Plato Films Ltd [1961] AC 1090 prohibits proof of specific acts of misconduct in mitigation of damages. Convictions for serious criminal offences can sometimes be admitted as evidence of general bad reputation (see §33.32 Gatley and Goody –v- Odhams Press [1967] 1 QB 333). Evidentially that is straight-forward because the criminal conviction is conclusive evidence of guilt (s.13(1) Civil Evidence Act 1968).
iii) I am doubtful that court judgments containing findings adverse to a claimant are admissible as general bad reputation. The authority for the proposition appears to be Waters –v- Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967. The Court of Appeal referred to this case in Turner –v- News Group Newspapers Ltd [2006] 1 WLR 3469 [48], but I do not read this paragraph as endorsing the principle. On the contrary, the final sentence of the paragraph rather suggests that Keene LJ doubted the reasoning that court judgments were sufficiently "common knowledge" to provide a foundation for a plea of bad reputation.
A further ground for disposing of Mr Alsaifi's claim?
i) Mr Alsaifi's claim against the Second Defendant based on the publication of the print version of the Second Article is dismissed pursuant to CPR Part 24 because the words are incapable of bearing a meaning that is defamatory of him; and
ii) the balance is dismissed.