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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Malik v Trump [2016] EWHC 2011 (QB) (28 July 2016) URL: https://www.bailii.org/ew/cases/EWHC/QB/2016/2011.html Cite as: [2016] EWHC 2011 (QB) |
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QUEEN'S BENCH DIVISION
Royal Courts of Justice |
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B e f o r e :
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Mr Kamran Malik |
Claimant |
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- and - |
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Mr Donald John Trump |
Defendant |
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Mr. William Bennett (instructed by Messrs Atkins Thomson, Solicitors) appeared on behalf of the Defendant.
Hearing: 28th July 2016 Handed down: 6 October 2016
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Crown Copyright ©
MASTER VICTORIA McCLOUD:
The parties
The claim
"The Claimant brings a claim against the Defendant's negligence in submitting on national television that 'all Muslims, whether they be tourists or immigrants are to be banned from entering the USA until we know what is going on' in the light of recent terrorist attacks in Paris, France. These comments have caused severe loss and distress to the Muslim community in East London's Green Street where the Claimant has sought to build strong relationships and provide support to many business owners and families who heard the news and were shocked by its discriminatory and Islamophobic content."
He continues:
"Under USA law it is difficult to lodge any claim against him due to the Constitution" – by which of course Mr Malik means the US Constitution – "not offering much by way of sanctions for outspoken presidential candidates. However, under UK law the Claimant submits that the Defendant has made slanderous/defamatory statements which affect him as a Muslim, members of his local community and in light of the conduct, the Defendant is liable under both the Defamation Act 2013, Equality Act 2010 and the incitement for racial and religious hatred Act 2006 and should be ordered to make payment to the sum of £10,000,000."
Article 9 states:
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
The progress of this claim
a. "They have sections in Paris that are radicalised – police refuse to go in there. We have places in London and other places that are so radicalised the police are afraid for their own lives". (BBC website, 8 December 2015)
b. "Donald Trump …. has called for a 'total and complete shutdown' of the USA's borders to Muslims"… "Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people who believe only in Jihad, and have no sense of reason or respect for human life"… "Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women."… "the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine." (The Guardian website, 8 December 2015).
c. "Mr Trump…said they should be banned 'until our country's representatives can figure out what is going on'. (and quotes similar to the above, BBC website 8 December 2015)
The arguments on the application
(A) whether the claim brought by Mr Malik is actionable; and if so
(B) whether he ought to be given permission to serve his Claim Form out of the jurisdiction (or alternatively deemed to have validly served out of the jurisdiction in the case of his delivery to the golf club in Scotland).
Lack of a proper claimant
(A) Whether the claim brought by Mr Malik is actionable: Defendant's argument
(i) Breach of CPR 53PD 2.3 requirement to plead defamatory meaning
(ii) That the words complained of do not refer to or identify the Claimant
(iii) That the words complained of were not defamatory even if they referred to the Claimant
The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Overelaborate 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 produce of some strained, or forced, or utterly unreasonable interpretation…' ... (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'
(iv) Articles 9 and 14 of the Convention
(v) The Equality Act 2010
(vi) Racial and Religious Hatred Act 2006
Whether the claim brought by Mr Malik is actionable
(i) Breach of CPR 53 PD 2.3 requirement to plead defamatory meaning
(1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, both
(a) as to their natural and ordinary meaning; and
(b) as to any innuendo meaning (that is a meaning alleged to be conveyed to some person by reason of knowing facts extraneous to the words complained of).
(2) In the case of an innuendo meaning, the claimant must also identify the relevant extraneous facts.
(ii) That the words complained of do not refer to or identify the Claimant
(iii) That the words complained of were not defamatory even if they referred to the Claimant
(iv) Articles 9 and 14 of the Convention
"29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system."
(v) and (vi): The Equality Act 2010 and the Racial and Religious Hatred Act 2006
(a) This claim was automatically struck out under my 'unless' order of 29 January 2016; and
(b) Even if not so struck out, I would refuse leave to serve out, and leave to treat the claim as served out in Scotland, on the basis that the claim does not stand a reasonable prospect of success.
MASTER VICTORIA MCCLOUD
Note 1 s.1 Defamation Act 2013 which applies now, states that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant [Back]