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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Lachaux v Independent Print Ltd  EWHC 2242 (QB) (30 July 2015)
Cite as:  2 WLR 437,  4 All ER 140,  EMLR 28,  QB 402,  WLR(D) 345,  EWHC 2242 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Bruno Lachaux
|- and -
|Independent Print Limited
|Evening Standard Limited
|AOL (UK) Limited
David Price QC (of David Price Solicitors & Advocates) for Independent Print Ltd. & Evening Standard Ltd.
Manuel Barca QC and Hannah Ready (instructed by Lewis Silkin) for AOL
Hearing dates: 20-21 July 2015
Crown Copyright ©
Mr Justice Warby :
i) Reference. In the claims against IPL and ESL there are issues as to whether, or the extent to which, the words complained of referred or were understood to refer to the claimant.
ii) Meaning. In three of the claims – the two against AOL and the second claim against IPL – there are some issues about the natural and ordinary meaning of the words complained of.
iii) Serious harm. In relation to all five claims, I have to decide whether the publication of the words complained of satisfies what I shall call 'the serious harm requirement' laid down by s 1(1) Defamation Act 2013 ('the 2013 Act'): that the publication has caused or is likely to cause serious harm to the reputation of the claimant.
iv) Abuse of process. In the AOL claims I have to decide whether, pursuant to the principles established in Jameel v Dow Jones  EWCA Civ 75,  1 QB 946 ('Jameel') the pursuit of the claim constitutes an abuse of the court's process on one or more of four grounds specified in the order of Nicola Davies J.
i) This is not a dispute about jurisdiction. As their corporate names suggest, each of the defendants is a company registered in England and Wales. There is no dispute that this court has, and is bound to exercise, jurisdiction over these claims against these defendants, if the claims cross the threshold of seriousness set by English law.
ii) I am not deciding any issue about the truth or falsity of what was stated in the articles complained of. This is an important feature of a preliminary issue trial of this kind. In one of the claims against IPL, and in the claim against ESL, Defences have been served asserting that the articles were true. As Ms Page has been at pains to make clear, however, the claimant emphatically denies that there was any truth in any of the articles, so far as his conduct is concerned. It is not my task to decide which side is right about this.
iii) Nor is this judgment concerned with whether the defence of public interest, on which IPL and ESL also rely, may be available to them, or to AOL. Nor do I have to decide the merits of any other affirmative defence.
C. RELEVANT LEGAL PRINCIPLES
(i) The common law
(1) "It is an essential element of the cause of action for defamation that the words complained of should be published 'of the [claimant]'": Knupffer v London Express  AC 116, 120. This does not mean the claimant must be named. The question is whether reasonable people would understand the words to refer to the claimant:"The test of whether words that do not specifically name the [claimant] refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the claimant to believe that he was the person referred to?"David Syme v Canavan (1918) 25 CLR 234, 238 (Isaacs J).
(2) This is an objective test. If the words would be so understood by such people it is not necessary for the claimant to prove that there were in fact such people, who read the offending words; so an individual defamed by name in Cornwall has a cause of action even if he was unknown in that county at the time of publication: see Gatley on Libel & Slander 12th ed para 7.3; Multigroup Bulgaria Ltd v Oxford Analytica Ltd  EMLR 28  (Eady J) cited with approval in Jameel at .To this extent, I do not accept Mr Price's submission for IPL and ESL that it is an essential element of this claim for the claimant to prove that at least one person understood the words complained of to refer to him. That is not an essential element of the cause of action at common law. Whether such proof is necessary to satisfy the serious harm requirement, or to overcome a Jameel application, or both, is a separate matter.
(3) Although in practice any newspaper article, broadcast, blog or other publication may be understood in different ways by different ordinary people, it is a rule of defamation law ('the single meaning rule') that, as in the construction of contracts or statutes, a given set of words is to be treated as having only one meaning: Charleston v News Group Newspapers Ltd  2 AC 65 [71-72].
(4) The legal principles by which that single meaning is to be identified can be taken from the summary given by Sir Anthony Clarke MR in Jeynes v News Magazine Ltd  EWCA Civ 130 :"(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the product of some strained, or forced or utterly unreasonable interpretation…' … (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory way."
(5) A meaning is defamatory of the claimant if it '[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency to do so': Thornton v Telegraph Media Group Ltd  EWHC 1414 (QB),  1 WLR 1985,  (Tugendhat J). This also is an objective test. Although the word 'affects' might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence. The 'people' envisaged for the purposes of this test are ordinary reasonable readers.
(6) On the issue of defamatory meaning it is firmly established that (leaving to one side any complications introduced by true innuendo meanings, of which there are none in the present case) no evidence is admissible other than the words or other statement complained of. See, e.g., Slim v Daily Telegraph  2 QB 157, 173 (Diplock LJ); Charleston 70 (Lord Bridge).
(7) If a statement published in writing or other permanent form is held to be defamatory by these tests the cause of action for libel is complete, and some harm to reputation is presumed. Damages for injury to reputation and feelings are recoverable. Evidence is admissible as to the extent of such damage but no such evidence is necessary.
(8) Some spoken defamatory words are actionable without proof of actual damage (or 'per se'). An example is a statement which imputes the commission of an imprisonable crime. The common law categories of slander actionable per se have been modified and amplified by statute: s 2, Defamation Act 1952. In cases of slander actionable per se the position is the same as in libel: damage is presumed and the cause of action is complete at the time of publication. In other cases of slander, it is necessary to prove special damage in the form of financial loss. If the slander is of a kind that requires proof of special damage the cause of action is not complete unless and until special damage is suffered.
(9) In the class of case - of which the present is an example - where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant's reputation. This is a brief and deliberately general summary of what I shall call 'the rule in Dingle': Associated Newspapers Ltd v Dingle  AC 371.
(10) It is not legitimate to prove in mitigation of damages specific acts ofmisconduct: 'the rule in Scott v Sampson' (1882) QBD 491.
(ii) The impact of statute: the Human Rights Act
"a. The Claimant does not have a sufficient connection to or reputation in this jurisdiction to be able to establish a real and substantial tort here;
b. The words complained of were not published to a sufficient number of persons in this jurisdiction who understood them to refer to the Claimant for him to be able to establish a real and substantial tort here;
c. The claim cannot serve the legitimate [purpose] of protecting or vindicating the Claimant's reputation in this jurisdiction; and/or
d. There is no realistic prospect of a final trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense and the wider public in terms of court resources."
i) In Steedman Hale LJ observed at  that the claimants had not put in evidence or offered explanations for their delay in complaining about the broadcasts which they said were libellous, saying that "This makes it difficult to conclude that vindication was uppermost in their minds at any time." Mr Barca invites me to conclude in this case that vindication was not "uppermost" in the mind of the claimant.
ii) Mr Barca relies on Sharp LJ's conclusion in Bewry at  that the claimant's claim "falls squarely within the Jameel jurisdiction", in part because "it cannot be said that the claim is brought to vindicate his reputation". He links this last passage to observations earlier in Sharp LJ's judgment at [25-26],  and , in which she upheld "the defendant's principal contention on this appeal … that there was serious and unexplained delay on the part of the claimant…"
(iii) The impact of statute: the serious harm requirement
"1.— Serious harm (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."
What is required to prove serious harm?
i) 'The purpose of s 1(1) was to harden up existing law' relating to the exclusion of trivial defamation claims through a 'threshold of seriousness';
ii) this purpose was achieved by putting into statute 'an adjusted definition of the term "defamatory", the purpose and effect of which was to upgrade the harmful effect required to surmount the threshold of seriousness from 'substantial' … to "serious"';
iii) the existing law was to be and was otherwise undisturbed. Thus, for instance it is argued, the law as to what evidence is admissible for the purposes of deciding whether a statement is defamatory remains as it was: only the statement complained of is admissible.
"11. The section builds on the consideration given by the courts in a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd in which a decision of the House of Lords in Sim v Stretch was identified as authority for the existence of a "threshold of seriousness" in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v Dow Jones & Co it was established that there needs to be a real and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant's reputation can be brought".
Other publications and the rule in Dingle
(1) 'The relevant allegations have been made in many media and other publications, a number of which have a greater print and/or online readership and/or prominence than the Independent and/or named the Claimant and/or were published prior to the Article.'
(2) 'Afsana's allegations will remain accessible on the internet irrespective of the continued publication of the Article'.
(3) 'Any consideration of such coverage will disclose the fact that in 2002 the Phoenix Municipal Court in the State of Arizona granted an injunction against the Claimant prohibiting him from stalking or otherwise harassing a woman who had been in a relationship with him and an associate of hers ("the Harassment Injunction").'
"5. Now comes the difficult point which I may state in this way. The "Daily Mail" are only responsible for the damage done to the plaintiff's reputation by the circulation of the libel in their own newspaper. They are not responsible for the damage done to the plaintiff's reputation by the report of the select committee or by the publication of extracts from it in other newspapers. If the judge isolated the damage for which the "Daily Mail" were responsible from the damage for which they were not responsible, he would have been quite right, see Harrison v. Pearce. But it is said that he did not isolate the damage. He reduced the damages because the plaintiff's reputation had already been tarnished by reason of the publication of the report of the select committee and of the privileged extracts from it in the "Daily Mail" and other newspapers. I think he did do this and I think he was wrong in so doing."
"At one time in our law it was permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel. That has long since ceased to be allowed, and for a good reason. … It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulation without reference to the damage done by others. They may not even refer to other newspapers in mitigation of damages. Such has been the law ever since 1829 (Saunders v. Mills), and it cannot be called in question now. It is but a particular instance of the general rule which excludes rumours or reports to the same effect as the libel, see Scott v. Sampson; Speidel v Plato Films Ltd.: and it has been implicitly recognised by the legislature in the statutes of 1888 and 1952 which have created some limited exceptions to it, not in question here. "
"In order to get round this law about reports and rumours, Mr. Faulks said that they had got to the stage here where Mr. Dingle's current reputation was tarnished: and that evidence of tarnished reputation was admissible in evidence. But how are you to distinguish between reports and rumours which are inadmissible and tarnished reputation which is admitted? only in this way: In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him. They are in a position to judge his worth. If they consider he has a bad reputation, they are very likely right, and he has nothing much to lose. If it is a settled reputation which has been accumulated over a period by a sequence of misdeeds, they will know of it. If it is a reputation which has been destroyed at one blow by a single conviction, they will know of it too. Either way, if you call those who know him well, you are likely to get at the truth. … "
"Whatever may be the qualifications or requirements as to evidence led on the issue of reputation by way of mitigation of damages for libel, I do not believe that it has ever yet been regarded as permissible to base such evidence on statements made by other persons about the same incident or subject as is embraced by the libel itself. In my opinion it would be directly contrary to principle to allow such an introduction."
"A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. If they could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication."
"It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law.
I believe that in saying this I am doing no more than recognising the rule derived from Saunders v. Mills.8 This case was decided in 1829 and it has enjoyed a long and respected reign in the textbooks on libel."
"I do not think it necessary to say anything on that point because, whatever this recent decision must be taken as laying down, I am confident that none of the members of the House contemplated that the evidence of reputation that they were speaking of could possibly embrace evidence of the use of repetition of the same defamatory words by other persons dealing contemporaneously with the same incident or subject. When one speaks of a plaintiff's "actual" reputation or "current" reputation (to quote my own adjective) one means his reputation as accumulated from one source or another over the period of time that precedes the occasion of the libel that is in suit."
"If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes."
D. REFERENCE AND DEFAMATORY MEANING
|20 January 2014||HuffingtonPost||'British victim of domestic abuse faces prison in UAE'.|
|24 January 2014||Independent (online)||'British mother Afsana Lachaux faces jail in Dubai after husband claims she kidnapped their son'|
|25 January 2014||Independent (print)||'British mother faces jail in Dubai after husband claims she kidnapped their son'|
|'i' (print only)||'"Kidnap" mother abandoned by UK, family say'|
|6 February 2014||HuffingtonPost||'Distracted by a Big, Shiny Arms Deal - David Cameron Has Abandoned a British Citizen, Please Help'|
|10 February 2014||Evening Standard
(print and online)
|"Dubai's a small place - he took Louis in an instant"|
(i) The first Post Article
" When Afsana Lachaux left her job as a senior civil servant four years ago in London it was as a newly wed to start afresh in Dubai, but she could never have imagined how that dream would swiftly turn into a nightmare. A victim of domestic abuse, Afsana took her baby and bravely left her partner three years ago, but has been trapped in Dubai ever since as her ex-husband has exacted a prolonged campaign of intimidation and harassment against her.
 Now, on 21 January, she will appear in court accused of kidnapping her own child, as she suffers the consequences of the Emirati legal system that affords little protection for victims of domestic violence.
 Afsana Lachaux, a 46-year-old British citizen of Bangladeshi origin, had her passport taken from her in June 2011 after her abusive ex-husband used his influence with Emirati authorities to obtain an indefinite travel ban on her and her three-year-old son. Since then she has been forced to live in abject poverty, reliant on support from her two adult sons working in London, and seen her health deteriorate swiftly.
 The ex-husband, a wealthy foreign exchange dealer, told her that he would 'destroy her' at a divorce hearing and has successfully used the Emirati legal system to do just that. At a trial held in her absence, he was granted sole custody of their child after a judge ruled she was an unfit mother due to neglect on the basis that her child has eczema. In October 2013, after more than a year of living in hiding, Afsana's ex-husband snatched their child after finding out where they were living."
i) while he was still married to and living with his ex-wife Afsana, the Claimant subjected her to physical abuse which she bravely left him to escape, taking their baby son with her;
ii) the Claimant falsely accused Afsana of kidnapping their son, a false charge which had unjustly left her facing jail in the UAE, when the truth was (as he knew) that she had justifiably taken him away with her to escape his abuse;
iii) the Claimant improperly threatened Afsana at a divorce hearing, telling her that he would 'destroy' her; and
iv) having tracked down Afsana after more than a year of living in hiding, the Claimant snatched their son back from her without justification and with callous disregard for his welfare.
(ii) The Independent article
i) became violent towards his ex-wife Afsana soon after the birth of their son, which caused her, fearing for her safety, to escape and go on the run with the child;
ii) having tracked Afsana down, callously and without justification snatched their son back from his mother's arms (and has never returned him);
iii) falsely accused Afsana of kidnapping their son, a false charge which if upheld could result in her, quite unfairly and wrongly, spending several years in a Dubai jail;
iv) was content to use Emirati law and its law enforcement system, which discriminate against women, in order to deprive Afsana of custody of and access to their son Louis;
v) hid the child's French passport and refused to allow him to be registered as a British citizen, as Afsana wished;
vi) was violent, abusive and controlling and caused Afsana to fear for her own safety;
vii) caused her passport to be confiscated thus for her to be trapped in the UAE;
viii) obtained custody on a false basis and also initiated a prosecution of Afsana in the UAE, which was founded upon a false allegation of abduction, and which gave rise to the risk of a lengthy prison sentence there.
(iii) The i article
(iv) The second Post Article
…While this botched deal was playing out, a British citizen named Afsana Lachaux was in serious trouble. She still is.
Afsana is a Bangladeshi-born, British-raised woman – a lifelong civil servant (both local and national level), a mother to two graduate sons, who are now working in London. She had left for Dubai to start a new life with her French husband in 2010.
Sadly, shortly after arriving there, her spouse became violent and abusive. Terrified for her own life, she fled their Dubai apartment with their new baby son, Louis, just a few months old…".
(v) The Evening Standard article
i) became violent and abusive towards his ex-wife Afsana within months of marrying her, beating her and leaving her with bruises on at least one occasion;
ii) assaulted Afsana in public on custody visits relating to their young son;
iii) attempted to snatch their son on one custody visit, leaving him with a badly bruised head;
iv) callously and without justification snatched their son from out of his pushchair in the street (and has never returned him);
v) subjected Afsana to the injustice of facing jail in Dubai for "abducting" her own child, when in truth she had only fled with him to escape the Claimant's violent abuse;
vi) having chosen to obtain a divorce in a Sharia court, also used Emirati law and its law enforcement system, which discriminate against women, in order to deprive Afsana of custody of and access to their son Louis;
vii) hid the child's French passport and refused to allow him to be registered as a British citizen, as Afsana wished;
viii) was violent, abusive and controlling and caused Afsana to fear for her own safety;
ix) caused her passport to be confiscated thus for her to be trapped in the UAE;
x) threatened to report Rabbhi and Shabbir Yahiya to the police for aiding a kidnap if they came to Dubai;
xi) caused Afsana to go on the run with Louis;
xii) obtained custody on a false basis and also initiated a prosecution of Afsana in the UAE, which was founded upon a false allegation of abduction, and which gave rise to the risk of a lengthy prison sentence there.
E. THE SERIOUS HARM ISSUE
(i) The facts
" Rori Donaghy
Director at the Emirates Centre for Human Rights
British Victim on Domestic Abuse Faces Prison in the UAE
Posted 20/01/2014 16.58 GMT. Updated 29/09/2014 16.59 BST
On 20 January this year, the HuffPost UK published a blogPost by Rori Donaghy (Director at the Emirates Centre for Human Rights) headed "British Victim of Domestic Abuse faces Prison in the UAE". ThePost recorded the travails experienced under the Emirati legal system by Afsana Lachaux, a British citizen of Bangladeshi origin, in connection with a bitter custody battle with the ex-husband over their three year old son.
The HuffPost UK has received a complaint about thisPost from Afsana's ex-husband, and we accept that thePost might fairly be criticised for conveying a one-sided impression of the couple's dispute; it could have been made clearer that Afsana's allegations of domestic abuse were denied by her ex husband.
We are happy to put that right, and apologise to him for any embarrassment caused.
Follow Rori Donaghy on Twitter: www.twitter.com/roridonaghy86
Issues in dispute
i) Whether vindication has been 'uppermost' in the claimant's mind in pursuing these proceedings.
ii) The nature and extent of the claimant's connections with and reputation in this jurisdiction.
iii) The extent to which readers of the words complained of are likely as a matter of fact, to have identified the claimant as the person referred to in the articles as Afsana's husband.
iv) The extent to which the agreed figures for readership and unique users are to be treated as augmented by viral or 'grapevine' publication via social media and otherwise.
v) The impact of thePost's cessation of publication and the Apology.
Discussion and findings
i) The claimant took prompt steps to seek legal advice. I note, incidentally, the order in which he listed the five articles of most concern to him when he emailed Taylor Hampton on 3 February 2014. The Post and Independent head the list, above the first Daily Mail article, which was published earlier than the Independent article.
ii) The unchallenged evidence is that by 11 February 2014 the claimant had obtained Arabic translations of the Post and Independent articles, as well as the Daily Mail pieces, which he produced to the judge at a hearing in Dubai on 11 February 2014 in the child abduction case.
iii) Although the initial letters of complaint took time, they were not in my judgment delayed because the claimant was not concerned to vindicate his reputation. The principal reasons were that the claimant's lawyers needed to establish the facts, review the merits, and secure an offer of ATE cover before deciding whether to offer to enter into CFAs with him.a) The suggestion advanced to Nicol J on behalf of AOL, that the claimant was seeking to use these proceedings for the collateral purpose of harassing his ex-wife, was in my judgment inherently improbable. For one thing, he could have sued her personally. I have been shown no evidence that I consider supportive of the inference that in pursuing these defendants the claimant was in reality targeting Afsana. Mr Barca's second thoughts on this were the better ones. In the absence of any identified purpose other than vindication, however his invitation to infer that this was 'not uppermost' in the claimant's mind lacks persuasive force.b) There is in any event a better explanation. The claimant's first witness statement explains, and I accept, that he 'wanted to get on with my complaints against the Post, Independent and Evening Standard as soon as possible, and indeed was agitated when this did not happen as quickly as I would have liked'. He could not fund the claims from his own pocket, or run them himself, and his lawyers had to get to grips with a complex history which included claims and counterclaims between him and Afsana.c) This is corroborated by the letters before action in respect of all three claims. These gave details of the CFAs and ATE insurance and said this: 'Finally, you ought to be aware that since Mr Lachaux first consulted us in relation to this matter earlier this year, we have spent a considerable amount of time not only putting together the funding arrangements mentioned above, but also establishing the facts, collating evidence, and ensuring that our client's case is sound.'
i) The claimant visited England on at least the following occasions: 2005, when he attended a three day training course in London with Panasonic; May 2009, when he visited his 'significant other', Afsana, for a period of some days (email of 26 May to Phil Newton of Touch); November 2009 (he produced an old tube ticket to prove this); the end of January and February 2010 (to meet Afsana's family and for the wedding); August 2010 (for the wedding reception).
ii) The claimant personally knows and/or is known to the following people who are residents of England and Wales or who may have read or may read the words complained of here (and/or in some cases in Dubai):-a) members of Afsana's family;b) friends and acquaintances of Afsana, personal and professional; I accept the claimant's evidence that Afsana has a wide circle of friends and connections, rather than the narrow one which she maintains. He explained convincingly that the reason why the guest list for the wedding reception was quite restricted was that many people would have had to come a very long way;c) relatives of the claimant: he has two cousins who live here, named Eric and Remi Vaizelle; Remi has a wife and family; I accept the claimant's evidence about these relatives, which was that he knows them and spoke to Afsana of both;d) personal friends and acquaintances made by the claimant himself who are resident here; the claimant's statement names by way of example ten of these, besides the Macfarlanes, who live in Scotland;e) professional contacts in the recruitment business (I have given some of the names above);f) professional contacts in the aviation sector who live and work in the UK (the claimant identifies persons who work for the companies SITA, Rockwell Collins, Serco, Jet Airways and McKinsey and Co.);g) English colleagues with whom the claimant worked in previous jobs in the aerospace industry (the claimant names five of these, by way of example);h) British nationals whom the claimant has got to know working in Dubai (the claimant names eight such, one of whom is his witness Salim Kudus, now living in Australia, and refers to others who were English or lived and worked in England);i) individuals contacted in the course of his present work; several of the claimant's current colleagues are British, and some ordinarily resident here and working only temporarily in Abu Dhabi;j) pilots whom the claimant meets on trips around the world in connection with his work, including former BA and RAF pilots.
(ii) Application of the law to the facts
First Post article
Second Post article
The Evening Standard
i) the pursuit of the first AOL claim does not constitute an abuse of process on any of the four bases identified in the order of Nicola Davies J;
ii) the Jameel issue does not arise in relation to the second AOL claim, because in the absence of serious harm to reputation there is no cause of action; I might well have concluded in any event that it was unnecessary and disproportionate to add this claim to the claim in respect of the first article.
G. PROCEDURE AND THE TRIAL PROCESS
(i) Procedural history
(ii) Procedural issues
(1) Separating meaning and harm
(2) Service of Defence and Reply
(3) The Content of Witness Statements
i) The threshold for striking out a witness statement or part of it is a high one. She relied on what Hart J said in Sandhurst Holdings: 'this is not a jurisdiction which should be lightly exercised'. AOL do not come close to meeting the threshold, it was submitted.
ii) Since IPL and ESL have placed defences of truth on the record, and these are open to public inspection (CPR 5.4C), it is fair and reasonable for the claimant to respond publicly, and for the court to allow him to do that through a witness statement. He could have done so in a Reply, but that would have been a more expensive and hence disproportionate exercise. To strike out parts of the statement would be unjust as it would leave the public with an unbalanced picture, and permit the publication under the protection of reporting privilege of the allegations against him without his own refutation of those allegations.
iii) In order to assess whether an action is a Jameel abuse it is relevant for the court to consider the extent to which the allegations are said to be false, and the extent to which, if the claimant succeeds, he will make clear not only that he has been grossly libelled but that the public has been seriously misled. Libel actions depend on the particular facts – and in order to understand how seriously defamatory it is, one needs to know more than just the broad lines of the story. The details of the denial are critical.
"… as a general rule (that is one to which there may be exceptions) it will not be for the public benefit to publish any defamatory allegations made in a claim form of particulars of claim available to the public from the court under CPR 5.4C without at the same time publishing the fact that the defendant has denied, or is disputing, the allegations, as the case may be. The effect of s 15(3) is to give the court trying a defamation action the power and duty to consider a balancing exercise on the particular facts of the case. In effect in that, and in the predecessor legislation, Parliament has required the court to carry out a balancing exercise similar to the one which has now become familiar under the HRA, namely art.10 and art. 8 (see Re S (A Child) (Identification: Restrictions on Publication)  1 AC 593, Lord Steyn at .
I find it hard to envisage any circumstances in which there would be a public benefit in publishing defamatory extracts from a claim form or particulars of claim without there being included in the publication a statement that the allegations are disputed or, if it be the case, denied."
"For the purposes of a preliminary issue trial … There may be cross-examination. In Cooke there was none, and Bean J observed that it would have been inappropriate in that case: see . It may not always be so, however, and this case may well be an example of one where cross-examination would be appropriate."
"As a rule a party should put to each of his opponent's witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share ... If he asks no questions he will generally be taken to accept the witness's account and will not be permitted to attack it in his final speech…"
H. THE INTERIM APPLICATIONS
i) for an order striking out those paragraphs of the Defences served by IPL and ESL that rely on 'other publications' as an answer to the claimant's case on serious harm. I have identified the three allegations targeted for this attack in paragraph  above. Having reached the conclusions I have on the applicability of Dingle I shall grant this application in respect of points (1) and (2). Established law, which is binding on me, means that these parts of those Defences disclose no reasonable basis for defending the claim on damage and tend to obstruct the process of doing justice. Item (3) amounts to reliance on collateral allegations of wrongdoing and is barred by the rule in Scott v Sampson, and should be struck out for that reason.
ii) for an order that AOL pay the costs of the pre-action correspondence between it and the claimant in any event, on the grounds that this was prolix, unnecessarily aggressive and argumentative, and/or disproportionate. By agreement, argument on this application has been deferred until after my judgment on the principal issues has been handed down.