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

7.                  There followed, on 10 February 2014, an article, written by Susannah Butter, published by the Second Defendant, in the Evening Standard, under the headline: “Dubai’s a small place - he took Louis in an instant” (“the Standard Article”).

8.                  Both articles were published online from the date of first publication. They have remained online since, although they have been amended several times since publication. The text of the two articles - as originally published - is set out in Appendix 1 to this judgment.

11.              For online publication of the articles:

i)                   between first publication and 12 June 2015, 5,178 unique visitors from the UK to the Independent Article; and

ii)                 between first publication and 15 June 2015, 1,585 unique visitors from the UK to the Standard Article

16.              Re-Amended Defences, withdrawing reliance upon s.4(3) Defamation Act 2013, were filed on 12 November 2020 (see [125] below). s.4(3) is the statutory embodiment of what had become known, under the Reynolds common law defence, as ‘neutral reportage’: see Flood -v- Times Newspapers Ltd [2012] 2 AC 273 [77]-[79] per Lord Phillips (quoted in [138] below).

21.              Before doing so, I should set out some general observations about the witnesses. The Defendants did not require the Claimant to be cross-examined. Two witness statements of his, his first, dated 7 July 2015, and his fourth, dated 14 July 2020, stood as his examination in chief. As is often the case, where the substantive defence is a defence of public interest under s.4, the nature of the defence, and the issues to be determined, means that the claimant can give little or no evidence relevant to the defence.

22.              The First Defendant relied upon the evidence of Alistair Dawber, Andrew Johnson, Alastair Sloan, and Christopher Green. The Second Defendant relied upon the evidence of Charlotte Ross and Susannah Butter. Both Defendants relied upon the evidence of William Gore. Each of the Defendants’ witnesses was cross-examined. I am satisfied that each witness was honest and did his/her best to assist the Court. Unsurprisingly, most of the witnesses could recall little, if anything, about the events that had taken place over 7 years ago. This has had an impact on the Defendants’ ability to demonstrate aspects of their public interest defence.

(1) Relevant Codes of Practice/Conduct

24.               The Code was divided into the following Clauses: (1) Accuracy, (2) Opportunity to reply, (3) Privacy, (4) Harassment, (5) Intrusion into grief or shock, (6) Children, (7) Children in sex cases, (8) Hospitals, (9) Reporting of crime, (10) Clandestine devices and subterfuge, (11) Victims of sexual assault, (12) Discrimination, (13) Financial journalism, (14) Confidential sources, (15) Witness payments in criminal trials, and (16) Payment to criminals. The Code had an overarching section on the public interest which provided:

“There may be exceptions to [Clauses (3), (4), (6), (7), (8), (9) and (16)] where they can be demonstrated to be in the public interest.

1.      The public interest includes, but is not confined to:

                   (i)      Detecting or exposing crime or serious impropriety.

                   (ii)     Protecting public health and safety.

         (iii)    Preventing the public from being misled by an action or statement of an individual or organisation.

2.      There is a public interest in freedom of expression itself.

3.      Whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that publication, or journalistic activity undertaken with a view to publication, would be in the public interest and how, and with whom, that was established at the time.

4.      The PCC will consider the extent to which the material is already in the public domain, or will become so.

5.      In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.”

28.              Ms Page QC cross-examined Mr Gore about the requirement, included in the Defendants’ Code (see [25(iv)] above), to put any allegations to any individual that would potentially be damaged by publication of an article. Mr Gore accepted that this was generally how this part of the Defendants’ Code was read, but he drew attention to the paragraph that followed - the suggestion that queries should be raised with the “desk head” and legal department - and stated that there may be occasions where there would need to be discussion “about any element of this section potentially not [being] invoked”. Generally, however, he accepted, “if the subject of a story was likely to be seriously damaged by an article, then it might well be appropriate to put the matter to the subject”.

31.              In January 2014, Alistair Dawber was the foreign editor of The Independent. By email, on 21 January 2014, Mr Sloan pitched a story to Mr Dawber (with paragraph numbers added but underlining in the original):

“Hi Alistair,

Hope you are well. Another UAE pitch for you, do let me know your thoughts?

[1]     A British citizen faces an ‘unfair trial’ and years in a Dubai prison, after her violent ex-husband falsely accused her of kidnapping her own son, say human rights groups.

[2]     She has been beaten by Dubai police, harrassed (sic) and prevented from returning to UK. She was made homeless with her three year old son.

[3]     The family have also spoken out over the behaviour of the Foreign Office, whose behaviour they describe as “disgusting.”

[4]     The womans (sic) husband, a French businessman residing in Dubai, started beating her shortly after they married in 2011. Afsana Lachaux, a British citizen from London, aged 43, had just given birth to their child, who she fled with after it became unsafe for her to live with the husband. They later divorced.

[5]     But under Dubai laws he was able to place a travel ban on her and prevent her from working - meaning that she became homeless and had to take shelter in a womans’ (sic) refuge run by a local charity.

[6]     Afsana and her son have lived in poverty since then, unable to work and unable to return to the UK. They have been reliant on the support that her elder, recently graduated sons can provide. This ordeal has financially ruined her entire family and they struggle to make ends meet.

[7]     On one occassion (sic) she was put in prison with her son, who was denied food and water, and she was violently assaulted by prison guard, says human rights group Emirates Centre for Human Rights.

[8]     In October 2013, her ex-husband found her at Jumeirah Beach hotel and violently grabbed the three year old - who has not been seen since.
He then reported her to police and she faces a kidnapping trial - which Emirates Centre for Human Rights say ‘She will never face a fair trial in the UAE. The UAE legal system is prejudicial to women and widely criticised by democratic nations.’

[9]     Human Rights Watch and Amnesty approached for quotes, they will back up all above and are aware of the case. Quotes coming back tomorrow.

[10]   I’m going to Skype the mother tomorrow.

[11]   Quote coming from her MP and FCO spokesperson, family are also sending me what they found out about her ex-husband from US, he had a restraining order after he beat up ex-girlfriend.

[12]   V Strong quotes from family - who are happy to go on record as ‘disgusted’ with FCO.

[13]   ‘Quite disgusted with the way they have handled it. As a British family, we’re very upset that they haven’t intervened. They could have done more.’

[14]   ‘Correspondence sent to Alistair Burt, Hugh Robertson and William Hague was not even replied to. They’ve all been to UAE to sell fighter jets but haven’t raised our case once with the authorities.’

[15]   ‘The responses we received from the Foreign Office officials were insulting.’

Let me know your thoughts?”

32.              In his evidence, Mr Dawber explained that the story fell under the remit of ‘home news’, being one that involved issues confronted by a British Citizen whilst abroad. He could not remember, when he gave evidence at the trial, whether he had previously been pitched stories by Mr Sloan. Mr Dawber forwarded the email to Mr Moore and Mr Green. Mr Green was the Deputy News Editor, a post he had held at the time for some 2½ years. He responded to Mr Dawber, at 12.34, “Looks like a decen[t] yarn - HuffPo ran this yesterday”. He posted into his email the text of the Huffington Post article. Mr Green explained in his evidence that his comment was “news desk parlance for conveying that it looks interesting and is worthy of further investigation”.

33.              At 13.08, Mr Green emailed Mr Moore: “Looks like this guy [Mr Sloan] isn’t getting most of the info on this until tomorrow, so will contact him now and maybe list Weds4Thurs if it stacks up.” Mr Green explained this meant the earliest an article could appear on the news list would be on Wednesday for a possible publication on Thursday. He did not accept that this meant that publication was imminent; “in a newsdesk situation, two days later is not imminent.” He said that, by “stacks up”, he meant that what had been promised in the pitch was fulfilled in the draft article and it passed the usual checks made prior to publication.

34.              Mr Green said that he could not recall carrying out any investigation into Mr Sloan’s previous work or any ‘due diligence’ on him. He did not think that, had he done so, he would have made any record of it: “it would have been more something I would have done on my computer and then satisfied myself that way and moved on from that”. For his part, Mr Johnson’s evidence was that it would have been Mr Green’s responsibility to do research on Mr Sloan and his experience but he “wouldn’t start questioning [his] senior about a freelance commission”. Mr Sloan did not recall being asked any questions about his prior experience or articles he had published previously. There are no documents suggesting that he was. He thought that he had unsuccessfully pitched an article once before to Mr Dawber. Mr Sloan was not aware of the Defendants’ Code and no-one at the First Defendant had brought it to his attention. He did not follow the link in the footer of Mr Green’s email (see [29] above).

35.              At 13.54, Mr Green emailed Mr Sloan:

“… Sounds like a very interesting and shocking case. We’d certainly be interested in a news story - would it work to do it tomorrow for Thursday’s paper? That seems to work best as it’ll give you time to get all the quotes and other material together. When is the trial due to start do you know? And are their (sic) pictures available of her and her son?...”

36.              It is clear, from an email sent on 22 January 2014, that Mr Sloan and Mr Green had spoken during the evening of 21 January 2014. Mr Green could not recall what was discussed, and no note of the conversation is available. He had no recollection of whether he had asked Mr Sloan to put the allegations made by Afsana to the Claimant for comment. Ms Page QC asked Mr Green whether he had been asked to check whether he had any notes. Mr Green said he had not, but he explained that, when he was working on the newsdesk, most communication was by email or quick phone conversation. He had a pad on his desk, but he did not use it systematically to record information:

“It would take me quite a long time to go through a pad and I don’t remember preserving or making any sort of conscious decision to keep hold of them. I have no idea where they are now, so I presume I must have got rid of them at certain junctures, I guess.”

37.              On 23 January 2014, at 08.23, Mr Green emailed Mr Sloan’s pitch to Mr Moore:

“Herewith. Seems like a shocking tale - we have pics of her with her son. He’s since got lots more quotes etc. Will get him to send draft over now.”

In his email to Mr Moore, Mr Green had highlighted paragraphs [4] and [5] in the pitch, which contained the first reference to domestic violence by the Claimant. At the same time, he emailed Mr Sloan to request that he send over a draft article advising, “We’re hoping to do it in tomorrow’s paper”. When cross-examined, Mr Green could not recall what he had considered “shocking” in Mr Sloan’s pitch. He accepted that, in his pitch, Mr Sloan had given no indication of how he was intending to verify the allegations of domestic violence made by Afsana.

38.              Mr Sloan emailed his first draft of the article to Mr Green at 10.09. Mr Green forwarded the email with the draft article - without comment - to Mr Moore at 10.34. Mr Sloan emailed a revised copy of the article at 11.51 commenting on the amendments: “… the son has been in touch and says he wants the allegations to come from him, not his mother, as she is still facing charges in Dubai and doesn’t want to jeopardise his case.” Again, Mr Green forwarded this to Mr Moore at 11.55. In his evidence, Mr Green said that he had no specific recollection, but he would have wanted “to keep Mr Moore in the loop”.

39.              In his witness statement, Mr Green explained that the following day - 24 January 2014 - the article would have been on the news list in morning conference. The ‘news list’ identifies the articles that are candidates for publication in the following day’s newspaper. Mr Green thought that, at that time, the morning conference took place at either 10am or 10.30am. It was attended by all heads of department; i.e. the foreign editor, news editor, arts editor, picture editor, etc. There would be discussion about the news list, and the stories on it, and the relevant editors would explain what they were about. Mr Green did occasionally attend the morning conference, but he could not recall whether he had done so on 24 January 2014. No notes or records were kept as to what was discussed at the morning conference.

40.              Following morning conference, at 11.09 Mr Green sent an email to the newsdesk: “Can someone give this a once over and see if there are any gaping holes?” Mr Green had no recollection of this email, but he thought that it was a general instruction to give the story “another check and look over” rather than raising any specific concern. He wanted someone to go through the article to see “whether there were any errors, whether there was anything that didn’t quite make sense, really just running a ruler over the whole thing”. Mr Johnson was the person at the newsdesk who took on this task.

41.              In January 2014, Mr Johnson was acting in a freelance capacity as an assistant news editor. He was a seasoned journalist with 20 years’ experience. Asked whether he kept a notebook, Mr Johnson confirmed that he kept a pad on which he jotted down phone numbers or things like that, but he was not in the habit of keeping notes relevant to particular stories. Ms Page QC asked him whether he had looked back at the pad that he had in January 2014. He said he had not and that he had not been asked to look for it.

42.              Mr Johnson said that he understood Mr Green’s request to give the article a “once over” was “standard newsroom due diligence to ensure it is viewed by more than one person so that any difficulties or missing pieces are noticed.” In cross-examination, Mr Johnson accepted that this due diligence process would extend to identifying issues in an article that might give rise to a complaint. He also accepted that the draft article, although it did not name the Claimant, did contain serious allegations against him.

44.              Mr Sloan responded to Mr Johnson, at 14.57. He sent a revised article and commented: “See below, have angled it around lack of support from FCO”. Mr Johnson replied, at 14.59, raising a point that he had picked up. In the Daily Mail article he had found, the Claimant was described as an “aviation engineer”. Mr Johnson told Mr Sloan: “happy to go with French currency dealer if you’re sure”. Mr Sloan subsequently confirmed that he was sure that the Claimant was a currency dealer. Asked by Ms Page QC why this detail mattered, Mr Johnson said: “because of accuracy…; you want to be as accurate as possible”.

45.              At 15.33, Mr Johnson sent a further revised draft of the article to Mr Sloan for approval (with paragraph numbers added):

“[1]   The family of a British woman trapped in the United Arab Emirates and facing charges of kidnapping her young son have accused the UK authorities of abandoning her to her fate.

[2]     They also claim that, Afsana Lauchaux (sic), 46, was assaulted whilst in custody in Dubai and say they are ‘disgusted’ that the Foreign Office seems ‘more interested in selling arms’ to the country than helping her. Mrs Lauchaux, from Poplar, east London, was at the height of her career as a British civil servant and political consultant when she met a wealthy French currency dealer while travelling on business.

[3]     They were married in 2010 and the couple moved to Dubai. Shortly afterwards she gave birth to a baby boy named Louis.

[4]     However four months later, the family claim her French husband became abusive and violent. He also hid Louis’s French passport, and refused to allow their child to be registered as a British citizen.

[5]     Fearing for her own safety, Ms Lauchaux escaped from the apartment, taking Louis with her.

[6]     She tried to return to the UK - but her husband secured a travel ban from a Dubai court and requested that the Dubai authorities confiscate her British passport.

[7]     He also initiated divorce proceedings and won custody of Louis.

[8]     Mrs Lauchaux’s family claim that her husband raised several cases against her, which are based on Sharia law and effectively side with the husband. The spiralling costs meant that she ran out of money and became homeless, living off money sent to her by her two grown up sons from her first marriage, who had remained in London.

[9]     Trapped in Dubai, Mrs Lauchaux turned to the local embassy for help. At first, says her son, IT consultant, Rabbhi Yahiya, 26, the consulate were helpful.

[10]   They referred her to a refuge for victims of domestic violence (which rose 36% in UAE in 2012), but, according to Mr Yahiya, consulate officials didn’t realise the refuge was legally bound to notify her husband once she checked in.

[11]   Mrs Lauchaux was forced on the run again.

[12]   She again contacted the local consulate and officials this time advised her to go to the police station to face charges of libel her ex-husband had brought against her.

[13]   Arriving at the police station, her son claims Ms. Lauchaux was physically assaulted by a police officer, and that her baby son was denied food and water.

[14]   Then in October 2013, meeting with a friend for a coffee - her ex-husband arrived unexpectedly and snatched Louis, now aged three-and-a-half, from her arms. She has not seen him since.

[15]   Ms Lauchaux’s ex-husband then filed a further case against her for kidnapping, and if found guilty, she could face several years in prison.

[16]   Mr Yahiya says he has written several letters to the Foreign Office to no avail.

[17]   ‘We saw that there were lots of high-profile politicians going out to support British companies, so we thought we could get them to raise my mothers (sic) case while they were there.’

[18]   In the past year, David Cameron, William Hague, Alistair Burt and Hugh Robertson have all made official trips to Dubai in a bid to secure a lucrative sale of Eurofighter Typhoon military jets.

[19]   ‘Most of our letters, emails and phone calls were never returned. They don’t want to jeopardise the sale,’ claimed the son. The fighter jet deal fell through in January when Dubai pulled out unexpectedly.

[20]   ‘The British government have failed to support Afsana, because they were seduced by a lucrative potential arms deal,’ said Rori Donaghy, director of Emirates Centre for Human Rights.

[21]   ‘As it happened, and despite all Cameron and Hague’s efforts, the warplanes deal fell through anyway. They should be prioritising the welfare of their citizens, rather than arms sales that never even come to fruition.’ Nick McGeehan, Middle East Director for Human Rights Watch, also added ‘The UAE’s dysfunctional system and laws that discriminate against women mean that Ms Lachaux cannot be guaranteed the fair trial to which she’s entitled.’

[22]   In December her MP, Jim Fitzpatrick, raised her case in Parliament.

[23]   ‘Sadly, although Afsana is a Muslim, because she is a woman in a Muslim country and because she is being reported by a man, even though he is French and, I believe, is not a Muslim, she has to explain and defend herself to each set of police officers who come to arrest her and, when she goes to report at police stations and is detained, she has to go through the elaborate process of explaining her circumstances all over again. She is not able to work and is surviving on what her family can send to her from London.

[24]   ‘To compound Afsana’s misery, she found out last month that her husband had divorced her and had successfully sued for custody of their child in a sharia court in Dubai more than 12 months ago. The rule in the UAE and under sharia law is that if 12 months have lapsed and the decision of the court has not been challenged, it is no longer appealable and is upheld. She was divorced and lost custody, but was not even aware of the fact.’

[25]   Yesterday he told The Independent: ‘The way Ms Afsana Lauchaux has been treated by the Dubai authorities is appalling.

[26]   ‘As a woman in a Muslim country the authorities there have taken the word of the man as true, and she has been subjected to the full rigours of the law, and more.’

[27]   A Foreign Office spokesperson told The Independent ‘We cannot interfere in the judicial process of another country, and must respect their systems just as we expect them to respect the UK’s laws and legal processes.’

[28]   She added: ‘We will continue to provide consular assistance to the family.’

46.              In his email he told Mr Sloan that he had “ever so slightly tidied it up a bit”. In his evidence, Mr Johnson agreed with Ms Page QC’s suggestion that this phrase was included to try and spare Mr Sloan’s feelings for what amounted to a substantial re‑write of his article. Mr Johnson said that his email had been “over polite” but that it was not unusual for him to make significant changes to a draft article. Ms Page QC asked Mr Johnson about material that had been inserted into the draft (the new paragraph [7] stating that the Claimant had initiated divorce proceedings and obtained custody of Louis). Mr Johnson was unable to remember any details about this, or confirm whether this new information had been taken from the Daily Mail article that he had found. Mr Johnson accepted that he had not drawn Mr Sloan’s specific attention to the new material he had added, although he did ask him “to give it a quick read through to make sure I haven’t introduced any errors etc.”.

47.              Mr Sloan responded to Mr Johnson at 15.58:

“All looks good to me. When is it going up? Also is it going in paper? I’ll let the family know. They’re very pleased to be getting the coverage.”

48.              Mr Johnson was not able to recall whether he saw the article again before it was published. Ms Page QC asked Mr Johnson whether Mr Sloan’s email had rung any “alarm bells” for him; suggesting that the family might have an agenda to promote. Mr Johnson said it had not:

“… obviously the family want publicity and Mrs Lachaux wants the publicity because they want to… pressure the Government to help her. From our standpoint there is a woman who is claiming to be trapped in a foreign country that is not renowned for its women’s rights and the family are appealing to the Foreign Office for help and they’re not getting it. It’s not surprising that the family would be pleased to be getting some coverage that would help put pressure on the Government to help her.”

50.              Prior to publication, no approach had been made to Claimant either to put the allegations to him or to obtain anything he wanted to say in rebuttal. In cross-examination, Mr Green accepted, looking back:

“I think it would have been better definitely that we had approached him… I think the reason that we did not do this this time, or I did not do this, is it didn’t occur to anyone involved in the story to do it was because we were focused on these other elements that I have been highlighting…”

He faintly suggested to Ms Page QC that the fact that the Claimant was not “the subject” of the Independent Article may have been the reason, but he accepted that this was reconstruction rather than his recollection. In his witness statement, Mr Green had said, based on a review of his emails rather than any independent recollection: “I believe that there were two key reasons why it did not strike me as necessary to contact the Claimant. They were that he was not named and was not the main subject of the story.”

53.              Ms Ross read the Daily Telegraph article and some other coverage of the story, including, she believed, an article appearing in the Daily Mail and the Independent Article. She thought that the coverage illustrated the ways in which the UAE system had worked against Mrs Lachaux. Ms Ross noted that Afsana’s case was being supported by Human Rights Watch and her local MP and that Afsana was described as a senior civil servant. This suggested to Ms Ross that the story had credibility and she decided to commission an article by one of the Evening Standard feature writers, Susannah Butter. Ms Ross forwarded Mr Amies’ email to Ms Butter on 29 January 2014. Some further emails later, a meeting between Ms Butter and Rabbhi Yahiya, Afsana’s son, was set up for 4 February 2014.

55.              On Friday 7 February 2014, a 11.02, Ms Butter emailed Mr Amies:

“The story about Afsana Lachaux is down to go in Monday’s paper. I’ve gone to the FCO for a response but was wondering whether if you know how best to get a response from Bur Dubai Police Station and the Dubai police? I’ve tried the embassy here and they gave me a generic email address but weren’t sure of the right person. Not to worry if not! I’m cutting down the copy now and then we’ll get it legalled and fact check with Rabbhi.”

Mr Amies responded, at 11.22, but was unable to provide anything other the generic email address from the Dubai Police’s website.

56.              At 11.28, Ms Butter emailed Mr Yahiya:

“The piece is going in Monday’s paper. We’ve got to try and get a response from Bur Dubai prison and the Dubai police about you mum’s treatment. I know it’s a Friday there so not the best time but do you have any idea who the best contact over there is? The Dubai embassy here told me to email [address given] but I was wondering if you knew of anyone better…

I can give you a ring anytime between now and Sunday night to check the rest of it if you want, or go through it over email. Today would be best but whenever is easiest for you. Just let me know.”

58.              Ms Butter sent another email to Mr Yahiya, at 13.33, raising some further queries:

“Three more quick things:

Can I clarify when your mum discovered that her ex-husband had been granted custody? I’ve got this:

Her husband obtained a divorce in a Sharia court in August 2012. “My mum didn’t even know. Men can do that in Dubai. She was denied custody on claims that Louis had eczema, making her an ‘unfit mother’.” She claimed to Yahiya that she had never met the four witnesses who testified against her. (HOW DID SHE KNOW WHO THEY WERE IF SHE WASN’T AT THE COURT? DID SHE LEARN THEIR NAMES LATER? WHEN DID SHE FIND OUT DIDN’T HAVE CUSTODY? She lived on the sofas of friends and “in squalid accommodation, living off noodles” with Louis, who his brother says is “sharp and funny. Last time I saw him I was playing a puzzle game and he was better at it than me.”

What’s the chronology of her meeting him and telling you about him. I’ve got:

In 2010 Lachaux told her children she was seeing a French man, a comfortably-off avionics engineer, based in Dubai. Yahiya says: “I never asked where they met. We were glad my mum had found someone and was happy.” They married in February 2010 and moved to Dubai in March. “It was the first time my mum had lived abroad. It was a big adventure. They were in love and expecting a child so she was excited. Now I remember that he seemed reserved and only his brother and parents came to the wedding, but at the time I didn’t question it.”

Do you have the email that he sent you and your brother saying if you came to Dubai you’d be implicated in aiding kidnap and could we see it if legally necessary?”

59.              There was an email response from Mr Yahiya to Ms Butter, at 13.44, asking whether he could call her. In her evidence, Ms Butter believed that they had spoken. She could not recall what was said, or whether Mr Yahiya had answered the questions she had asked. She had not made a note of the call. Ms Butter’s email demonstrates that she was taking a critical approach to elements of Mr Yahiya’s account and challenging him on some details. It is unfortunate that it is not now possible to establish what, if any, responses she received.

61.              At 15.56, Mr Yahiya sent some further documents by email to Ms Butter:

“Please find attached some docs for your reference. They may help provide background info and context - sorry but the medical report is in Arabic but I (sic) from the incident when my mother was assaulted in Safa Park.

As my mother has stated, she received very prejudicial treatment from the police and apparently they do not usually provide case numbers or references. However the UK FCO is fully aware of all complaints and allegations that my mother has raised regarding mistreatment and complaints to the police. They should have detailed correspondence on this - in fact I am sure of this.

Let me know if you need anything else.”

62.              The documents he forwarded with that email were (1) “Emergency Physician Notes” for Afsana, as noted, written in Arabic dated 20 January 2012; (2) a chronology written by Afsana for incidents between 14 January 2011 to 21 January 2014 (“Afsana’s Chronology”); (3) a print out from the website of the Judicial Branch of Arizona, Maricopa County which recorded steps in proceedings brought against the Claimant by Anna Montuori in 2002; and (4) a document with the heading “Refuge Conditions”, written by Afsana, giving an account of the period she had spent in a women’s refuge in Dubai between February and March 2012 (“the Refuge Report”).

63.              Ms Butter was questioned by Ms Page QC in detail about these documents. Ms Butter confirmed that she did not understand Arabic, but that she had sent a copy of the medical notes to a friend who did, and he had told her that the report had included a record of “bruises on the lower back”. Ms Butter said that she had studied the documents she had been sent carefully and compared them with the text of her draft article.

64.              In her evidence, Ms Butter said: “I would never just repeat someone’s serious allegations without looking into them a bit.” Ultimately, she considered his account to be credible. Ms Page QC has criticised the rigour with which she approached this task, and it is fair to say that there was material in Mr Yahiya’s interview with Mr Butter which, if she had compared it with the documents he had provided - particularly Afsana’s Chronology and the Refuge Report - cast some doubt on elements of his account and suggested that he was exaggerating the ill-treatment of his mother. To take one example, from the cross-examination, Mr Yahiya, in his interview, had claimed:

“[The Claimant] got my mum flung into jail and said it was to teach her a lesson. And his own son, who was a year old, he had [them] locked up for eight hours in Bur Dubai. And this was two weeks after a British guy was beaten to death. It was the same jail cell. I can’t remember his name…”

            In Afsana’s Chronology, the entry for 13 June 2011, recorded:

                            “CID officers from Bur Dubai police turn up to my temporary accommodation and arrested and charged me with absconding because husband had asked for me to be placed on ‘wanted’ list. Louis (1 year old) and I spent hours in a prison cell and were refused access to food or water… Both the baby and I were held in a cell for over 4 hours without food or water. I was assaulted by a prison guard… during this incarceration.”

65.              In the Standard Article, Ms Butter stated that Afsana had been detained for 4 hours, preferring Afsana’s account in her Chronology over the longer period suggested by Mr Yahiya, but recorded (incorrectly) that Mr Yahiya had stated that the period was 4 hours ([10]-[11]). The account of this incident, presented in the article, is in fact an amalgam of the details from Afsana’s Chronology and Mr Yahiya’s interview. It is not clear how Mr Yahiya (or Afsana) could have known that Afsana had been held in the same cell in which a person had been beaten to death. No satisfactory explanation has been given for any verification of this claim and it does look like something of an embellishment by Mr Yahiya.

66.              Ultimately, Ms Page QC suggested to Ms Butter that comparison between Mr Yahiya’s interview and the documents he had provided to her showed him to be an unreliable source. Ms Butter answered:

“I was acting on what had been - there were a number of things, there was the fact that it had been widely reported in other newspapers, there was the fact that his mother was facing trial for kidnap, that wasn’t a - that was an indisputable fact. It had been raised in the House of Commons, which I thought was a reputable source. I looked it up in Hansard and I read Jim Fitzpatrick’s full statement about it where there were allegations of domestic abuse. So that’s another person independent of the family talking about it in Parliament. I met this man for over an hour and formed an impression of him in good faith. So no, it wasn’t staring me in the face at all and I tried to stand up for his claims and, as you can see from the article, I did not include everything that he told me.”

67.              At 16.06, Mr Yahiya forwarded what purported to be an email to him from the Claimant, dated 7 March 2012. In these proceedings, the Claimant has disputed the authenticity of this document. It is not necessary to investigate the variance between the document sent to Ms Butter and the version which the Claimant says is the true document, as it is not suggested that Ms Butter could or should have been aware that the email that Mr Yahiya had forwarded was not genuine. The importance, for present purposes, is that email forwarded to Ms Butter contained the Claimant’s email address, as Ms Butter said in her evidence she had noticed at the time.

68.              At 16.09, Ms Butter received an email from the press department of the Foreign and Commonwealth Office (“FCO”) providing a comment for publication. Ms Butter replied, at 16.37, asking the FCO whether they had contact details for the Dubai police force. The FCO replied, at 17.32, that they did not.

69.              At 18.08, Mr Yahiya emailed Ms Butter providing her with a contact at the UK embassy in the UAE. He was unable to provide a contact for the Dubai police.

70.              Ms Ross and Ms Butter were working on the story during the afternoon of 7 February 2014. Ms Ross explained that, as editor, her role was to commission the story and then to work on the article prior to publication. Ms Ross said that Ms Butter had considered that Mr Yahiya was credible. Ms Butter sent the text of the draft article to herself, by email at 17.39 that afternoon, and Ms Ross’s evidence was that this was in almost identical terms to that which was ultimately published the following Monday. Ms Ross was aware that Ms Butter was raising queries with Mr Yahiya during the afternoon, but she did not believe that she had seen any of the emails or documents. She did recollect mention of the US injunction. Ms Ross did not recall being aware that Ms Butter had continued her efforts to obtain comment from various subjects of the article over the weekend.

71.              At 10.06 on Saturday 8 February 2014, Ms Butter emailed the contact at the UK embassy provided by Mr Yahiya:

“We are running an article about a woman called Afsana Lachaux in Monday’s London Evening Standard.

She is standing trial on Tuesday by her ex-husband for kidnapping their son.

In the piece her son mentions Lachaux being pushed in the face by a police guard at Bur Dubai prison and kept in a cell with her one-year-old son for four hours in 40 degree heat without food or water.

It also says she went to the police on multiple occasions to tell them about being hit by her husband and they told her they didn’t care if she lived or died, and she should just go home to her husband.

We would like a response from you about both of these things - her treatment in Dubai, and Yahiya’s appeals to you.

If you could direct me to the appropriate person to get a response from I would be very grateful.

The piece goes to print on Monday at 8am so it would need to be sent over before that…”

72.              The consular official replied at 07.15 on Sunday 9 February 2014 asking Ms Butter to direct her inquiry to the FCO Newsdesk, with whom Ms Butter had already been in contact. The FCO Newsdesk provided a further comment for publication by email at 18.03.

73.              At 04.59 on Monday 10 February 2014, the Dubai Police responded to Ms Butter’s inquiry (see [60] above) advising that she would need to contact them via diplomatic channels (i.e. via the UK Embassy).

74.              At 10.21, Ms Butter replied to the UK consular official in Dubai:

“Do you have the contact details of Bruno Lachaux’s lawyers. We urgently need to get in touch with them.”

75.              At 10.28, Ms Butter sent an email to the French Embassy in Dubai:

“We are running an article about a woman called Afsana Lachaux in Monday’s paper.

She is standing trial on Tuesday by her ex-husband, Bruno Lachaux, for kidnapping their son.

In the piece her son mentions Afsana being beaten by Bruno and him trying to snatch their child in the park.

We would urgently like a response from Bruno Lachaux - do you have the details of his lawyers?

If you could direct me to the appropriate person to get a response from as soon as possible I would be very grateful.”

76.              At 12.22, the UK consular official replied to Ms Butter’s email confirming that she did not have the contact details for the Claimant’s lawyers.

78.              In her witness statement, Ms Butter said this about her efforts to contact the Claimant prior to publication of the Standard Article:

“… I do not recollect sending the mail to the French consulate at 10.28 and cannot recollect why I did it, as it was too late to get a response from Mr Lachaux. Whatever the reason for my late attempt to contact Mr Lachaux, I do not recollect having any misgivings about the form that the Article was in at the time it was published, which made clear that the reported allegations of domestic violence by Mr Lachaux were denied and had not been tested in any court.”

79.               In cross-examination, Ms Butter said she could not recall there being any discussion about delaying publication of the article in order to contact the Claimant. The article was obviously topical because of Afsana’s impending court appearance the following day. Asked whether there was any particular urgency in publication or whether the article could have been held back, Ms Butter answered:

“I think we did want to run before her trial because we wanted to show -- because our aim in -- well, as far as I saw it, our aim in getting the article out was to show the FCO and the Dubai government that the world would was watching how they had treated this woman in what we saw as a different way to how she’d be treated in the UK. So I think that was the peck, and we do tend to do articles before the trial unless -- then maybe do a follow-up after the trial, but I think it -- we did want if, it was going to run, it would run before the trial, but then, if there was a substantial reason for it to not run -- well, not me, but the editors would have pulled it.”

80.               Ms Butter acknowledged that the last-minute efforts to contact the Claimant meant that it was unlikely that any response would have been able to have been included in the original publication. Nevertheless, had a response been provided, she said that the online version of the article could have been updated and subsequent print editions, depending on timing.

81.              In her witness statement, Ms Ross said:

“I do not recollect making a conscious decision about whether to contact Mr Lachaux. I am now aware that Susannah sent an email to the French Consulate at 10.28 am on 10 February seeking contact information for Mr Lachaux’s lawyers for a response. This is not something that I recollect from the time, or that I believe I would have asked her to do. As far as I was concerned, the Article was ready for publication on the Friday. The form that it was in did not call for a response from Mr Lachaux and in any case, it was far too late to reasonably expect one at that point… The absence of an attempt to contact Mr Lachaux, which would have been apparent to me from the article, would not have raised a question mark in my mind as to the public interest in publishing it.”

82.              Ms Ross accepted, in cross-examination, that Ms Butter had sought comment from both the FCO and the Dubai police prior to publication (see [57] above). She stated that she believed, but had no clear recollection, that she first became aware of Ms Butter’s attempts to contact the Claimant in December 2014 following the legal complaint. She said, however, that she was “very sure that she would not have asked [Ms Butter] to make an approach, particularly at that time… I do remember being very surprised in the December conversations when I heard that. I remember being very surprised.” The cross-examination then continued:

Q.      Why were you surprised?

A.      It’s too late to get a response and it’s an indirect route.

Q.      I see. But you were surprised that she left it so late?

A.      I was surprised that it was happening in those circumstances.

Q.      You mean you were surprised that she at any stage would have sought a response from Mr Lachaux, or you are surprised that she was seeking it over the weekend -- on the Monday?

A.      Certainly, on the Monday morning. In terms of the article, it was prepared without a response, and we were happy with it on the Friday.

Q.      That was a deliberate decision, was it, to have no response in the article?

A.      As I say, I don’t recollect making a conscious decision about that. The publication preparation work that you do is an ongoing process. It’s a constant series of editorial adjustments that you make and I don’t remember making a decision or not about that…

83.              Ms Page QC suggested to Ms Ross that the failure to put the allegations to the Claimant prior to publication was a breach of obligation in the Defendants’ Code to ensure that any potentially damaging story is put to the subject before publication (see [25(iv)] above). Ms Ross did not accept that this part of the Defendants’ Code applied in this case. Asked why not, Ms Ross stated that it was an article “about the situation that Mrs Lachaux found herself in.” The cross-examination continued:

Q.      It’s a damaging story to Mr Lachaux, isn’t it, Ms Ross?

A.      It’s not for me to say.

Q.      No, you see for yourself it’s a damaging story.

A.      I think it’s a complicated story.

Q.      It’s a damaging story.

A.      I think it’s complicated.

Q.      Are you really not prepared to accept that this is a story damaging to the husband of Mrs Lachaux? Is that your truthful response?

A.      It does contain allegations that are serious and I do accept that.

Q.      And damaging; why aren’t you prepared to accept the word “damaging”?

A.      Well, my hesitation is actually about the court case that came afterwards

84.              That last passage of cross-examination perhaps neatly demonstrates a phenomenon that is commonly seen in litigation: the burden that a witness feels not to give an answer that s/he perceives might damage the case. In adversarial litigation, where often much is at stake, it is a situation that may be difficult to avoid. But a witness should not shoulder this load. S/he should simply give truthful answers to the questions given. The consequences of the answer - which most witnesses will simply not be in a position accurately to judge - are matters for submission by the parties. I repeat here that Ms Ross was plainly a truthful witness, but she was also intelligent and was clearly concerned about the consequences to the Second Defendant’s case if she accepted that the allegations made in the article against the Claimant were damaging. She need not have been worried on this score. Since the decision on meaning and serious harm, there is no dispute that the Standard Article contained damaging allegations about the Claimant the publication of which caused serious harm to his reputation.

88.              These findings were reached after he had heard evidence from both the Claimant and Afsana, and after cross-examination which had “exhaustively analysed” the disputed facts and available documents: [10]. In addition to the findings made in [123], the Judge made at least one further finding adverse to the Claimant and, in doing so, rejected part of his evidence: [50].

89.              Following Mostyn J’s decision, both articles were very briefly taken down from the Defendants’ websites before being reinstated - with amendments (see [95(iii)] below) - on or around 4 March 2017.

94.              A substantive response to the Claimant’s letters of complaint was sent, on behalf of both Defendants, on 16 October 2014. The Defendants refused to take down the online versions of the articles. The letter did not engage with the factual rebuttal raised by the Claimant to the allegations made in the articles.

97.              The Defendants have relied upon the evidence of Mr Gore as the person who decided that it was in the public interest to continue publishing the articles following receipt of the letters of complaint and, later, the judgment of Mostyn J. Mr Gore is now the Head of Partnerships and Projects at the National Council for the Training of Journalists. In September 2014, he was Deputy Managing Editor of The Independent and Evening Standard, a post he had held since 2011. Prior to that, Mr Gore had worked for the Press Complaints Commission. One of his roles, as Deputy Managing Editor, was to decide whether to take down or update an article that was being published online by either Defendant.

99.              Mr Gore did not, in that witness statement, deal with Mostyn J’s judgment. He addressed this issue in his second witness statement, dated 4 December 2020, stating:

“I read the judgment of Mr Justice Mostyn shortly after it was handed down. Having reflected on it, I believed that it was in the public interest to continue publishing our original articles with the addition of a note summarising that judgment (in addition to publishing reports of it). In my view, the public interest factors referred to in my first statement remained valid. I noted too that the judgment was critical of both the parties; the defamation actions which Mr Lachaux had brought against [the Defendants] were at the time, in the Court of Appeal; and what’s more, the French courts had at that time refused to recognise the Dubai divorce judgment. I believed that the steps that were taken following the judgment were right and appropriate. They were not some effort to upset Mr Lachaux.”

100.          Mr Gore was cross-examined at the trial on this evidence. He accepted that, when he first received the letters of complaint from the Claimant’s solicitors, he considered that the articles had contained “some serious allegations about [the Claimant], albeit that he wasn’t named, and the allegations were presented as those of the family”. Mr Gore, however, stated that it had not struck him that the failure to put the allegations to the Claimant prior to publication was a “glaring error”. In respect of the letter of complaint, Mr Gore accepted that the letters of complaint contained a “highly detailed rebuttal” of the allegations against the Claimant. He did not accept that the articles were wholly one-sided. The Standard Article, he said, had stated that the Claimant had denied the allegations. He accepted that the articles were based on sources (Afsana and Mr Yahiya) who had an obvious axe to grind and in circumstances where it was highly likely that there would be another side to the story. Mr Gore stated in his evidence that, following receipt of the complaint from the Claimant, he did not form an immediate view as to whether Afsana’s allegations of domestic violence and assault were true, but “further down the line… I thought that they were probably true”.

101.          Ms Page QC asked Mr Gore whether he accepted the findings made by Mostyn J. Mr Gore replied: “I didn’t accept them on the principle that there seemed to be no discrimination in the use of the local UAE laws. That didn’t seem to me to be the case”. Ms Page QC asked Mr Gore whether he accepted the factual findings made by the Judge in paragraph [122] of his judgment (set out in [87] above). Mr Gore said: “I’m not sure that I agreed with it, but I guess I accept it”. Pressed by Ms Page QC as to the Judge’s factual findings, Mr Gore said that he was not claiming to be in a position to know better than the Judge. Ms Page asked why the Defendants had waited until 13 December 2017 to withdraw the defences of truth that had been included in the Defendants’ Defences. Mr Gore answered:

“I think our view was several points. First of all, it appeared to be the case that Afsana Lachaux was planning to appeal the decision of Mr Justice Mostyn; secondly, the [Defendants’] appeal in the serious harm case had yet to be heard, I think, at the Supreme Court; and given all of that, it seemed to me that our course of action in reporting the outcome of this family hearing, adding the addendums to the original articles was the most appropriate course of action, and, as you say, we did not remove or recant the truth defence until a later date”

106.          The key statements from the Defendants’ witnesses were signed between 9-13 July 2020, i.e. over 6 years after the events the witnesses were being asked to recall. Although each of the Defendants’ witnesses was clearly honest, doing his/her best to recall events and genuinely trying to assist the court, it is unreal to expect any witness to be able to have any genuine recollection of events that took place so long ago. All the more so when there is such a dearth of contemporaneous documentation. It is surprising, to say the least, that the Defendants waited so long to proof witnesses whose evidence was so obviously important to each Defendant’s defence of public interest. What each witness might have been able to recall, in September 2014, is now necessarily a matter of speculation, but it is a reasonable assumption that each witness’s memory would have been better then than it was in July 2020, when statements for the proceedings were finally taken.

107.          Mr Sloan confirmed that he had first been asked to provide an account of the events that led to the publication of the Independent Article early in the New Year of 2015. Mr Dawber could not really recall when he was first made aware that there had been a complaint by the Claimant, he thought that he first became aware of it in the year prior to the trial, although possibly it could have been earlier. Asked by Ms Page QC when he had first been asked to give his recollection of events leading up to publication of the Independent Article, Mr Dawber replied: “I’m not sure. Within the last 12 months, I think”.

110.          In his witness statement, Mr Johnson stated: “I remember very little about the story. Having reviewed the emails… I do recall some details.” Cross-examined about this, Mr Johnson confirmed that he had first reviewed the emails, in 2020, when he was approached to be a witness in the case, leading to his witness statement on 9 July 2020. This was also the first time that he had become aware about a complaint from the Claimant about the Independent Article. He added:

“Before that - when I was first approached - I had no recollection of the case whatsoever, and the name Lachaux meant nothing to me. When I was sent the emails, then I did have a vague recollection of the day looking at the case of emailing Alastair Sloan, but obviously because it’s such a long time ago, I have no recollection of any sort of conscious decisions or discussions… I was approached to be a witness. I remembered nothing about the case whatsoever, but on receiving the emails it did jog my memory slightly…”

111.          In his witness statement, Mr Johnson explained his view of the public interest in the Independent Article in the following two paragraphs:

“4.     My recollection is that our - at least my - view was that the importance of the story lay in the alleged failure of the British government to help a woman facing an unfair trial due to systemic discrimination against women in the UAE, which could result in her going to prison…

5.      From a point of view of principle, the primary role of journalism is to hold the executive to account. The main public interest in the story was this - the possible failure of the government to help a citizen facing an unfair trial abroad. It is the first duty of government to aid and protect citizens. So disclosure of a possible failure to do so is very much in the public interest. This, in my view, stands even if the person facing an unfair trial may be guilty or not telling the whole truth. In this case, the British authorities had no way of knowing whether Mrs Lachaux’s allegations of domestic violence were true or not and that would not be relevant to the government’s obligations to protect her from the consequences of a discriminatory legal system which was apparently not giving her a fair trial.”

112.          In cross-examination, Ms Page QC asked Mr Johnson whether, in light of his candid confirmation that he had no recollection of the events, these paragraphs of his witness statement were recollection or reconstruction. Mr Johnson confirmed that they were reconstruction. At the end of his evidence, I asked Mr Johnson whether he had a recollection of considering, at the time, whether publication of the article was in the public interest. Mr Johnson answered: “I can’t say that I specifically did do that”. He added: “I can say that my email to Alastair [see [43] above] that the FCO not helping, it seems to imply that I did, or suggest that I did”.

113.          In light of those answers, the cross-examination of Mr Johnson as to whether the public interest that he had identified in his witness statement was actually relevant to the article that had been published is not relevant, but I did not find Mr Johnson’s answers to be at all convincing. Indeed, he gave the impression that he was arguing a case that had been devised by someone else and in respect of which he was neither confident nor wholly convinced.

114.          When cross-examined, Ms Ross said that she had given an initial account of the events leading up to publication of the Standard Article in December 2014. She had not kept any records of the decision to publish and said that most communications at the time would have been verbal. When cross-examined, understandably, she could not recall details of what had taken place over seven years’ ago.

116.          It is a remarkable feature of this case that, excluding emails, there are just two contemporaneous documents of any significance:

i)                   The first is a handwritten note made by Mr Sloan of an interview he had with Mr Yahiya. He had transcribed his notes - not altogether accurately - in 2020, shortly before providing his witness statement. He could not recall when the interview had taken place, but he thought it was possible that it would have been shortly before he submitted his pitch to the First Defendant. He said that he was keen to pitch the article as soon as possible. In his evidence, Mr Sloan stated that he thought he had made other notes for the article, but none of the others had been preserved.

ii)                 The second is a document containing some background information on the article together with some handwritten notes made by Ms Butter (see [54] above).

Mr Sloan believed that he may have had some emails with people that he had contacted when drafting the article, but these had been lost at some point, he thought, in 2017. The loss of those emails - during the currency of the litigation - is surprising.

117.          There are no contemporaneous documents that record anyone, at either Defendant, for example, addressing the question whether publishing the Articles in the terms they appeared, with the information that was available to the Defendants, was in the public interest. Even more surprising, in this case, is that fact that there are no documents that record or evidence Mr Gore’s decisions that it was in the public interest to continue to publish the articles (albeit with amendments or additions). That was so even after the letters of complaint had raised a direct challenge, in September 2014, to whether the Defendants had any prospect of demonstrating that there was a reasonable belief that publication of the original articles was in the public interest.

118.          When he gave evidence, Mr Gore was asked by Ms Page QC how, in 2014, editors at the Defendants’ titles would be able to demonstrate fully that they had reasonably believed that publication of a particular article was in the public interest. Mr Gore answered:

“We didn’t have a formal policy as to how that would be demonstrated and in the same way that the Press Complaints Commission considered cases on their own merit, we would regard it as an important principle but one that could be demonstrated in a variety of ways. So it might be that there may be a note of some of the conversation taking place, it may be that there would be a recollection of conversations taking place, but we did not have a formal policy that X and Y must happen on any scenario where there was a question mark over public interest matters.”

119.          My immediate reaction on hearing that answer was that this demonstrated a lax and, frankly, amateurish approach to the recording of decisions of potentially critical importance. The defence of both Defendants cannot, in this case, be demonstrated “in a variety of ways”. The defences depend fundamentally and, in the absence of any supporting documents, critically upon the recollection of witnesses, some of whom have candidly accepted that they have no recollection of the relevant events. Upon reflection, I have asked myself whether it is unrealistic for a Court to expect documents to be available that record (or at least shed some light on) decisions taken as to what was identified, at the time, as the public interest justification for publication? I do not think it is. In other areas, where professionals are asked to account for events that have happened and decisions they have taken, the Courts are used to seeing contemporaneous records. For example, doctors, nurses, teachers, police officers, lawyers, surveyors, dentists, accountants, opticians, and architects routinely take notes and keep records of their professional lives; information received, advice given, decisions made, and actions taken. Partly, this record keeping assists them to do their respective jobs, but one of the reasons that these records are kept is because the professional may be called upon to account for his/her decisions or actions - to superiors, a regulator or even in litigation - and the recognition that memory alone may be an unreliable tool upon which to rely.

120.          Perhaps more importantly, a requirement that journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed that publication would be in the public interest, but also how and with whom this was established at the time, is not an unworkable, unreasonable, or unachievable objective set by lawyers or the Court. It is the standard set at the time by the PCC in the industry Code of Practice; a “benchmark” that was set by the print media’s own regulator at the time as the “cornerstone of the system of self-regulation”. As Lord Nicholls said of the old Reynolds defence: “The common law does not seek to set a higher standard than that of responsible journalism, a standard the media themselves espouse”: Reynolds (at 202E). Although the statutory test is no longer “responsible journalism”, the principle, underpinning Lord Nicholls’ observation, remains valid.

122.          Of course, the Court has no power to require a journalist - or any other professional - to maintain records. But, as the burden of establishing a public interest defence under s.4 Defamation Act 2013 lies upon the defendant, a defendant seeking to prove that s/he reasonably believed that publishing the statement complained of was in the public interest is likely to find that the prospects of success are enhanced by being able to produce contemporaneous records of the decision(s) taken. Leggatt J’s observations about memory of beliefs being particularly susceptible to decay over time (Gestmin [18]) are likely to be equally relevant in publication cases in which a defendant’s belief that publication was in the public interest is an issue to be resolved.

123.          Defendants seeking to rely upon such a belief - whether in support of a s.4 defence or otherwise - would be well advised to ensure that they are able to demonstrate that they reasonably believed that publication would be in the public interest and how, and with whom, that was established at the time. My confidence that the Court is not setting unrealistic targets is also somewhat fortified by the fact that the current Codes of both IPSO and IMPRESS both impose substantially the same requirements as the old PCC Code of Practice (see [25] above). The IMPRESS Code, particularly, contains a very clear explanation why it is good practice to retain contemporaneous documents that record important decisions about the public interest justification for publication. As an explanation of the importance of contemporaneous documents, it can hardly be bettered.

127.          The public interest defence in defamation has now been placed on a statutory footing. Section 4 of the Defamation Act 2013 provides:

4. Publication on matter of public interest

(1)     It is a defence to an action for defamation for the defendant to show that—

(a)     the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b)     the defendant reasonably believed that publishing the statement complained of was in the public interest.

(2)     Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

(3)     If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

(4)     In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.

(5)     For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.

(6)     The common law defence known as the Reynolds defence is abolished.

131.          The second issue, under s.4, concerns the defendant’s actual state of mind at the time of publication: Doyle [75]. This element of the defence is not established by demonstrating that a reasonable person could have believed that the publication was in the public interest: Turley [138(vii)]. The defendant must prove that s/he did believe that publication was in the public interest. A failure to do so will mean the defence will fail: see e.g. Doyle [76]; Turley [149].

132.          It is the third issue that is likely to be the major point of contention whenever reliance is placed upon a s.4 defence.

133.          As is clear from the terms of s.4(2), and emphasised both in Serafin and Economou, an assessment of the public interest defence under s.4 requires a consideration of all the circumstances. In Economou [110], Sharp LJ explained:

“… This defence is not confined to the media, which has resources and other support structures others do not have. Section 4 requires the court to have regard to all the circumstances of the case when determining the all‑important question arising under section 4(1)(b): it says the court must have regard to all the circumstances of the case in determining whether the defendant has shown that he or she reasonably believed that publishing the statement complained of was in the public interest. In my judgment, all the circumstances of the case must include the sort of factors carefully identified by the judge, including, importantly, the particular role of the defendant in question. The statute could have made reference to the Reynolds factors in this connection, but it did not do so. That is not to say however, that the matters identified … may not be relevant to the outcome of a public interest defence, or that, on the facts of the individual case, the failure to comply with one or some of the factors, may not tell decisively against a defendant. However, even under the Reynolds regime, as Lord Nicholls made clear, the weight to be given to those factors, and any other relevant factors, would vary from case to case. As with Reynolds therefore, with its emphasis on practicality and flexibility, all will depend on the facts.”

134.          It is also clear from that passage, as endorsed by Lord Wilson in Serafin [69], that providing they are not treated as any sort of ‘checklist’, the Reynolds factors will remain potentially relevant when assessing whether a defendant’s belief that publication was in the public interest was objectively reasonable. Lord Wilson traced the legislative history of s.4 through the post-Reynolds authorities in [57] to [59], and observed in [60]:

137.          The requirement in s.4(3), in cases of neutral reportage, that the Court should disregard any omission by the defendant to take steps to verify the truth of the imputation conveyed by the statement complained of, is an implicit recognition that efforts to verify will usually be regarded as an important factor in the assessment of the reasonableness of a defendant’s belief that publication was in the public interest. That is not to say that a failure to verify will necessarily lead to the s.4 defence being rejected; everything depends upon the particular circumstances of the case. However, recognition of the general importance - outside neutral reportage - of steps taken to verify defamatory allegations is consistent with both domestic and Convention jurisprudence.

141.          A key feature of Mr Price QC’s submissions is that the articles were reporting, rather than adopting, the allegations made by Afsana. In the case of the Standard Article, he relies particularly on the fact that there was an express statement at the end of paragraph [4] that the allegations of domestic violence had not been tested in court and were denied by the Claimant. Rightly, he has referred to the well-known statements of principle, from the jurisprudence of the European Court of Human Rights, emphasising the importance in not fettering the media’s ability to report on matters of public interest. By way of recent example from the ECtHR’s decisions, in Ólafsson -v- Iceland (2018) 67 EHRR 19 [56] (with footnotes omitted):

“The Court further reiterates that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas, and that ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’.”

142.          This principle cannot be seen in isolation and needs to be properly understood in the context of Convention jurisprudence (particularly the importance attached, usually, to verifying defamatory allegations recognised in Axel Springer and Loutchansky). Seen in that context, it does not support a contention that, where a publisher is reporting allegations made by others, which can damage the reputation of another, a publisher is relieved of the onus to observe what the ECtHR has referred to as the “ordinary journalistic obligations”: Ólafsson [57].

143.          Publishers have at their disposal a variety of reporting techniques. For example, those who are unable or unwilling to take steps to verify defamatory allegations, and who wish potentially to rely upon a public interest defence to defend their publication, may well have to adopt a reporting technique that reduces the overall defamatory impact (for example the inclusion of statements that are effective in indicating that the publisher is not adopting the allegations). Alternatively (where the circumstances permit), the publisher might be able to present the allegations as part of an accurate and impartial account of a dispute to which the claimant was a party. In that latter respect, although the publisher is likely, by reason of s.4(3), thereby to be relieved of the need to take steps to verify the allegations, s/he will nevertheless be required to obtain and publish the other side of the dispute. These are examples to demonstrate the sort of issues that a publisher is likely to have to consider when deciding what technique of reporting is chosen. Difficult questions of judgment may arise, for example, the extent to which it is necessary to include defamatory allegations against others in an article which otherwise makes a significant contribution to a matter of public interest. If a journalist or publisher can demonstrate that s/he has carefully considered the necessity for, and proportionality of, the harm to the reputations of those included in the publication, then a Court is likely to accord due weight to that assessment. Ultimately, in each case where a defendant relies upon a defence under s.4, the Court has to make an assessment of all the circumstances and to make due allowance for proven exercise of editorial judgment.

145.          The section therefore required consideration of (a) whether the worker believed, at the time he was making it, the disclosure was in the public interest; and (b) whether, if so, that belief was reasonable: [27]. Mr Price QC submits that this is very similar to the approach that the Court adopts to s.4. As to the assessment of whether the belief was reasonable, Underhill LJ said this:

146.          Based on this authority, Mr Price QC submitted that the Court may regard a defendant’s belief to be wrong, but nevertheless reasonably held, alternatively, the Court may regard the belief to be reasonably held, wholly or partly, on grounds different from those contemplated by the defendant. He argues that all that matters is that the defendant’s (subjective) belief was (objectively) reasonable. Extending this argument, Mr Price contended that - although the belief must be judged by reference to the information known to the defendant at the time of publication - Economou [139(5)] - the Court may take into account factors, arising from that information but not consciously taken into account by the defendant, to find the belief to be reasonable. Further, the defendant should be entitled to rely on specific examples of a general fact known at the time of publication, even if they were not in the defendant’s mind at the time. Mr Price QC argued that such examples can be relied upon in support of an honest opinion defence and “there is no reason, in principle, for taking a stricter approach in relation to s.4”.

149.          I should deal, finally, with the potential relevance to the issues I have to decide of the relevant Codes of Conduct; the PCC Commission Code of Conduct and the Defendants’ Code (see [23]-[26] above).

150.          In his closing submissions, Mr Price QC submitted that the Claimant should not be entitled to rely upon the provisions of the relevant Codes, or any alleged breach of them, because this point had not been taken by the Claimant in his Reply. He argues that: “it is unfair for a journalist to be confronted with an unpleaded criticism of their conduct or the newspaper’s practices in the witness box.” It may not have been a point taken in the Reply, but Ms Page QC included submissions on the Codes in her opening submissions, both written and oral. In his opening submissions, Mr Price QC said this about the Claimant’s reliance upon the Codes:

“… because the PCC code has come up… I just wanted to make the point that the clause in relation to public interest, which also includes the demonstration that it’s been considered, is linked to specific elements of the code, which is privacy, children, harassment and subterfuge. That’s what it’s tied to. There’s not a general obligation to demonstrate consideration of the public interest in any other. Similarly - and this is a matter that came up in the Supreme Court in Serafin - there is no obligation under the PCC, IPSO, or in the Press Code to invite comment from the claimants; there’s simply an obligation to take care to ensure accuracy. So the [Defendants’ Code], to which your Lordship was taken, actually goes beyond that and has a specific provision. My learned friend said that my clients hadn’t pleaded in the defence that they had complied with the code. I should also make the point that the claimant hasn’t pleaded in the reply that the defendants have breached any code. That’s all I was proposing to say about the code -- sorry, one further thing. The Ofcom, the Broadcaster’s code, they do have obligation to invite comment, in contrast to the print media.”

151.          Nothing more was said about what I might call the ‘pleading point’ and, in due course, Ms Page QC cross-examined several witnesses about the Defendants’ Code, without objection from Mr Price QC.

152.          Mr Price QC helpfully provided a copy of written submissions provided by the Media Lawyers Association (“MLA”), as intervenors, to the Supreme Court in Serafin. The MLA had submitted that, in contrast with Human Rights Act 1998 and the Data Protection Act 2018, Parliament had not included, in s.4 Defamation Act 2013, a specific direction that the Court should consider any relevant code of practice. Nevertheless, the MLA accepted that, since s.4(2) required the Court to have regard to “all the circumstances”, that would include any relevant code of practice. In his closing submissions, Mr Price QC has however suggested:

“In order for the issue to be properly addressed, reliance on the code, by the claimant or defendant, would need to be pleaded and subjected to the standard litigation process. Consideration would include the purpose and interpretation of the code in the context of the circumstances of the case and ascertainment of the relevant facts.”

153.          Mr Price QC did not develop this point in his oral submissions, but I am not convinced that the objection has any substance. The Defendants’ Code is not a difficult document to understand. It was promoted to the public generally as embodying the Defendants’ commitment to high standards and how each Defendant expects its staff to meet them. I do not know what subjecting it to the “standard litigation process” would be likely to have produced by way of further relevant material. The purpose of the Defendants’ Code is expressly stated in the document itself. Mr Price QC has not identified what further “relevant facts” might have been obtained had the Claimant included reliance on the Defendants’ Code in his Reply.

154.          In my judgment both the PCC Code of Conduct and the Defendants’ Code are potentially relevant to the issues I have to decide under s.4. My reasoning is similar to that of Warby J in Sicri [111]-[122]. Ultimately, the decision on whether a defendant’s belief that publishing the statement complained of was in the public interest was reasonable is an objective question for the Court. However, a relevant code of conduct has a potential bearing in two key respects.

i)                   First, if a defendant has complied with the provisions of a relevant code, it seems to me that s/he is entitled to rely upon that fact as being a factor supporting the objective reasonableness of the belief that publication was in the public interest. Correspondingly, a failure to comply with a relevant code of conduct, depending on the seriousness of the breach, its consequences, and the explanation for it, may also be relevant to the assessment of the reasonableness of the belief. I agree with the MLA’s submissions to the Supreme Court that, under s.4(2), the Court must have regard to all the circumstances. Adherence to a regulatory code plainly may be a relevant factor.

ii)                 Second, under s.4(4), the Court must make such allowance for editorial judgment as it considers appropriate. For similar reasons, whilst remaining an objective assessment, the Court is likely to afford greater allowance to editorial judgment if it is shown to have been exercised in a process in which there has been proven compliance with a relevant regulatory code.

157.          At first instance, Tugendhat J concluded [249]:

158.          His decision, and this conclusion, was approved by Lord Neuberger MR in the Court of Appeal [77], who added [78]:

“On the face of it, at least, that conclusion appears to be not merely one which the judge was entitled to reach: it was plainly right... If the original publication of the allegations made against DS Flood in the article on the website had been, as the judge thought, responsible journalism, once the report’s conclusions were available, any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done.”

161.          The parties had also agreed, between themselves, further issues relating to the continuing publication of the articles online (i) after 22 September 2014; and (ii) after 2 March 2017. The first of these dates was when a letter of complaint was sent on behalf of the Claimant to the First Defendant. A complaint to the Second Defendant was sent on 23 September 2014 (see [92]-[93] above). The second date was when Mostyn J handed down judgment in the Family Proceedings (see [87] above). The issues the parties agreed that the Court should determine in relation to the continuing publication of the articles were:

Continuing online publication after 22 September 2014

(1)               Have the Defendants shown that they believed, through Mr Gore, following receipt of the Claimant’s letters of claim, that continuing publication of the online articles in their amended form was in the public interest?

(2)               If so, have the Defendants shown that they reasonably believed that continuing publication of the online Articles in their amended form at this stage was in the public interest, taking account of all the circumstances of the case?

Continuing online publication after 2 March 2017

(3)               Have the Defendants shown that they believed, through Mr Gore, following the handing down of Mostyn J’s judgment dated 2 March 2017 and/or the withdrawal of their defences of truth, that continuing publication of the online Articles in their amended form was in the public interest?

(4)               If so, have the Defendants shown that they reasonably believed that continuing publication of the online Articles in their amended form at this stage was in the public interest, taking account of all the circumstances of the case?

(1) Liability for publication of the original articles

(a) First Defendant

(i) Has the First Defendant shown that the statements complained of were on the alleged matters of public interest described in Paragraph 8.1 of the Re-Amended Defence?

(ii) If it has, has the First Defendant shown that those matters were (rightly to be regarded as) matters of public interest for the purposes of s.4(1)(a)?

163.          Paragraph 8.1 of the Re-Amended Defence of the First Defendant advanced the case in respect of s.4(1)(a) as follows:

“There is a general public interest in the application of foreign law and law enforcement to British nationals in circumstances where different standards apply and more particularly to the application of Sharia and Emirati law enforcement to the divorce and custody arrangements in a case of a British woman married in England to a non-Muslim European man working in the UAE, where the man chooses to commence proceedings in the UAE governed by Sharia, such law discriminating against women and failing to provide due process, as compared with English and European family law, including in relation to allegations of domestic violence and abuse, the extent to which the British government ought actively to protect a woman in such a position and whether there may be a reluctance on the part of the government to do so because of the proposed lucrative sale of military jets.”

165.          Again, I shall take these issues together. The separation of them appears to be somewhat artificial and, if this division serves a purpose, it is not clear to me what it is. The Claimant has not argued in its closing submissions that issues (iv) and (v) should be answered “no”. There may have been other people who were involved in the decision to publish, for example Mr Moore, but (a) no evidence has been adduced in relation to Mr Moore’s belief; (b) the First Defendant’s s.4 defence is based solely on the belief of Mr Green; and (c) no suggestion was put to Mr Green in cross-examination that he was not a person who took the decision to publish the Independent Article. The real issue is (iii).

166.          In my judgment, the First Defendant has failed to demonstrate that Mr Green believed that publication of the Article was in the public interest. On the evidence, Mr Green had “zero recollection” about details of the process that led to publication of the Independent Article (see [108]-[109] above). There is no other evidence bearing on the issue of whether Mr Green believed that publication of the Article was in the public interest. Mr Johnson, for example, cannot shed light on what Mr Green thought at the time. Mr Johnson was in the same position as Mr Green; he could not remember the relevant events either. Quite properly, when he was asked whether his account of the public interest in the Independent Article was recollection or reconstruction, he confirmed the latter.

167.          In a written note provided after the final day of the trial, Mr Price QC submitted that the Defendants’ witnesses had not been challenged on the relevant parts of their witness statements “and the court is not in a position to reject any of it”.

168.          For present purposes, I need only deal with that submission as it affects Mr Green, being the individual upon whose belief the First Defendant relies. It is correct that Ms Page QC did not suggest to him that, at the time of publication, he positively did not hold the beliefs as to the public interest in publication of the article that were advanced in his witness statement. However, it is not for the Claimant to prove that Mr Green did not hold the belief, it is for the First Defendant to prove that he did. Ms Page QC’s cross-examination shortly, but effectively, demonstrated that Mr Green had no recollection of his state of belief at the time of publication of the Independent Article. Although he was not asked the same direct question, as was asked of Mr Johnson, as to whether his witness statement was recollection or reconstruction, it is clear that Mr Green’s witness statement is just as much reconstruction on this point as Mr Johnson’s was. I should be very clear. I am not criticising either of them. Frankly, a witness who claimed to have a detailed recollection, without any contemporaneous documents, of what s/he believed on a particular day 7 years ago would be unlikely to be credible. I am quite satisfied that both Mr Green and Mr Johnson have done the best they can to assist the Court. Neither has been anything other than completely honest. Their attempt to reconstruct what they thought at the time has been a genuine effort to assist the Court. Critically, however, it is not a recollection, and I cannot attach any weight to it. It is also unsupported by any other evidence. Ultimately, the burden of proof on this issue rests on the First Defendant. For the reasons I have explained, it has failed to discharge it.

(vi) If so, has the First Defendant shown that its belief was reasonable taking account of all the circumstances of the case?

169.          In the light of my conclusion on the previous issue, I do not strictly need to determine this question. However, having heard the evidence at trial and the parties’ submissions, I consider that I should state my conclusions on this issue as well in case my decision on the previous issue were to be reversed.

170.          In my judgment, the First Defendant has failed to demonstrate that a belief that the publication of the Independent Article was in the public interest was reasonable (whether for the reasons stated in Mr Green’s witness statement or otherwise).

172.          It does not appear that anyone at the First Defendant made any real assessment of the credibility of Afsana’s allegations, but their ability to do so would have been hampered by the lack of any contact with her. None of those involved with publication of the Article at the First Defendant took any steps to verify the allegations made by Afsana. Aside from the Claimant, there were multiple potential avenues of inquiry open to the First Defendant, the most obvious of which was to seek to obtain documents and information from the court proceedings to which reference was made. The allegations made by Afsana were not only untested, but they were also the subject of ongoing contested court proceedings in which, it was a reasonable assumption, the Claimant would have put his side of the story. The Independent Article presented Afsana’s allegations to readers without offering any reason to doubt the credibility of her account.

173.          As a result of the failure to carry out any verification and the failure to contact the Claimant, the Independent Article did not contain anything by way of rebuttal from the Claimant or include his version of events. That was a serious failure in basic journalist good practice and a breach of the Defendants’ Code. This was not a case in which it could be concluded that the Claimant could have nothing valuable to contribute by way of response or answer. The only justification advanced for not contacting the Claimant was that he was not the (main) subject of the article. The Claimant was plainly a subject of the article and, in terms of likely reputational harm, likely to be the main casualty from its publication. Leaving aside the instruction in the Defendants’ Code that it was important “to abide not only by the letter but also [its] spirit”, the terms of the article squarely engaged the obligation to put the story to the Claimant. Beyond the argument that the Claimant was not the subject of the article, none of the First Defendants’ witnesses suggested that there was any other justification for not complying with this “good journalistic practice”.

174.          Mr Price QC argued that “none of the many reputable media outlets that reported the story in a similar manner to the Defendants thought it necessary to invite comment from the Claimant”. This was submitted in support of the contention that it was reasonable for the Defendants not to contact the Claimant or include his response in the articles. I reject this argument as entirely speculative. I have not considered other media publications in detail. I have received no submissions as to whether these articles bear a meaning defamatory of the Claimant, and I do not know the basis on which the other organisations considered they would defend their publications, if called upon to do so. They may have taken the view that they would defend any defamatory meaning as true, in which case the absence of approach to the Claimant and inclusion of his response was not a necessary part of the defence. More importantly, I must concentrate on the actual decisions made in this case by these Defendants.

175.          On the evidence that I have, I would summarise the facts as follows. The First Defendant took a draft article, pitched by a practically unknown freelancer, Mr Sloan, and, without carrying out any (or any significant) checks on him or the contents of his article, published it 3 days later. None of the serious allegations against the Claimant that the article contained was put to him. Although the article did not name him, it identified the Claimant, which Mr Johnson (at least) recognised. None of those involved in the decision to publish considered that there was any need to put the allegations to the Claimant or to seek in any way to obtain and to include anything that the Claimant might want to say in rebuttal of his wife’s allegations in the article. Judged objectively, that conclusion was seriously in error. The resulting article was, therefore, wholly one-sided and, inevitably, bore meanings that were seriously defamatory of the Claimant. I find it surprising that Mr Gore was unwilling to accept that the article was one-sided. It is beyond any sensible dispute that the Independent Article contained nothing to put in the balance against Afsana’s allegations.

176.          I reject Mr Price QC’s argument that the Independent Article did not adopt Afsana’s allegations. Beyond the language of “claims” and “allegations” (which were, in any event, not used consistently), there was nothing in the article to signal to a reader that there was any reason to doubt Afsana’s account. In particular, Paragraphs [4], [7] and [8] were presented without any qualification. Together with the lack of any counterbalance, in the form of the Claimant’s answer to the charge, and the generally sympathetic tone towards Afsana, the presentation was of an account that was both credible and truthful; the effect was adoption.

180.          As before, I will take these three issues together. The evidence clearly established that, subject to the overall supervision of the Editor, Ms Sands, Ms Ross had the final say as to whether the Standard Article was published and, if so, in what terms. Ms Butter is also responsible for the publication of the Standard Article. The Second Defendant has relied upon both Ms Ross and Ms Butter as having believed reasonably that publication of the Standard Article was in the public interest.

181.          In her witness statement, dated 13 July 2020, Ms Ross said this about the decision to publish the Standard Article:

“23.   I believed that it was in the public interest to publish the Article on the basis of the information that we had and in the form that it was in. It was consistent with what I had envisaged when commissioning the article.

24.    The absence of an attempt to contact Mr Lachaux, which would have been apparent to me from the Article, would not have raised a question mark in my mind as to the public interest in publishing it.

25.    The public interest value of the Article related to the systemic failures in Dubai, which were illustrated by Mrs Lachaux’s experiences. I had no reason to doubt the accuracy of the information in the Article relating to the court cases in Dubai. The allegations about the conduct of the Dubai police and the state of the refuge also appeared to be credible. It was relevant that the FCO had been involved in the case for three years and had not questioned the validity of any aspect of the family’s account of Mrs Lachaux’s experiences of the justice system in Dubai. In my experience the FCO would make you aware if a story is not what it seems to be.

26.    The Article reported Mrs Lachaux’s allegations of domestic violence. I did not believe that it was necessary or possible to prove that they were true, before reporting them. They were a necessary part of the story. The Article stated that Mr Lachaux denied them and they had not been tested in any court. I believed that they were sufficiently credible to be reported by The Standard in the context of the Article.”

182.          In her witness statement, also dated 13 July 2020, Ms Butter stated:

“I do have a strong recollection of believing that our readers had the right to know how the Dubai system could treat a woman in Mrs Lachaux’s position and that in telling that story the Article fulfilled an important public interest purpose.”

183.          For the reasons I have explained already, I am very sceptical that either Ms Ross or Ms Butter can have any actual recollection of the beliefs that they had over 6 years ago, as set out in their witness statements for trial. Nevertheless, they were not challenged about this by Ms Page QC, and their evidence was therefore not undermined in the same way as the evidence of Mr Green and Mr Johnson for the First Defendant. Although I am not bound simply to accept a witness’s evidence in the absence of challenge by the opposing party, Ms Page QC’s closing submissions did not contend that I should reject the evidence contained in the witness statements of Ms Ross and Ms Butter as to their beliefs as to the public interest when the Standard Article was published. In those circumstances, my conclusion is that the Second Defendant has demonstrated on the evidence that Ms Ross and Ms Butter both believed that publication of the Standard Article was in the public interest.

(vi) If so, has the Second Defendant shown that the belief was reasonable taking account of all the circumstances of the case?

184.          The Standard Article contained seriously defamatory allegations against the Clamant. Although not named, he was readily identifiable. The ultimate source of the allegations was Afsana, but they were being relayed via Mr Yahiya. My findings in relation to the Independent Article, in [171] above, apply equally to the Standard Article. There was material available to Ms Butter which suggested that Mr Yahiya was exaggerating details of his mother’s account and Ms Ross described Mr Yahiya as “campaigning for her”. There was an obvious risk that both Afsana and Mr Yahiya were partisan.

185.          It is clear on the evidence that Ms Butter was primarily responsible for researching the Standard Article and for the decisions as to who should be approached for comment. The Second Defendant’s pleaded case was that “it was not a necessary element of the [Second] Defendant’s reasonable belief for the allegations [against the Claimant] to have been investigated or believed”. Based on the evidence, I am satisfied that this was certainly not how Ms Butter approached her task, and rightly so. As set out above, she did take steps to investigate the allegations that were made by Mr Yahiya, and she made some attempts to probe the veracity of what he was claiming on behalf of his mother. In my judgment, however, her efforts, although genuine, were somewhat superficial and, ultimately, they were inadequate. In part, I consider that that was because the Standard Article was a feature article, not a news article. It was concentrating upon the plight of a British woman in the UAE told principally through an interview with her son. I accept that Ms Butter did consider Mr Yahiya’s allegations to be credible, but her basis for concluding so was unreliable and she may well have reached a different conclusion (or at least had some reservations) if she had more carefully compared the account he gave in interview against the documents that he had provided. I do not attach significant weight to this factor as it is something which owes much to hindsight.

186.          It is something of an oddity in this case that, very early on, Ms Butter had identified the need to put allegations made by Mr Yahiya to those whose conduct was potentially being criticised - the Foreign Office, Dubai Police and the Dubai prison - but she had initially omitted the Claimant from this category. She was not able to explain this and, judged objectively, it is a striking and inexplicable omission. The need to put the allegations to those who were potentially to be criticised was not only to ensure fairness to them, but also, as recognised by Ms Ross, to try and corroborate the allegations made by Mr Yahiya. If fairness required the unidentified police officers be given a chance to respond to the allegations made against them, it was even more important that the Claimant, who was readily identifiable, should be given the same opportunity. Then, on the day of publication, Ms Butter suddenly did make urgent efforts to contact the Claimant. Perhaps, in haste, she overlooked that she had been provided with the Claimant’s email address and so her efforts to contact him were less effective than they might have been because they had to be made via third parties.

187.          I am unable to reach a firm conclusion as to what it was that led to this belated attempt to contact the Claimant. It very much looks like someone at the Second Defendant - possibly a lawyer - recognised that the Standard Article contained very seriously defamatory allegations against the Claimant, and he had not been approached for comment. It is not necessary to resolve this issue as the base facts are clear. Ms Butter tried to contact the Claimant to obtain his response. She did so because she clearly considered, albeit belatedly, that fairness required that he be given an opportunity to respond. She was not successful. The article was published without the Claimant being given a chance to respond. As with the Independent Article, the failure to put the allegations to the Claimant prior to publication was a clear breach of the Defendants’ Code (see [25(iv)] above). The resulting article was almost entirely one-sided. The final sentence in [4] simply provided insufficient counterbalance to the detailed allegations contained in the rest of the article. Any ordinary reasonable reader was likely to regard this as a dishonest repudiation from a man who could evidently offer nothing beyond a bare denial in response to Afsana’s apparently detailed allegations. In fact, it was incorrect to state in the article that the allegations were denied by the Claimant. He had said nothing because he had simply not been contacted.

188.          The terms and tone of the Standard Article were wholly sympathetic to and supportive of Afsana. Mr Yahiya’s allegations, made on her behalf, were adopted by the newspaper even to the extent of providing a link so that readers could sign a petition in her support; to an ordinary reasonable reader, the Evening Standard was clearly siding with Afsana.

189.          As I have noted, the Standard Article was topical given Afsana’s trial in the UAE was due to take place the following day. It was not suggested by Mr Price QC that this was a factor that justified publication of the article without having contacted the Claimant. The Second Defendant’s position is, simply, that given the terms of the article and the public interest in the subject matter generally, there was no need to do so. I reject that. This was not the approach adopted by Ms Butter and she was correct to try to contact the Clamant to put the allegations to him and to give him an opportunity to respond. Basic fairness - and the Defendants’ Code - required this to be done. No good reason has been provided for why he was not given this opportunity.

193.          The reference to the outcome in France is to a decision by a Court in France refusing to recognise the Dubai divorce judgment. I was not taken to this judgment during the trial. The closing submissions, both written and oral, did not develop any further arguments, on the evidence, as to whether, if the s.4 defence was rejected for the original publication it should be upheld for some later phase of the online publication. Mr Price QC did, however, include in his written closing submissions a sentence saying: “[The Defendants] do not repeat the submissions in their [Skeleton Argument] for trial and oral opening. The [Skeleton Argument] comprehensively sets out [the Defendants’] stance on the relevant legal principles and their application to the facts.”

194.          This is not a particularly helpful way of approaching litigation. It leaves it to me to work out, from the opening submissions, what argument the Defendants wished to advance, in the event that the s.4 defence failed for the original publication.

195.          In these circumstances, I think I am justified in saying relatively little about this point. I certainly do not consider it to be my responsibility to perform the detailed analysis of potential arguments that could be raised about the applicability of the s.4 defence at various points of the continuing publication of the Articles when Mr Price QC has not advanced any such arguments in closing. I shall restrict my analysis to what I regard to be the two critical moments at which it might be thought reasonable for the Defendants actively to consider whether the relevant article should continue to be published and, if so, in what terms. The first point is following receipt of the letters of claim on 22/23 September 2014 (see [92]-[93] above) and then, subsequently, following Mostyn J’s judgment handed down on 2 March 2017 (see [87] above).

(a) Continued publication after the letters of claim

196.          The importance of the letters of claim, for any defence of public interest in respect of continuing publication of the articles, is that they contained the Claimant’s factual response to the allegations published in the articles. At the time of original publication, the Defendants did not have the Claimant’s answer to the charges made against him because the First and Second Defendant had, respectively, not sought or not obtained one.

197.          The letters of claim set out a detailed response on behalf of the Claimant. Mr Gore accepted that it was a “highly detailed rebuttal”. He did not suggest that the account given by the Claimant was inherently incredible, or that it was demonstrably contradicted by any evidence he had. Importantly, the Claimant’s account raised, at least, very serious questions about the veracity of Afsana’s claims, including her allegations of domestic violence. It suggested that she had committed breaches of court orders in the UAE, by abducting Louis and refusing to return him over a prolonged period, for which she was ultimately convicted on 13 February 2014. The letter to the Second Defendant provided details of a witness, said to be independent, who saw the alleged assault of Afsana in Al Safa Park, who supported the Claimant’s account and whose evidence was said to have led the Dubai Public Prosecutor to dismiss Afsana’s complaint of assault.

198.          I have set out Mr Gore’s evidence about the decision to continue publication of the articles following receipt of the Claimant’s letters of claim (see [98] above). In my judgment, Mr Gore’s evidence largely misses the point. The articles contained serious allegations of domestic abuse against the Claimant. Mr Gore was entitled to his belief that Afsana’s case demonstrated flaws in her treatment in the UAE courts and to his view that she had been the victim of a “discriminatory process”, but the challenge raised by the Claimant was to whether it was in the public interest to publish an article which presented a one-sided account by Afsana that she had suffered domestic abuse at his hands (as is implicitly recognised by Mr Gore in paragraph 12 of his witness statement). The amendments made following receipt of the letters of complaint demonstrate that Mr Gore had recognised that it was not in the public interest to continue publishing the articles without any modification, and he acknowledged that it was open to the Defendants to “update” the articles.

199.          However, in the light of the detailed rebuttal of Afsana’s claims in the letters of claim, the very limited amendment of the online articles is surprising. I accept Mr Gore’s evidence that he believed that continued publication of the articles was in the public interest, but Mr Gore does not explain the changes that were made and the reasons for them. It is, of course, pre-eminently a matter for editorial judgment how to respond in such circumstances, and I should be careful not to descend into the role of editor, but I have reached the clear conclusion that the amendments were inadequate and insufficient.

200.          The Defendants had a completely free hand as to what amendments they made to the articles, but they chose to leave the structure effectively unchanged. The body of each article remained, therefore, essentially one-sided. What was added, by way of balance, was added, really as a post-script, in a single paragraph. The effect of that presentation is likely to have a significant impact on the way that it strikes a reader. Although an ordinary reasonable reader will read and acknowledge the paragraph that was added to the end of the article, its impact is likely to be diminished, and not to be as effective as had the Claimant’s response to allegations been presented alongside Afsana’s allegations. Further, the Defendants condensed and summarised the Claimant’s response to such an extent that it unjustifiably stripped away all the detail that he had provided. The detail of a denial is likely to be considered by an ordinary reasonable reader to be important to an assessment of its credibility. The result was an inequality of treatment in the presentation of allegation and denial.

201.          In my judgment, following receipt of the Claimant’s letters of claim, for any belief that continued publication of the articles was in the public interest to be reasonable, more substantial changes to the article were required, properly to reflect the Claimant’s detailed rebuttal. Had the Claimant originally been approached for comment prior to publication, there would have been no justification for excluding so much of the detail that the Claimant had provided from any article that the Defendants published. Standing back, taking into account the original publication and all the circumstances as they stood following receipt of the letters of complaint, the Defendants have not demonstrated that Mr Gore’s belief that continued publication of the articles was in the public interest was reasonable. The s.4 defence for the continued publication of the Articles following receipt of the letters of claim therefore fails.

(b) Continued publication after the Mostyn J judgment

202.          The Defendants’ response to the Mostyn J judgment is even more difficult to understand. Mr Gore appeared to me to be uncomfortable when being cross-examined about his belief that continued publication of the articles after the Mostyn J judgment - albeit with further amendments - was in the public interest. I consider that this discomfort was largely a result of the fact that Mr Gore is an intelligent person and he found it difficult to defend the position adopted by the Defendants.

203.          Although the Claimant did not come out of it entirely unscathed, Mostyn J’s judgment was a comprehensive demolition of Afsana’s allegations following a trial in which both the Claimant and Afsana had given evidence, and the Judge, as apparent from the judgment, had fullest access to all relevant documents (unlike the Defendants). Decisions of the Court are not necessarily entitled to unqualified acceptance. In a democratic society, people may disagree with them. Mr Gore, however, eventually accepted in cross-examination that he did not challenge Mostyn J’s factual findings in relation to Afsana’s complaints about the Claimant. Insofar as he had any quarrel with the Judge’s conclusions, it appeared that this was limited to a disagreement with him as to whether the UAE legal system was discriminatory. The Defendants could have continued to publish their criticisms of the UAE system, based on Afsana’s case, if they wished, but Mostyn J’s judgment required a fundamental reassessment of whether it was in the public interest to continue to publish Afsana’s allegations of domestic violence when these had been entirely rejected by the Court. The position might have been different if Mr Gore had believed, on a credible basis, that Mostyn J’s judgment and findings were wrong. It is an important dimension of freedom of expression, in a democratic society, that individuals and newspapers are free to disagree with, or criticise, judgments of the court, but he did not suggest that he took issue with the Judge’s decision in respect of Afsana’s allegations. The issue under a s.4 defence is whether it was reasonable to believe that continued publication of Afsana’s allegations of domestic violence (albeit with a paragraph referring to the Mostyn J judgment and findings added) was in the public interest following the judgment of Mostyn J. In my judgment, plainly it was not.

204.          The approach adopted to reporting the Mostyn J judgment, in the context of the original articles, was to add a paragraph at the top of each article. Although a link was provided to a news report of the judgment, inexplicably no link to the judgment was provided. In my judgment, it was not reasonable to conclude that this was sufficient to justify continued publication of the original allegations as being in the public interest. An ordinary reasonable reader could be genuinely baffled at what s/he should make of this. Was the newspaper saying that, notwithstanding the judgment of Mostyn J, Afsana’s allegations were still credible and worthy of belief? Was the newspaper suggesting that the Court was wrong?

214.          The Claimant’s evidence relevant to the issue of damages is set out in his Fourth and Fifth Witness Statements, the latter of these being dated 26 February 2021 and provided after the completion of the evidence but before closing submissions. The Claimant’s evidence was not challenged by the Defendants.

215.          The Claimant has set out the impact on him of the articles and the proceedings in some detail. I have considered what he has said carefully. Some of it is not relevant to the assessment of damages. I will not take those parts into account, but I do not doubt the sincerity of the feelings that the Claimant expresses. Only the parts of the Claimant’s evidence to which I refer will I take into account in the assessment of damages. What follows is necessarily a summary.

216.          In terms of impact and damage to reputation of the articles, the Claimant states that he considered that the respective standing of the newspapers involved added weight to their allegations. He said that he regarded the Independent and Standard Articles “as a severe blow to me in my dignity and in my capacity as a father and a husband, especially given all the efforts I had made over a period of years to be reunited physically and legally with Louis after Afsana disappeared with him.” The Claimant speaks, in his witness statement, of his embarrassment and shame at his father telling him that the articles had brought their family name into disrepute, and his concern at his ability to form relationships given the allegations of domestic violence and controlling behaviour. He fears that Louis, now 11, or his friends will discover the articles online. He expressly requested in his witness statement - dated 14 July 2020 - that the Defendants should take down the articles. They did not do so.

217.          As to the conduct of the proceedings, the Claimant stated in his evidence that he felt “like a pawn in a game being played by the Defendants”. He added:

“At times, it has felt as though they have taken a particular course in this case only because they have identified an opportunity to improve the law for the benefit of their newspapers and the UK media more generally. By dealing with things in this way, the Defendants have made me feel that I and my reputation and my feelings are of no consequence to them, and that I am just collateral damage on their road to further their newspapers’ aims… At times during this period I felt vacant and emotionally unavailable to Louis - it is difficult for me to know that I will never get those years back.”

221.          Ms Page QC accepts that the Huffington Post article was “to some degree” to the same effect as the articles in this action, but she has submitted that the defamatory meanings found in relation to the articles published by the Defendants in these proceedings were “more extensive” than those in the Huffington Post article. She has also contended that the Huffington Post does not have the standing and reputation of the two Defendants as publishers and that the overlap in readers is not likely to be similar.

222.          Leaving aside the fact that I have no evidence of the relative standing of the publishers, or the extent of overlapping readership, s.12 does not require consideration of these points. s.12 is a statutory recognition of the principle that there should not be double‑recovery and that, in cases of multiple libels, the Court can consider the full picture to ensure that the total sum that a claimant receives is not out of all proportion with libel awards generally. For example, it would be wrong in principle, for a claimant to bring 12 separate claims against individual local newspapers, with a combined readership of, say, ½ million, and to receive £100,000 from each of them, when a libel in a single newspaper with a readership of 5 million would, for a libel at the very top end of the level of seriousness, only be likely to lead to an award of damages of up to £350,000. s.12 enables the Court sensibly to calibrate awards of damages to ensure that total sum received is proportionate.

223.          Where a defamatory article is published in several newspapers, it may be that there will be distinct harm caused to the reputation of the claimant in the eyes of the readership of each newspaper. If libel damages were awarded solely on that basis, then the impact of s.12 might be limited to demonstrating the extent of any overlap in readership. However, harm to reputation is only one part of the basis on which damages are calculated. The elements of vindication and solatium will require consideration of other matters. In respect of hurt feelings, it would be unreal for a claimant to suggest that s/he can neatly partition the hurt caused by the publication of different articles to the same defamatory effect.

224.          I am satisfied that the Huffington Post article contained allegations to the same effect as published by the Defendants in the articles for which they are responsible. In fixing the sum of damages, I shall pay proper regard to the fact that the Claimant has already received £40,000 for similar allegations. Part of this sum will have been compensation for the Claimant’s hurt and distress. The Defendants are entitled to rely upon this in mitigation of the damages that will be awarded in this claim. I will reflect this in the award that I make.

227.          In my judgment separating out a specific award for “aggravated damages” is unnecessary and, I consider, generally unwise. The Court’s task is to assess the proper level of compensation, taking into account all the relevant factors, which include any elements of aggravation. If, as the authorities recognise, the assessment of libel damages can never be mechanical or scientific, attributing a specific figure to something as nebulous as “aggravation” has an unconvincing foundation. Worse, as it would represent the imposition of a clearly identified additional sum of money, it risks the appearance of being directly attributed to the conduct of the defendant. That comes perilously close to looking like a penalty. For these reasons, I consider the better course is to fix a single award which, faithful to the principles by which damages in defamation are assessed, is solely to compensate the Claimant. The award can properly reflect any additional hurt and distress caused to the Claimant by the conduct of the Defendants. To speak in terms of whether a claimant is “entitled” to an award of aggravated damages is misleading. Every claimant who succeeds in a claim for defamation is “entitled” to an award of damages which may reflect any proved elements of aggravation. The real question is whether the claimant can demonstrate, by admissible evidence which the court accepts, that the damage to his/her reputation and/or his/her distress or upset has been increased by conduct of the defendant.

228.          I reject Mr Price QC’s submission that the elements of aggravation relied upon by the Claimant needed to be put to the Defendants’ witnesses. On the issues as they arise in this case, the Defendants’ witnesses did not have any relevant evidence to give. The Claimant was not challenged as to the matters he has identified as having added to the hurt and distress he has felt. The only issue, therefore, is whether his reaction is a reasonable one and is capable of aggravating the award. Mr Price QC has not suggested that the Claimant’s evidence as to his feelings about the way in which the proceedings have been conducted by the Defendants, including at trial, were unreasonable.

229.          There is a danger of this issue becoming disproportionate to its overall importance. Given the undoubted seriousness of the libel and the extent of publication, the impact of the element of aggravation on the sum I shall award in damages will be relatively small. As a matter of principle, however, I am satisfied that the Claimant is entitled to have the award of damages reflect the following elements of aggravation. First, I am satisfied that the Claimant is justified in feeling that there has been an element of high-handedness in the Defendants’ treatment of him. Specifically, the delay in withdrawal of the defence of truth which has understandably upset the Claimant. I can also understand the Claimant’s complaint about feeling like a pawn in a game. For example, looked at from the Claimant’s perspective, it is not difficult to see why the letter of 15 March 2017, explaining the Defendants’ reasons why they were not withdrawing the defence of truth, upset him and contributed to this feeling. It relegated the matter of most importance to the Claimant - the truth or falsity of the allegations - to a point of insignificance that did not justify any further discussion or costs. Equally, I have no difficulty in accepting as genuine the Claimant’s feelings at hearing those parts of Mr Gore’s evidence during cross-examination dealing with the Defendants’ response to Mostyn J’s judgment. The Claimant is justified in feeling that there has been a significant element of stubbornness and intransigence in the Defendants’ approach to him in the litigation. He has been thwarted in his efforts to obtain the vindication that he has ultimately been successful in achieving. This is rightly to be taken into account - even if the impact is limited - in the proper assessment of the award of damages.

230.          I should state clearly, a defendant is perfectly entitled to defend litigation in all proper ways available to it. No defendant will be ‘punished’ for the manner in which it legitimately defends a civil claim. However, in defamation claims, a defendant must have an eye to the impact that this may have on a claimant if, ultimately, any question of damages arises. It is clearly established that the Court will take into account the impact on the claimant’s feelings when assessing the sum to be awarded in damages. This is legitimate compensation, not impermissible punishment.

231.          Where a defendant is advancing a bona fide defence to the claim, the failure to apologise or publicly to acknowledge the falsity of the allegations may not be an aggravating factor, but it depends upon the circumstances. Here, the refusal to acknowledge the falsity of the allegations following the decision of Mostyn J (a fortiori after the Court of Appeal had dismissed the appeal against his decision) is a matter that has understandably upset and frustrated the Claimant. Upon withdrawing their truth defences, it would have been perfectly possible for the Defendants to maintain their public interest defences whilst at the same time publicly acknowledging the falsity of the claims. Undoubtedly, a failure to acknowledge the falsity of seriously defamatory allegations and/or the failure to apologise deprives a defendant of what would otherwise be significant mitigation. It also means that the element of vindication can only be provided by the award of damages and the Court’s judgment.

232.          I will make separate awards in respect of each Defendant, but I will reduce each award from the sum that would otherwise have been appropriate had either defendant been sued alone to ensure that the overall award is proportionate.

233.          Taking all these matters into account, I will award the Claimant £50,000 against the First Defendant and £70,000 against the Second Defendant. The difference in the award between the two Defendants principally reflects the greater extent of publication for which the Second Defendant was responsible.

234.          Following receipt of the draft judgment, the Claimant asked me to apportion the damages awarded against the First Defendant as between the publication (in print and online) in The Independent and the publication in the i newspaper. This was because separate claims had been issued in respect of these two articles. The First Defendant indicated that it was content for this to be done. I will do so, calculated on the extent of the respective publications (as the meanings the articles bear are the same - see [13(1)] above). I therefore apportion the sum of £11,500 in respect of the publication of The Independent article (in print and online) and £38,500 in respect of the publication of the i article. I should make clear that the figure of £11,500 is an arithmetical apportionment of a sum that already itself reflects the award against the Second Defendant and the sum recovered by the Claimant in respect of the Huffington Post article. Had proceedings been brought solely in relation to the article published in The Independent, the assessment of damages would have led to a significantly greater award.

237.          As is usually the position, the issue of the terms of any injunction is better dealt with once the parties have considered the Court’s judgment. Indeed, when they have done so, it is often the case that agreement is reached as to the terms of an undertaking to be given to the Court regarding further publication. Nevertheless, I should state my decision on the issues of principle raised by Mr Price QC.

238.          On the evidence, the Claimant has established that, unless an injunction is granted, the Defendants will continue to publish the articles. I have rejected the only defence advanced by the Defendants to defend the continuing online publication of the articles. Prima facie, therefore, the Claimant is entitled to ask the Court to impose an injunction. Even if it is correct that there is “widespread reporting” of the same or similar allegations (and Mr Price QC did not take me to any of the 45 reports included in the trial bundles said to demonstrate this, referring to them only in a footnote), that would not be determinative of whether the Court should grant an injunction, following trial, against these Defendants. It may be that a responsible publisher, reflecting upon this judgment and that of Mostyn J, might well conclude that it should consider whether it was appropriate to continue publishing an article that made similar allegations against the Claimant.

239.          The decision whether to grant an injunction is discretionary, but I consider that the factors weigh heavily in favour of granting an injunction. It is the natural remedy that flows from the Court’s decision, and, in the absence of a satisfactory undertaking, it is necessary to prevent further publication. The terms of any injunction can be tailored to ensure that they are proportionate. The argument that the terms of the injunction should not extend to a Chase level 2/3 variation of the meanings found in respect of the original publications is tenable. However, against that, the Defendants have never sought to raise a truth defence to a Chase level 2 meaning in respect of the articles as published since amendment following the Mostyn J judgment. Arguably, if they were going to do so, they should have done it in the context of these proceedings. In turn, the Defendants have argued that it was for the Claimant to bring a further claim in respect of the amended articles either by fresh action or by amendment to the existing claim (see [192] above).

244.          I am satisfied that this is an appropriate case in which to make an order under s.12. Although it is over 7 years since the original publication of the articles, the continued publication since then means that there remains a realistic basis on which to conclude that the published summary will come to the attention of at least some of those who read the original libel and others who may have learned about the allegation via the ‘grapevine’ effect. Neither Defendant has already published a retraction or apology. For the reasons I have explained, the substantive amendments that have been made to the articles since original publication have not adequately drawn the sting of the allegations. In short, there is a real purpose to be served by making an order under s.12.

Appendix 1: The articles complained of, as originally published

(A) The Independent Article

Family of Afsana Lachaux claim UK is unwilling to help for fear of risking jet deal.

[1]     The family of a British woman trapped in the United Arab Emirates and facing charges of kidnapping her young son have accused the UK authorities of abandoning her.

[2]     Afsana Lachaux, 46, from Poplar, east London, was a British civil servant when she met a wealthy French currency dealer who she married in 2010. The couple moved to Dubai where she gave birth to their son, Louis.

[3]     Four months later, the family claim, her husband became violent. They also claim he hid Louis’s French passport, and refused to allow him to be registered as a British citizen. Fearing for her own safety, they say, Ms Lachaux escaped, taking Louis with her.

[4]     She tried to return to the UK, but her husband secured a travel ban from a Dubai court and requested that her passport be confiscated. He also initiated divorce proceedings and won custody of Louis.

[5]     Mrs Lachaux turned to the UK consulate for help. At first, says her son Rabbhi Yahiya, 26, officials referred her to a refuge for victims of domestic violence. But, he added, they didn’t realise the refuge was legally bound to notify her husband once she checked in.

[6]     Mrs Lachaux was forced on the run again. She again contacted the consulate and was advised to go to the police station to face charges of libel her ex-husband had brought.

[7]     There she was physically assaulted by a police officer, her son claims, and Louis was denied food and water.

[8]     Then in October, when his mother was meeting a friend, her ex-husband snatched Louis from her arms. She has not seen him since.

[9]     Ms Lachaux’s ex-husband filed a further case against her for kidnapping, and if found guilty, she could face several years in prison.

[10]   Mr Yahiya says he has written several letters to the Foreign Office to no avail. ‘As a family, we are disgusted with the way they have handled my mother’s case,’ he said.

[11]   In the past year, Prime Minister David Cameron and Foreign Secretary William Hague, have made official trips to Dubai in a bid to secure a lucrative sale of Eurofighter Typhoon military jets.

[12]   ‘Most of our calls were never returned. They don’t want to jeopardise the sale,’ claimed Mr Yahiya.

[13]   Rori Donaghy, director of Emirates Centre for Human Rights, added: ‘The British government have failed to support Afsana, because they were seduced by the deal.’ Meanwhile Nick McGeehan, Middle East Director for Human Rights Watch, said the ‘UAE’s laws discriminate against women’, meaning ‘Mrs Lachaux cannot be guaranteed a fair trial.’

[14]   Mrs Lachaux’s MP, Labour’s Jim Fitzpatrick, told The Independent: ‘The way Afsana Lachaux has been treated is appalling. As a woman in a Muslim country the authorities there have taken the word of the man as true.’

[15]   A Foreign Office spokesperson said: ‘We cannot interfere in the judicial process of another country. We will continue to provide consular assistance to the family’.

(B) The Standard Article

Tomorrow a London mother goes to court accused of abducting her own three-year-old. Her older son tells Susannah Butter how escaping a troubled marriage left Afsana Lachaux facing jail abroad after her ex-husband ‘snatched’ their child

[1]     Tomorrow, in a Dubai courtroom, more than 4,000 miles away from her home, a jury will decide if Afsana Lachaux is guilty of kidnapping her three-year-old son Louis from her ex-husband.

[2]     The 46-year-old former civil servant from Poplar may never see her child again. Her older son from a previous marriage, Rabbhi Yahiya, 26, says: ‘Unless the British Government intervenes, my mum risks going to jail for something she didn’t do, after which she will be deported and lose her son. All she did was leave an abuser.’

[3]     Despite being accused of kidnapping, Lachaux hasn’t seen her three-year-old since October last year, when her husband allegedly took him out of his pushchair in the street. The case has cost the family a ‘debilitating’£70,000 in legal fees and left ‘an overriding feeling of helplessness’.

[4]     The exact charges relate to Lachaux not bringing her son to a custody visit with her ex‑husband, who cannot be named for legal reasons, in March 2012. But Yahiya, who works for the British Council, gives his mother’s version of events. ‘She didn’t turn up because on previous visits she was assaulted by him in public. She told the police but they didn’t want to hear it.’ The allegations of domestic violence have not been tested in any court, and her ex-husband has denied them.

[5]     Lachaux is originally Bangladeshi but grew up in east London, where she married and brought up Rabbhi, 26, and his 23-year-old brother. ‘She rose up the civil service from local government and worked in regeneration. She was a successful, sociable, headstrong woman. I am proud of her. We liked going to Greenwich as a family.’ She and Yahiya’s father are divorced.

[6]     In 2009 Lachaux told her children she was seeing a French man, a comfortably off avionics engineer based in Dubai. Yahiya says: ‘I never asked where they met. We were glad my mum had found someone and was happy.’

[7]     They married in summer 2009 in London and moved to Dubai in February 2010. ‘It was a big adventure - the first time my mum had lived abroad. They were in love and planning to have a child so she was excited. Now I remember that he seemed reserved and only his brother and parents came to the wedding but at the time I didn’t question it. It was a happy time.’

[8]     Louis was born two months premature, in April 2010, and shortly afterwards Yahiya stopped hearing from his mother as frequently. ‘We thought it was odd that she hadn’t brought Louis to see us. In November we Skyped.’

[9]     He recounts what he heard that day. ‘She told me he had beaten her and showed me the bruises. She was crying, which I’d never seen her do before. She told me that since Louis was born her husband had become controlling. He refused to let her register Louis as a British citizen, got him a French passport and hid it with his birth certificate outside the house. The impression I got was that he didn’t want her to take Louis anywhere without him. A woman can’t work in the United Arab Emirates without her husband’s permission so she was confined to the house. Eventually she told the police but they just said, “Go home to your husband”. It’s seen as the man’s right to chastise his spouse there.’

[10]   A year later, Yahiya persuaded her to escape. ‘I went to Dubai in April 2011. We fled but couldn’t leave the country because we didn’t have Louis’s passport.’ They stayed in hotels and rented apartments but, according to Yahiya, things got worse. ‘In June 2011 she was taken to Bur Dubai police station for ‘absconding’. She and Louis were put in the same cell where a British man had allegedly been beaten to death by guards a month earlier.’

[11]   Yahiya says she was locked up for four hours in 40-degree heat and denied food and water. ‘While she was holding her one-year-old and asking why she was there, a prison guard pushed her in the face.’ Although Lachaux had never been charged with any offences, her passport was confiscated by Dubai police.

[12]   Her husband obtained visiting rights to see Louis, so every week Lachaux would meet him in the park. According to what his mother told Yahiya: ‘Once he tried to snatch Louis and it badly bruised his head,’ Yahiya alleges. ‘She went to the police but they said they didn’t care if she lived or died.’

[13]   She went to the Dubai Foundation for Women and Children in February 2012. ‘It’s the only refuge in Dubai and they had a legal obligation to tell her husband where she was. She and Louis shared bunks with illegally trafficked sex workers.’

[14]   In March 2012 she went into hiding and stopped the visits - it is for this that she is being prosecuted. ‘I told her not to go any more. I was concerned for her.’ Yahiya and his brother received an email from her husband, warning that if they went to Dubai he would report them for aiding a kidnap. She lived on the sofas of friends and ‘in squalid accommodation, living off noodles’ with Louis who, his brother says, is ‘sharp and funny’.

[15]   And then, on October 29 last year, her husband tracked her down. ‘Dubai’s a small place. She told me he took Louis - it happened in an instant.’ Lachaux hasn’t seen her son since.

[16]   When she called the British Embassy to report the incident they told her that in August 2012 her husband had obtained a divorce in a Sharia court and been given custody. ‘My mum didn’t even know. Men can do that in Dubai. She was denied custody on claims that Louis had eczema, making her an “unfit mother”.’ She claimed to Yahiya that she did not know the four witnesses who testified against her.

[17]   Since this began, Lachaux’s family have been trying to help but the Dubai justice system has proved impenetrable. ‘For three years I have been in touch with the Dubai Embassy, the British Embassy there, William Hague and the Middle East ministers. I’ve told them about every incident but they say they can’t intervene in the judicial process of another country. Our MP Jim Fitzpatrick has been supportive, and asked David Cameron to raise my mum’s case when he’s been there. I’ve read about an Austrian woman and a Norwegian woman being raped there, and both their governments intervened. Why can’t ours do anything to help my mum? Do you understand the frustration?’

[18]   The Standard contacted the Dubai police for a response, and was referred to the British Consulate in the UAE. The FCO spokesman said: ‘Consular staff have been providing assistance to Mrs Lachaux since 2011 including attending court hearings with her. Consular officials have approached the UAE authorities about this case and we will continue to work closely with them. However we cannot interfere in the judicial process of another country. We must respect their systems just as we expect them to respect the UK’s legal processes.’

[19]   Meanwhile, Yahiya awaits the court case. ‘Every time I speak to my mum I try to keep her spirits up. She’s still strong but her face has changed. She’s so skinny and on tenterhooks the whole time. My family and I would like the British authorities to ask the Dubai government to drop her case, overturn the current custody order and return her passport so that she and her son can come home to London’.

[20]   Petition to free Afsana Lachaux at [website addresses given]

Appendix 2 - Extracts from the cross-examination of Mr Gore

Q.        Now, the next milestone is the judgment of Mr Justice Mostyn on 2 March 2017 in the English High Court family proceedings; did you read it when it came out?

A.        I did, yeah.

Q.        Did you accept his findings?

A.        I was -- I was surprised about the findings in some respects.

Q.        That’s not my question: did you accept his findings?

A.        I didn’t accept them on the principle that there seemed to be no discrimination in the use of the local UAE laws. That didn’t seem to me to be the case.

Q.        Will you go, please, to … one paragraph of Mr Justice Mostyn’s judgment, which you read…. Have you got paragraph 122?

A.        Yes. I have got that.

Q.        You’ll see he says:

                        “I revert to the findings sought by the mother set out at para 9 above. As will by now be apparent I reject the majority of the mother’s case. I do not accept that she was a victim of abuse, threats and violence from the father, although I do accept that the relationship was stormy and that in the course of frequent arguments each hurled accusatory insults at the other.”

            Did you accept his finding that she was not a victim of abuse, threats and violence from the father?

A.        Well, I -- I mean -- I mean, that puts me in a difficult position because I want to be respectful of the judgment. But I was -- I was very surprised that that was asserted as clearly as it was. But I’m not sure I agreed with it, but I guess I accept it.

Q.        He conducted a trial according to English fair trial procedures in which both parties were represented by leading counsel and both parties were cross-examined. That’s correct, isn’t it?

A.        Yes.

Q.        That’s how we do things in this country?

A.        Yes, absolutely.

Q.        He says:

                        “I do not accept that she was fearful of him.”

            Do you accept that? Did you accept that finding?

A.        Well, again, I was surprised by it, but yeah, I accept it.

Q.        Did you think you knew better than he?

A.        No, that’s not what I’m saying at all.

Q.        He says:

                        “I do not accept that her complaints were not investigated or taken seriously by the police and the court. I do not accept that she was mistreated by the police.”

            Do you say you know better than that?

A.        No, I don’t say I know better than that.

Q.        “I emphatically do not accept that she lived in hiding as she was fearful of the father and the authorities.” You don’t know any better than that -- you didn’t know any better than that, did you?

A.        No, that’s not what I’m saying at all.

Q.        “She went underground to prevent the father seeing his child and because she feared she would lose the case brought by him.” Do you accept that? Did you accept that, I should say?

A.        Yes, I mean, I think that’s the case…

Q.        “I do not accept that she was trapped in Dubai as a result of travel bans or confiscation of her passport. After she was found she was able to leave without let or hindrance.” Were you in any position to think you knew better than Mr Justice Mostyn?

A.        No. I accept that once she was able to leave -- sorry, after she had been found and her passport had been returned, that that was technically the case. Whether she felt that way given her desire to be close to Louis I think is a slightly different matter, but yes, okay, I accept that.

Q.        He goes on: “I do not accept that she did not have notice of the divorce proceedings or the opportunity to participate in them. She did participate in them and filed an extensive defence and counterclaim.” Now, he must have had documentation to support that, mustn’t he?

A.        Yes, I mean, I don’t dispute at all that she participated in them up to a point. I think that to what extent she did is clearly a matter of interpretation and certainly towards the end of those proceedings she did not participate in them whatsoever.

Q.        Well, this was not, he had found, because she didn’t have notice of them: “I do not accept that she did not have adequate representation and did not have the means to secure adequate representation. I do not accept that the proceedings were unfair. The ground for divorce used in this case is virtually identical to our most commonly used one (unreasonable behaviour), and the custody laws are best interests based. The mother was not divorced on traditional Islamic grounds and sharia judges did not steal her son.” Now that, as I say, came out on 2 March 2017. Why did you take until 13 December 2017 to remove from the public record in these proceedings the defences of truth?

A.        I think our view was several points. First of all, it appeared to be the case that Afsana Lachaux was planning to appeal the decision of Mr Justice Mostyn; secondly, the IPL/ESL appeal in the serious harm case had yet to be heard I think at the Supreme Court; and given all of that, it seemed to me that our course of action in reporting the outcome of this family hearing, adding addendums to the original articles was the most appropriate course of action and, as you say, we didn’t remove or recant the truth defence until a later date.

Q.        No, no, you stood by the defence, didn’t you, until December 2017 at least so far as Mr Lachaux was concerned? He was still facing that defence for months after Mr Justice Mostyn’s judgment.

A.        Yes, I understand that’s the case, yes.

Q.        You realise, don’t you, and would have realised, would you not, how much hurt and distress that would have caused to him?

A.        I’m sure that he -- perhaps was upset by this. I wouldn’t want to, you know, make assertions as to his feelings or otherwise.

Q.        Well, it would have been perfectly obvious to you at the time, wouldn’t it, that this would have been deeply distressing to him?

A.        The ongoing existence of the truth defence being on the record?

Q.        Yes.

A.        I’m -- I think it’s very hard for me to put myself in his position, but whether a legal document may have remained on the record or not, on the face it, didn’t seem to me to be wildly distressing, but I accept that if that’s his case, then …