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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 July 2018

The Honourable Mr Justice Nicklin :

1. This is the Claimant's appeal against the Order of Master McCloud of 21 December 2017 dismissing his claim and entering judgment for the Second Defendant. I granted permission to appeal on 11 April 2018. Before I turn to the decision appealed, I need to set out some of the history to the claim. As I explain below, judgment has already been entered for the First Defendant on the claim (see [7] below). The proceedings now concern only the Second Defendant.
2. I can gratefully adopt the description of the background and detail of the Claimant's claims from Warby J's judgment of 27 June 2017 ([2017] EWHC 1444 (QB) [3]-[9]). The claim arises from the publication online of an article in the Newcastle Chronicle published by the First Defendant from 15 March 2016 (set out in [25]). Three slightly different versions of the article were published, following some amendments that were made at two points, but the differences in the versions are not material for present purposes. The Second Defendant was sued on the basis that it was also liable for part of the publication, having given a statement to the media part of which appeared in the final three paragraphs of the article. The article was a purported report of a decision of the National College for Teaching and Leadership ("NCTL") given on around 29 February 2016 ("the Decision Notice") as a result of which the Claimant was prohibited from teaching.
3. Subsequently, the Decision Notice of the NCTL and the order prohibiting the Claimant from teaching were quashed by the High Court: [2016] EWHC 1519 (Admin) (Andrews J) on 24 June 2016.
4. When the matter came before Warby J, there were two applications for determination:

i) the First Defendant sought summary judgment on the claim on the basis that the Claimant had no real prospect of rebutting a defence of reporting privilege under the Defamation Act 1996. Insofar as there was any part of the article not covered by privilege, the remainder was protected by the defence of honest opinion or should be dismissed as an abuse of process under Jameel -v- Dow Jones [2005] 1 QB 946 ("the Summary Judgment Application"); and

ii) the Claimant sought a ruling pursuant to CPR Part 53 PD §4.1 that the words complained of in the article were capable of bearing the defamatory meanings he had ascribed to them ([41]-[42]) against the First Defendant and [45]-[46] against the Second Defendant) ("the Meaning Application").

5. The Second Defendant had not issued any application itself, but it was a respondent to the Meaning Application. It filed a skeleton argument and made submissions to the effect that the Meaning Application was pointless. The Second Defendant accepted that the comments of its spokesperson included in the article were defamatory (at common law), but, as there was no application to determine the actual meaning as a preliminary issue, any ruling limited to whether the article was capable of bearing the Claimant's meaning, "will not limit the defences which [the Second Defendant] may advance to the claim."
6. I should note here that it was no part of the Second Defendant's argument before Warby J that meaning had to be assessed in light of the decision in Curistan -v- Times Newspapers Ltd [2009] QB 231 (i.e. for the purposes of determining meaning, the parts of the article protected by privilege could not be treated as words complained of). The argument advanced by the Second Defendant was that it was only responsible for the publication of the last three paragraphs of the article, and the meaning had to be ascertained looking solely at those paragraphs.
7. In relation to the Summary Judgment Application, the Judge granted the application and dismissed the Claimant's claim against the First Defendant. The Judge found (a) that the publication of paragraphs [1]-[13] was protected by privilege as the newspaper's fair and accurate report of the NCTL's decision (minor inaccuracies and 'tweaking' did not displace privilege ([74])); and (b) paragraphs [14] and [16] (insofar as they conveyed any defamatory allegation) were opinion ([85]). In consequence, he found that a claim against Trinity Mirror based only on paragraph [15] of the article was Jameel abusive:

[91] I agree that the Jameel doctrine applies here, and mandates the conclusion that any residual claim must be dismissed. The question is whether it is or could be legitimate and proportionate in all the circumstances to permit Mr Alsaifi to pursue a claim for libel against Trinity Mirror in respect of a single paragraph of the First Article, containing a quotation from Mr Lewin about how quickly Newcastle College had acted to suspend and then dismiss Mr Alsaifi three years earlier. The question must it seems to me be answered on the footing that any reader who drew a defamatory meaning about Mr Alsaifi from that single paragraph would also draw a similar, and equally serious defamatory meaning from the rest of the article, in respect of which Mr Alsaifi cannot complain. I am unable to see a basis on which paragraph [15] could be said to add materially to the overall defamatory sting of the article. Although it was not true that he had been dismissed, that error was corrected later. More importantly, the real sting of words such as these lies not in the allegation of dismissal but rather in the imputation that the claimant behaved in such a way as to justify dismissal. If that imputation was conveyed, it was conveyed in any event by the privileged report contained in the same article. (underlining added)

8. In relation to the Meaning Application relating to the Second Defendant, the Judge concluded:

[62] Newcastle College accepts that the words complained of against it are capable of bearing a meaning which is defamatory of Mr Alsaifi at common law…

[64] I ask myself therefore what natural and ordinary defamatory meanings could be conveyed by the words complained of against Newcastle College. Ms Wilson invites me to approach that question by reference only to the final three paragraphs of the First Article (paragraphs [14] to [16]), submitting that her client is not and cannot be held responsible for any other part of that article. The principle on which she relies is included in this passage from Economou -v- De Freitas [2017] EMLR 4 [17]:

"A media publication will often include some material for which the source bears responsibility and some for which he bears none. … Such additional material is likely to affect the meaning of the publication. The additional material may make things worse, in which case the source cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication. A source or contributor cannot be sued for a defamatory meaning which only arises from part of the media publication to which he has contributed: see Monks -v- Warwick District Council [2009] EWHC 959 (QB) [12]-[14] (Sharp J)."

[65] But I am not sure the position here is quite so straightforward, for three reasons. First, I must approach the issue on the basis that Mr Lewin knew and intended that the words complained of against the College would appear in an article on chroniclelive. He clearly must have had some notion of the context in which his statements would appear. There has been no exploration of that issue at this stage. But paragraph [16] of the First Article indicates that Mr Lewin was aware that the published item would include an account of the decision and findings of the NCTL and the Secretary of State. He was entitled to assume that such an account would be a fair and accurate one; the College cannot be held responsible for any inaccuracy or unfair "spin" which the rest of the article contained, if that was not known to it. But I do not think it would be right to examine the three paragraphs in question in blinkers, as if the rest of the article did not exist. Secondly, there is the point I have made above about the potential mitigating impact of the first blob (paragraph [17]). Thirdly, the submission overlooks paragraph [18] which appears to reflect a deliberate contribution by Newcastle College to the third version of the First Article, and one which must (on the face of things) have been made in the knowledge of its then extant version.

9. Having rejected the Second Defendant's submission that the meaning should be assessed by considering only the last three paragraphs of the article, the Judge ruled (at [65]) that the words complained of against the Second Defendant were capable of bearing the meaning ("the Capable Meaning"):

"[The Claimant] had misconducted himself by inappropriate behaviour towards a 17-year-old pupil in the ways found proved by the NCTL in its Decision Notice; that he had thereby behaved in such a way as to justify his immediate suspension, subsequent dismissal, and ultimate prohibition from teaching; and that this last outcome was a pleasing and satisfactory one." (underlining added)

10. Consequent upon his ruling, the Judge made an order which contained the following:

"(2) The statement complained of in the claim against the Second Defendant is capable of bearing a meaning defamatory of the Claimant and is capable of bearing meanings that he had misconducted himself by inappropriate behaviour towards a 17 year old pupil in the ways found proved by the NCTL in its Decision Notice; that he had thereby behaved in such a way as to justify his immediate suspension, subsequent dismissal, and ultimate prohibition from teaching; and that this last outcome was a pleasing and satisfactory one.

(3) The statements complained of are not capable of bearing any other meanings advanced by the Claimant."

11. No party sought to appeal those orders.
12. No doubt encouraged by the success of the First Defendant's summary judgment application, on 14 August 2017, the Second Defendant issued its own Application Notice seeking to dismiss or strike out the Claimant's claim as having no real prospect of success, alternatively that it would be Jameel abusive to allow it to continue. Reliance was placed on [85]-[87] of Warby J's decision on the Summary Judgment Application in relation to the submission that paragraphs [14] and [16] of the article were protected by a defence of honest opinion. A witness statement from the Second Defendant's solicitor, Russell Ward, explained the basis of the applications.

27. It is [the Second Defendant's] position that the statement of Tony Lewin included in the Article and the scope of the meaning attributed to those words is true and/or honest opinion upon true facts and/or upon the first part of the Article which Mr Justice Warby held was protected by statutory qualified privilege

28. In respect of paragraphs 14 and 16 of the Article, [the Second Defendant] relies upon honest opinion and truth. In respect of paragraph 15, [the Second Defendant's] position it that the statement is substantially true, within section 2 of the Defamation Act 2013.

Mr Ward also asked the Court to rule that "the continuation of the proceedings against [the Second Defendant] will serve no purpose and are (sic) an abuse, by reference to the requirements of Jameel…"

13. The Second Defendant did not seek a determination of the actual meaning of the words (which would have required a trial of the preliminary issue).
14. The Second Defendant's Application was heard by Master McCloud on 21 December 2017. Ms Wilson represented the Second Defendant and Mr Alsaifi appeared in person.
15. In her Skeleton Argument for the hearing, Ms Wilson made the following submissions:

i) the Second Defendant was sued only in respect of paragraphs 14-16 of the article;

ii) the Second Defendant was bound to succeed with the defence of honest opinion under s.3 Defamation Act 2013 in respect of paragraphs [14] and [16] because the three conditions under the section were satisfied:

a) by their nature, paragraphs [14] and [16] were plainly expressions of opinion (and not imputations of fact). Mr Lewin was commenting upon the preceding matters and the phrase "we are pleased" is not capable of being understood as anything other than Mr Lewis expressing a view. It is not a statement amenable to verification – as a factual imputation would be. In respect of the claim against the First Defendant, Warby J had held that both paragraphs were clearly opinion and "the contrary is not arguable" at [85]);

b) the basis of the opinion was indicated in the article. It was an opinion on the NCTL decision, as reported in the body of the article; and

c) in light of Warby J's decision that paragraphs [1]-[13] of the article were privileged, s.3(4)(b) is also clearly satisfied (and there is no need to consider s.3(4)(a) of the 2013 Act). The objectively honest person could clearly express the opinions in those paragraphs in light of the findings of the NCTL.

iii) there was no prospect of the Claimant demonstrating that Mr Lewin did not honestly believe the opinion expressed; and

iv) the claim was in any event an abuse of process within the Jameel principle:

a) paragraphs [1]-[13] of the article, which contained more serious defamatory allegations of fact, had been held to be protected by qualified privilege. In terms of harm to reputation, paragraphs [14]-[16] add nothing material; and

b) if paragraph [15] remained the only paragraph upon which a viable claim could be brought, then such a claim, in the context of the article, did not represent a claim in respect of a real and substantial tort.

v) the Second Defendant would, if necessary, advance a defence of truth under s.2 Defamation Act 2013 to prove the substantial truth of the meaning that the three paragraphs were found to bear. She invited the Court to grant summary judgment on the defence of truth because "there is no reason to suppose that a court would differ from the findings of fact by the NCTL…"

16. The Claimant made several points in answer to the Second Defendant's application. Principally, for present purposes, however, he complained that, as Warby J had found that the words complained of were capable of bearing the Capable Meaning, it could not be said that the defence of honest opinion was bound to succeed; a defence of opinion cannot protect defamatory allegations of fact. He filed evidence disputing that the allegations against him, which were the subject of the NCTL Decision, were true.
17. In respect of his argument in relation to honest opinion, the Claimant relied upon and referred to my decision in Alsaifi -v- Trinity Mirror plc & Another [2017] EWHC 2873 (QB) (Alsaifi -v- Trinity Mirror (No.2)). There, I had dealt with an application for summary judgment in a similar case arising from the publication of a subsequent article in The Chronicle. In that case, the Second Defendant was a spokesman for the Secretary of State who gave a statement that was quoted in the article reporting a later Court decision (see [3] above) which quashed the NCTL's order banning the Claimant from teaching. The analogy was very close. Dealing with the Second Defendant's contention that it was bound to succeed with a defence of honest comment, I said this [98]:

"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) 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…"

18. The Claimant's argument, relying on this case, was described by Ms Wilson as "wholly misconceived – that is a claim in respect of a different article."
19. Dismissing the Claimant's claim and entering judgment for the Second Defendant, the Master held (with the paragraph references in brackets):

i) the Claimant had no real prospect of showing that the defence of honest opinion did not apply (§§5, 12);

ii) the Claimant had no real prospect of demonstrating that Mr Lewin (the spokesperson of the Second Defendant quoted in the article) did not honestly believe the comments attributed to him in the final three paragraphs of the article (§§1-3 and 6); and

iii) that if paragraph [15] or the final three paragraphs were considered in isolation, any defamation claim in relation to them would be an abuse of process within the Jameel principle ("not worth the candle") (§§9-10).

The Master did not refer to or consider the Capable Meaning found by Warby J and she did not dispose of the Claimant's claim on the basis of the Second Defendant's reliance upon the indicated defence of truth.

20. The Claimant sought to appeal that decision. This is a difficult area of defamation law, conceptually, and I can only pay tribute to Mr Alsaifi's efforts to articulate what he thinks is wrong. Granting permission to appeal, I considered that it was arguable that the Master had failed to note that the Capable Meaning included a defamatory allegation of fact (shown underlined in [9] above). As such, any defence of honest opinion was not going to protect the publication of such an allegation. In relation to the dismissal of the claim as Jameel abusive, I noted:

"Insofar as the Master also dismissed the Appellant's claim on the grounds that it was Jameel abusive, it is arguable that the Master has failed to consider and apply the principles from Ames -v- Spamhaus Project Ltd [2015] 1 WLR 3409 [33]-[36] guiding the exercise of this 'exceptional jurisdiction', in particular (from [36]) '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 the claim can be adjudicated in a proportionate way, and that the only remaining way of dealing justly with the case is to dismiss it'. These principles were applied – on similar facts – in Alsaifi -v- Trinity Mirror [101]-[106] and it is arguable that many of the same considerations apply in this case."

21. The Second Defendant filed a Respondent's Notice on 1 May 2018. Its primary position is that the Master's decision should be upheld for the reasons she gave. However, in the alternative, the Second Defendant advanced the following arguments:

2. The Master's decision was correct, having regard to the decision of Warby J ([2017] EWHC 1444 (QB)) that paragraphs 1-13 of the article complained of were a report to which statutory qualified privilege attached.

3. The ruling by Warby J on capable meaning… does not undermine the correctness of the Master's decision. Warby J's decision on capable meanings in that judgment was expressly subject to the first Defendant's summary judgment application (which he then granted), and the Master, rightly accepted the same approach to the Respondent's application.

4. The ruling on capable meaning was given prior to Warby J's consideration of, and decision on, statutory qualified privilege in respect of part of the article. It therefore had not taken into account the effect of applying Curistan -v- Times Newspapers (esp. [22(iv)] to the meaning which the Appellant could maintain in his claim. The capable meaning ruling therefore does not warrant allowing the Appellant's appeal.

Argument on the appeal

22. The Claimant essentially adopts the points made when permission to appeal was granted. He also complains that the Second Defendant should not be able to rely upon the defence of honest opinion or truth because the facts reported about his case are not correct.
23. Ms Wilson's submission on the appeal is succinct. The Master considered Warby J's judgment and, although not bound to follow it, gave due weight to it. She was right, for the same reasons as Warby J had found, that paragraphs [14] and [16] were expressions of opinion and that a defamation claim based only on [15] against the Second Defendant was just as much an abuse of process as the claim against the First Defendant had been found to be.
24. As I have noted (see [12] above), Ms Wilson accepts that, at least arguably, the Capable Meaning contains a defamatory allegation of fact. She contends, however, applying Curistan, Warby J's finding that the publication of paragraphs [1]-[13] of the article was protected by reporting privilege affected the "actionable meaning upon which [the Claimant] could maintain any claim".
25. There is no doubt that this is a new point. It was not argued before Warby J when he was deciding the issue of capable meaning (and if correct, the principle would apply equally to determination of the meanings that words are capable of bearing). Perhaps more importantly, it was not argued before Master McCloud.
26. Relying upon this, Ms Wilson contends that the effect of Curistan in this case is that the meaning of paragraphs [14]-[16] of the article must be ascertained without regard to the privileged parts (paragraphs [1]-[13]).
27. In relation to Jameel abuse, Ms Wilson argues that, as paragraphs [1]-[13] have been held to be protected by qualified privilege, the Claimant "cannot obtain vindication in respect of the serious and specific allegations about him in that part of the article."
28. I asked Mr Alsaifi, at the hearing, to tell me what he hoped to achieve by his claim against the Second Defendant. He identified three things:

i) he hoped that he would be granted an injunction (a) to have paragraphs [14]-[16] removed from the article which continues to be published by the First Defendant; and (b) to prevent repetition of the allegation by the Second Defendant;

ii) he sought damages (now limited to £10,000); and

iii) when applying for jobs in the future, he wanted to be able to confront any reference to the NCTL case (and reporting of it) with a finding that the allegations were not true.

Decision

29. I should start by setting out the final three paragraphs of the article that contain the words complained of against the Second Defendant (using the same paragraph numbers):

[14] Tony Lewin, principal at Newcastle College, said: "Safeguarding our students is our top priority and we take all student complaints seriously.

[15] "In the case of Mr Alsaifi, a part-time lecturer, three years ago, we acted upon the situation the same day, quickly and effectively leading to his immediate suspension and subsequent dismissal.

[16] "We are pleased with the outcome of the hearing."

30. This has been held to bear the Capable Meaning, which contains a defamatory allegation of fact ([9] above).
31. Warby J held that:

i) [14] and [16] were opinion (see [85]). [16] was a statement of the Second Defendant's pleasure at the NCTL result and [14] a comment on the Second Defendant's policy. In context, reference to "student complaints" in [14] would be understood to relate to the complaint(s) made against the Claimant.

ii) [15] was a statement of fact: three years ago, the Claimant had been swiftly suspended and was subsequently dismissed because of the "situation". In context, readers would understand the "situation" that had been effectively dealt with by the College to be what is described in [1]-[13]. If [16] adds anything to meaning, it tends to confirm in the readers' minds that the College believed that its decision to suspend and dismiss had proved to be the right one.

From this, it is clear to me how Warby J arrived at the Capable Meaning.

32. It might be argued that, having not appealed the Capable Meaning, it is too late now to raise a point on Curistan. Nevertheless, in my judgment and on the facts of this case, Curistan makes no difference.

i) The effect of Curistan is not to remove privileged paragraphs from a publication. Whilst they cannot be relied upon as words complained of, for the purposes of meaning, they remain as context for the non-privileged parts of the publication: Curistan [22(v)(1)] per Arden LJ; [84] per Laws LJ; and [102] per Lord Phillips MR.

ii) When the Capable Meaning of paragraphs [14]-[16] was determined, paragraphs [1]-[13] were already treated by Warby J only as context. They were never words complained of by the Claimant; indeed, he could not maintain a claim holding the Second Defendant responsible for their publication. On the facts of this case, Curistan could only have had potential relevance to the determination of meaning of the whole article for the publication of which the First Defendant was responsible (not that that was argued).

33. The finding that paragraphs [14] and [16] were an expression of an opinion was only of limited assistance to the Second Defendant. The factual element of the Capable Meaning arises, substantially if not entirely, from paragraph [15]. The Master was right to decide: (a) that [14] and [16] were likely to be protected by a defence of honest opinion; and (b) that the Claimant has no real prospect of showing that Mr Lewin did not believe the opinion he expressed. However, when dividing up a publication like this, it was necessary to bear well in mind the Capable Meaning. That showed that a defamatory allegation of fact was capable of arising from the publication, on which the defence of honest opinion could have no bearing. The fact that this arose from a single paragraph ([15]) did not diminish that paragraph's capacity to cause reputational harm. The short point is that the honest opinion defence was not a complete answer to the Claimant's claim.
34. It is right that, to the extent that the Second Defendant was left to face a claim based on a single paragraph, its position was the same as that of the First Defendant. Principally for that reason, Ms Wilson submits that it should suffer the same fate as the claim made against the First Defendant.
35. I therefore turn to consider whether the Master was correct to dismiss a claim based on this paragraph as Jameel abusive.

Jameel abuse: the law

36. The Court has jurisdiction to stay or strike out a claim where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures: in other words, "the game is not worth the candle": Jameel [69]-[70] per Lord Phillips MR and Schellenberg -v- BBC [2000] EMLR 296, 319 per Eady J. The jurisdiction is useful where a claim "is obviously pointless or wasteful": Vidal-Hall -v- Google Inc [2016] QB 1003 [136] per Lord Dyson MR.
37. Nevertheless, striking out is a draconian power and it should only be used in exceptional cases: Stelios Haji-Ioannou -v- Dixon [2009] EWHC 178 (QB) [30] per Sharp J.
38. It is not appropriate to carry out a detailed assessment of the merits of the claim. Unless obvious that it has very little prospect of success, the claim should be taken at face value: Ansari -v- Knowles [2014] EWCA Civ 1448 [17] per Moore-Bick LJ and [27] per Vos LJ.
39. The Court should only conclude that continued litigation of the claim would be disproportionate to what could legitimately be achieved where it is impossible "to fashion any procedure by which that claim can be adjudicated in a proportionate way": Ames –v- Spamhaus Project Ltd [2015] 1 WLR 3409 [33]-[36] per Warby J citing Sullivan –v- Bristol Film Studios Ltd [2012] EMLR 27 [29]-[32] per Lewison LJ.
40. Although not at the forefront of Ms Wilson's submissions, some caution needs to be adopted where part of the the alleged abuse is said to arise from the contention that the claimant's reputation is already so damaged that nothing of value could be salvaged from the proceedings (see discussion in Alsaifi -v- Trinity Mirror (No.2) [101]-[105]).
41. In light of the Claimant's stated objectives ([28] above), it is important to note that the vindication that a claimant hopes to obtain from defamation proceedings relates not only to the past damage to reputation in the eyes of those who read the words complained of, but can also legitimately include protection against the risk of future reputational harm: Sobrihno -v- Impresa Publishing SA [2016] EMLR 12 [54] per Dingemans J). In many cases, where there is continued publication by a defendant, one aspect of the prevention of future harm may be provided by a final injunction. But the principle is wider than that, as Tugendhat J explained in McLaughlin -v- London Borough of Lambeth [2011] EMLR 8 [112]:

"It is true that the number of addressees of the emails complained is small. But they are all persons who are or have been concerned with education and with the School. The words complained of are in electronic form. They may be stored indefinitely, and easily searched and republished, both generally to those concerned with education, and in particular to others in the Department for Education or in the first defendant. The damage so far suffered by the claimants may be small... But the main point of defamation proceedings is vindication. Vindication includes preventing, or reducing the risk of, future publications of the words complained of. The fact that the damage suffered so far may be small (if it is), is no indication of the extent of the damage which is prevented from occurring in the future, when a claimant in a libel action obtains a public retraction or a judgment in his favour from the court." (emphasis added)

42. A well-known feature of harm to reputation is the propensity for defamatory statements "to percolate through underground channels and contaminate hidden springs": Slipper -v- BBC [1991] 1 QB 283, 300 per Bingham LJ. As a result, a claimant may encounter a defamatory allegation being raised with him/her by someone many years after the libel action against the original publisher was concluded. Where libel proceedings have been pursued, such a person is equipped, either by means of an apology or retraction from the original publisher or a judgment in his or her favour, to refute the defamatory statement whenever and wherever it resurfaces in the future.

Jameel abuse: conclusion

43. In respectful disagreement with the Master, I am satisfied that the Claimant's claim should not be dismissed as an abuse of process.
44. At the heart of any assessment of whether a claim is Jameel abusive is an assessment of two things: (1) what is the value of what is legitimately sought to be obtained by the proceedings; and (2) what is the likely cost of achieving it?
45. But it is clear from Sullivan that this cannot be a mechanical assessment. The Court cannot strike out a claim for £50 debt simply because, assessed against the costs of the claim, it is not 'worth' pursuing. Inherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of vindicating legal rights – as part of the rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigants but society as a whole.
46. In assessing the value of the Claimant's claim, the starting point is that the Second Defendant accepts that he has a viable claim for defamation arising from the publication of the three paragraphs of a statement that its representative, Mr Lewin, made to the publishers of The Chronicle. Were this not the case, it would not need to have recourse to the Jameel jurisdiction to strike out the claim. As such, the Court should only prevent the Claimant from pursuing this claim, in the exercise of his legal rights, on a clear and compelling basis.
47. I am satisfied that the Claimant can identify something tangible or of value for which it is worth fighting; for him, it is vindication (in the extended sense I have explained in [41]-[42] above).
48. As is clear from Mr Ward's witness statement ([29] above), the Second Defendant has stated an intention to defend defamatory allegations of fact, reflected in the Capable Meaning, based on a defence of truth. Whether the Second Defendant does defend the publication on this basis remains to be seen. Other responses to the claim are available and, no doubt, the Second Defendant will consider all options open to it. But if it does rely upon a defence of truth, then that opens the prospect that the Claimant can, if ultimately successful, obtain vindication from the allegation(s) made against him. It is quite clear to me that this is something that is of genuine concern to the Claimant and I do not doubt the sincerity of his attempts to secure it. He feels wronged by the findings of the NCTL and has sought to challenge them ever since they were made. In particular, he denies that there was ever any touching (sexual or otherwise) of Miss A.
49. In some cases, an effort to attack findings like these by a subsequent libel action might be impossible or even impermissible (e.g. if it amounted to a collateral attack on findings of the court). The Claimant's case is unusual in this respect and he is, perhaps, in a particularly unfortunate position.

i) The original findings of the NCTL have been published, and continue to be published, by The Chronicle. As this publication is protected by privilege, the Claimant's avenue of redress through a defamation claim has been closed off. Indeed, his claims against the First Defendant's publication of at least two articles have been summarily dismissed without any adjudication of the truth or falsity of the underlying claims.

ii) The Claimant appealed against the findings of the NCTL. He was successful, and both the banning order imposed upon him and the findings that had been made against him were quashed.^[1] However, his success was on the basis that the NCTL had lacked jurisdiction to investigate and make findings against him. There was no adjudication as to whether the allegations were true or not. Andrews J did conclude that the Claimant's other grounds of appeal (some of which challenged the factual findings of the NCTL) had no substance. Legally, however, following the quashing of the decision, those findings no longer have any legal status. He has no way to challenge those findings: in law, they no longer exist (hence, no question of collateral attack arises).

The Claimant has therefore not been able to challenge the truth or falsity of the allegations that were the subject of the NCTL findings by either route.

50. A significant part of Ms Wilson's submissions relies upon these factors as demonstrating that the Claimant's claim against the Second Defendant is Jameel abusive. She relies particularly upon Warby J's conclusion in [91] ([7] above) that the three paragraphs for which the Second Defendant is responsible do not "add materially to the overall defamatory sting of the article". The reputational harm that is caused by the publication is therefore the same, with or without the three paragraphs. As such, she submits, nothing of value can be achieved.
51. I do not accept this submission, or Ms Wilson's suggestion that, if I were to reach a different conclusion from Warby J, our judgments would be "inconsistent". In the underlined passage in [91] from his judgment, it is clear that a significant part of the Judge's conclusion was that, judged against the article as a whole, it would be illegitimate and disproportionate to allow a claim against the First Defendant for publication of a single paragraph of a statement made by the Second Defendant. In my judgment there are important differences between the claim against the First Defendant based on paragraph [15] and a claim against the Second Defendant on the same paragraph.

i) A significant aspect was that it would be disproportionate to hold the First Claimant responsible only for a statement made by the Second Defendant.

ii) As I read [91], part of the reasoning of the Judge for this conclusion was that the Claimant also had a claim against the Second Defendant that remained after he had dismissed the claim against the First Defendant.

iii) The claim against the First Defendant was in relation to the whole of the article. The Judge had found that, for the publication of fifteen of the sixteen paragraphs, the First Defendant had an unassailable defence (reporting privilege and, insofar as it was necessary, honest opinion). The additional element of the claim against the First Defendant that arose from paragraph [15] had to be seen in the context of the totality of the publication for which it was responsible and the defamatory sting it would convey. The Second Defendant, however, was not responsible for the publication of the first thirteen paragraphs of the article, but only the last three. The Second Defendant had chosen to make a statement, which it knew was liable to be published in The Chronicle and which has been found, on its own, to be capable of bearing a defamatory factual meaning against the Claimant. There is nothing unreasonable, or abusive, in the Second Defendant having to account for its own actions in making a statement about the Claimant for publication.

52. I also reject Ms Wilson's submission that the Claimant cannot now obtain vindication for the allegations made in the part of the article for which the Second Defendant is responsible. Plainly he can, for the reasons I have explained ([48] above). The fact that the Claimant is unable to bring a libel claim against the publishers of The Chronicle makes the claim against the Second Defendant more (not less) important or valuable to him. It now affords him the only opportunity to obtain vindication for the defamatory meaning conveyed by the article; an article which is still being published online. I accept that the claim against the Second Defendant, if successful, may provide only limited opportunity to repair past reputational harm, and is extremely unlikely to lead to an injunction being granted against the First Defendant regarding further publication of the article. But there is no reason to suppose it cannot effectively provide him with some redress against past harm and it would give him protection against future reputational harm.
53. If, as it has indicated it may, the Second Defendant does rely upon a defence of truth, unless disposed of in some other way, the proceedings will resolve with a determination of whether the allegations made against the Claimant (that were the subject of the NCTL's – now quashed – findings) are proved true. Everything would, of course, depend upon the ultimate parameters of the litigation, but if the Claimant were to prevail against a plea of truth, several tangible benefits would potentially follow:

i) the Claimant would have a judgment which he could use on any occasion in the future when he is confronted with the original allegations, perhaps, as he suggests, when applying for a job;

ii) the proceedings might well be reported in media local to the Claimant, potentially counteracting the earlier publicity which he considers has been damaging to his reputation; and

iii) the First Defendant might, in light of the judgment in the Claimant's favour, make an editorial decision to remove the article. If it did not, the Claimant might be able to pursue other avenues of redress against that refusal, e.g. redress under data protection laws or a complaint to IPSO, the newspaper's regulator. I make no comment about the viability of these options, but it cannot be said that these are fanciful or are unavailable in the event of a defence of truth being rejected after trial.

54. Based on this assessment, I am satisfied, at this stage, that there is something of real value to the Claimant that could be achieved by these proceedings. In my judgment, it certainly cannot be said that this claim is obviously pointless.
55. In terms of the other side of the analysis ([44] above) – the cost of achieving the identified benefit – that clearly favours the Claimant. In her judgment, the Master did not consider whether it would be impossible "to fashion any procedure by which that claim can be adjudicated in a proportionate way": Ames –v- Spamhaus Project Ltd. In fairness, she can hardly be criticised for this. No defence had been pleaded and the time for filing one had not arrived. Some general indications are given in the witness statement of Mr Ward as to possible defences upon which the Second Defendant might rely, but that is no substitute for seeing the pleading and being able to identify the issues and the parameters of the litigation.
56. No costs budgets or other estimates of costs were before the Master. It follows that it would have been impossible for her to have formed anything other than a very broad and impressionistic assessment of the likely costs. It comes as no surprise, therefore, that she did not embark on this exercise.
57. These factors point firmly towards the conclusion that, at this stage of the case, it is impossible fairly to reach the conclusion that continued litigation of the Claimant's claim will yield no tangible or legitimate benefit to the Claimant proportionate to the likely costs and use of court procedures to achieve it. As I noted in Alsaifi -v- Trinity Mirror (No.2) [102]:

"… 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."

Precisely the same can be said about this claim.

58. For the reasons I have given, I am satisfied that the Master should not have dismissed the Claimant's claim as an abuse of process. As it is not suggested that an honest opinion defence could dispose of the whole of the Claimant's claim, the Second Defendant was not entitled to summary judgment on that basis. The Order of 21 December 2017 will be set aside. I will hear submissions as to the appropriate order to be made consequent on this judgment.
59. I should deal with one further matter. At the hearing, the Claimant sought an order granting him judgment on his claim pursuant either to CPR Part 24 or s.8 Defamation Act 1996. No time was taken up with this. There are several reasons why such an order cannot be justified, but the substantive one is that the Claimant cannot satisfy the requirements for a judgment to be entered against the Second Defendant on either basis. The nature of the potential defences available to the Second Defendant is set out in Mr Ward's witness statement. The issues they raise could not fairly be determined on any summary basis at this stage of the claim.

Note 1    “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.” [2016] EWHC 1519 (Admin) [100] per Andrews J    [Back]