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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Al-Koronky & Anor v Time Life Entertainment Group Ltd & Anor [2005] EWHC 1688 (QB) (29 July 2005) URL: https://www.bailii.org/ew/cases/EWHC/QB/2005/1688.html Cite as: [2005] EWHC 1688 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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1. Abdel Mahmoud Al-Koronky 2. Hanan Ibrahim Mohammed |
Claimants |
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- and - |
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1. Time Life Entertainment Group Ltd 2. Damien Lewis |
Defendants |
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Adrienne Page QC and Matthew Nicklin (instructed by Reynolds Porter Chamberlain) for the Defendants
Hearing dates: 7th, 12th, 13th and 26th July 2005
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Crown Copyright ©
Mr Justice Eady :
Introduction
The Claimants' defamatory meanings
i) that the Claimants kept a slave, Mende Nazer, in their London home; and
ii) that the first Claimant made statements in open court which he knew to be false, to the effect that Mende Nazer was the Claimant's au pair and not their slave and that Mende Nazer's story of abduction and slavery in Sudan and then in London was a tissue of lies.
The reference to the "statements in open court" relates to the settlement of the Sunday Telegraph action in June 2002, to which I have referred.
The plea of justification
The Claimants' two submissions on security for costs
Can the case be cut short by expert reports?
The nature of the protection the Defendants now seek
The applicable principles of law
"The court will properly be concerned not to allow the power to order security to be used as an instrument of oppression such as by stifling a genuine claim by an indigent company against a more prosperous company. But it will also be concerned not to be so reluctant to order security that it becomes a weapon whereby the impecunious company can use its inability to pay costs as a means of putting unfair pressure on the more prosperous company".
That encapsulates some of the more important policy considerations that are likely to come into conflict when security for costs is sought. The relevance of the passage is not, or so it seems to me, in any way diminished by the fact that the Claimants in the present case are individuals rather than corporate entities. Nor, since they are of universal application, can those considerations be said to have become outdated by reason of any subsequent legislative developments. The passage in no way enables one to see how, on the facts of any particular case, the conflicting considerations can be resolved, but they are important nonetheless. Nowadays, it is necessary to have regard to the parties' respective rights under Article 6 of the European Convention on Human Rights. Since in this instance both sets of parties' rights are engaged, the exercise becomes one of focussing upon the balancing of those rights and interests and having regard to the familiar tests of necessity and proportionality.
Is the Claimants' second meaning pitched too broadly?
The relevance of the conditional fee agreement
The need to consider whether the claim will be stifled
"Secondly, the court should not restrict its evaluation of the ability of a claimant to provide security to the means of the claimant itself. If the claimant cannot provide the security from its own resources, the court will be likely to consider whether it can reasonably be expected to provide it from third parties such as, in the case of a corporate claimant, shareholders or associated companies or, in the case of an individual claimant, friends and relatives. If the case moves to the stage of considering whether the security should be regarded as being available from third parties, the burden still rests on the claimant. He or it has to show that, realistically, there do not exist third parties who can reasonably be expected to put up security for the defendant's costs".
That is a factor which is potentially of some significance in this case and I shall return to it in due course.
The court should not attempt to determine the merits
Is there "something that may not be bona fide" about the claim?
The possibility of enforcing a judgment in the Sudan
The factors relevant to discretion
"… the rounding up of and dealings with Mende's relatives was allowed to be conducted by those that Mende was accusing of having enslaved her and their family members. This was a fundamental error of judgment on the part of those conducting the action for the Claimants which, the Defendants believe, has led to Mende's relatives being procured to provide, or put their marks or signatures to, evidence that is false and which has probably compromised these witnesses irretrievably and rendered the task of the Court in determining the truth impossible".
The evidence relied upon to undermine the defence of justification
Have the Claimants established that the claim would be stifled?
The monetary value of the claim
"A claimant brings an action like this not only to recover damages but also to vindicate his reputation, but that consideration cannot go too far to bridge the gulf between the value of this action to the Claimant and its value to the lawyers instructed in the case. As I have said, something seems to have gone seriously wrong".
That is surely a relevant factor to bear in mind in weighing up the respective advantages and disadvantages to the parties in libel litigation of an order for security for costs. The costs vastly outweigh in this case any potential gain to the Claimants measured in purely financial terms. Moreover, so far as possible vindication is concerned, I need to bear in mind that the court is concerned with the publication of the offending words in this jurisdiction and therefore with what is required to restore reputation in England and Wales. The protection of the Claimants' reputations in Sudan is not a factor which enters into this equation.
The criticism of the Defendants' motives
"In commercial terms, this is a no-win situation for the Defendants. This is an extreme example of litigation that would represent a massive disincentive to any commercial publisher to defend to trial. If the story is true, and the Defendants believe it to be, a commercial decision not to further defend, to withdraw the book and to allow the Claimants, their families and the government of the Sudan to trumpet victory over Mende Nazer would be a very serious blow to freedom of expression. If the price of fighting to prove the truth is too high, suppression of the truth will prevail".
I allow of course for an element of rhetoric in that passage, but it does nevertheless highlight serious concerns which are relevant factors for the court to take into account. The court needs to be wary of the possibility of libel claimants (and perhaps especially claimants who are beyond the reach of enforcement and who have the benefit of a CFA arrangement) using its procedures in such a way as to bring intolerable pressures to bear on defendants in order to achieve vindication which may be hollow or misleading in the absence of full enquiry and the rigorous testing of the case in open court. I cannot, of course, come to any definitive conclusions as to the Claimants' motivation, but the risk is one factor to be weighed in the scales very carefully.
The new material to undermine the defence of justification
Have the Defendants brought the claim upon themselves?
My overall conclusion