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IN THE HIGH COURT OF JUSTICE
QUEEN'
S
BENCH DIVISION
|
|
Royal Courts of Justice
Strand, London, WC2A 2LL |
|
|
15/07/2014 |
B e f o r e :
THE HON. MR JUSTICE NICOL
____________________
Between:
|
Hafiz Abdul Kadir Barakah UK Ltd (t/a Barakah Money Transfer)
|
Claimants
|
|
- and -
|
|
|
Channel S Television Ltd
|
Defendant
|
____________________
Ben
Silverstone
(instructed by Hafiz and Haque
Solicitors)
for the Claimants
Max Cole (instructed by Freeman Harris) for the Defendant
Hearing dates: 2nd & 3rd July
2014
____________________
HTML
VERSION
OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice Nicol:
- The 2nd Claimant operates a money transfer business from premises in the Whitechapel Road in London'
s
East End. The 1st Claimant was at the material time its director. He is
still
closely involved with the running of the business. The 2nd Claimant principally
serves
the Bengali community in London and the transfers it arranges are mostly to Bangladesh. It was incorporated in 2007.
Channel
S
broadcasts nationally in the UK in the Bengali language. On 27th December 2011 the
station
carried a news report under the heading, 'Money transfer agency in East London faces accusation of fraud.' The Claimants contend that the broadcast was defamatory of them and that Defendant was responsible for the broadcast. Although there was a
suggestion
in correspondence that in December 2011
Channel
S
was owned and broadcast by another company, the Defendant never properly particularised its case in this regard and there were other procedural defaults. On 24th January
2014
Master Eastman entered judgment for the Claimants for damages to be assessed and for the determination of whether the Claimants were entitled to any other remedies.
- At the hearing before me, Mr Cole on behalf of the Defendants, applied for an adjournment
so
that he could apply to
set
aside the default judgment. There was no evidence at all as to why the Defendants had waited
so
long to make these applications. Even assuming that there would be jurisdiction to
set
aside the Master'
s
judgment (CPR r.3.6(2) would appear to require the
set
aside application to be made within 14 days of
service
of the judgment), I considered that there was no basis for exercising
such
a discretion in the Defendant'
s
favour.
- In the course of the hearing, Mr Cole offered an undertaking on the part of the Defendant not to publish the
same
or
similar
defamatory words to those of which the Claimants complained. In those circumstances, an injunction would be
superfluous.
Consequently, the issue for me to decide was
solely
the amount of damages which each Claimant was entitled to recover.
- The broadcast was in Bengali, but I have been provided with a translation. The material parts were as follows:
"Headline: Money transfer agency in East London faces accusations of fraud. Customers gather in front of closed office.
Presenter: …A money transfer agency in East London faces an accusation of fraud. On Tuesday a large number of people gathered in front of Barakh Money Transfer Agency accusing it of fraud. The director of the money transfer agency, Molana Abdul
Kadir
is nowhere to be found. We could not get him on the telephone but it has been
said
on his behalf that he has also been robbed and that is why this
situation
has arisen….
Reporter: This
stair
way and the ground floor of this
store,
this congested area is Barakh Money Transfer. Thousands of customers come to this agency in Whitechapel to
send
money back to Bangladesh, because of their high rate. Many have received their money but recently
some
people have had a different experience.
First Interviewee: When I came here I found them closed. I could not find anyone.
Second
Interviewee: I
saw
one brother from Dhaka crying. He has
sent
400,000 Bangladeshi Taka which was
supposed
to be delivered today but today he has found out that police have closed down the agency.
Third interviewee: I have
sent
166,550 Taka but it has not gone through.
Fourth interviewee: I have
sent
300,000 Bangladeshi Taka to my cousin through Govindo Ganj Bank which he has not received.
Reporter: In the morning they operated normally but later when people began to gather asking for an explanation for why their money has not gone through, then the police came and arrested two members of
staff.
According to the police this agency is a
victim
of robbery. Later the police came to know about the complaints of customers.
Some
of the
students'
hard earned money has also not been
sent.
Fifth interviewee: I
sent
money on the 5th of this month. I am a
student
and I have the receipt as well. When I call them they don't pick up the phone.
Second
interviewee: I
sent
the money the day before yesterday. It was urgent and it has not gone through yet.
Third interviewee: I have lost £404.
Reporter: We asked people why they come to this agency rather than going to the bigger agencies.
First interviewee: We don't know which agency is good and which is not. We come here for the high rate.
……
Reporter: Customers have called with complaints not only from London but also in one case from Oldham. No one knows what is happening with the agency. It is hard to believe
someone
would flee having advertised in newspapers using his own picture. But confusion arises as to why he is not to be found. Obtaining an FSA certificate is not
sufficient.
It is also
vital
to be
sure
about the quality of the agency and the people of the agency or else this incident of fraud will repeat itself again and again."
- Plainly this item referred to the 2nd Claimant. In addition to the words themselves, during the final
sequence,
the reporter pointed at a
sign
which read Barakh Money Transfer outside the 2nd Claimant'
s
premises. As can be
seen,
the item also referred to the 1st Claimant by name. The title 'Molana' denotes a religious title which is reserved for Islamic
scholars.
In the Bengali Muslim community, the 1st Claimant is known as Molana Abdul
Kadir.
- The first
stage
in assessing damages for publication of a libel is for the Court to determine the defamatory meaning which the words bore. I was directed to the principles to be applied in deciding meaning for this purpose -
see
for instance Jeynes
v
News Magazines Ltd [2008] EWCA Civ 130 at [14]. There was no dispute about these.
- I accept that the words complained of had the following meanings which were alleged by the Claimants:
- Individuals working for the 2nd Claimant were reasonably
suspected
of having defrauded a large number of its customers of
substantial
sums
of money.
- The 2nd Claimant could not be trusted to transfer its customers' money to its intended recipients.
- The 1st Claimant had dealt with the
very
serious
suspicions
against the 2nd Claimant'
s
employees and the failures to transfer its customers' money in a highly evasive and incompetent manner.
I reject Mr Cole'
s
submission
that the broadcast meant no more than that there were grounds to investigate the involvement of the 2nd Claimant'
s
employees in fraud. The final words of the reporter, in particular went beyond that. I also reject Mr Cole'
s
contention that the words did not impugn the professional competence or integrity of the 1st Claimant or that, in his case, as well, the report
said
only that there were grounds to investigate.
- In addition to general damages, a libel claimant can
seek
to recover
special
damages. The Particulars of Claim pleaded that the 2nd Claimant had
suffered
special
damage, but that head of loss was not pursued by Mr
Silverstone
on the Claimants' behalf. Consequently my task was to assess the general damages to be awarded to each Claimant.
- The purposes of general damages for defamation are well established. Like all damages in tort, they are intended,
so
far as money is able, to put the Claimant in as good a position as if the tort had not been committed.
Since
the essence of libel is damage to reputation, one purpose of damages is to compensate the Claimant for harm to his or its reputation and,
so
far as possible, to
vindicate
his or its reputation. In the case of an individual claimant (but not a corporate body), damages in defamation are also to provide
some
compensation for the hurt, distress and other injury to feelings which publication of the libel and, if relevant, the
subsequent
behaviour of the defendant, has caused to the injured party -
see
for instance John
v
MGN Ltd [1997]
QB
586, 607.
- What is needed to
vindicate
a person'
s
reputation and compensate for injury to feelings will be influenced by the extent to which the libel was published. Having
said
that, I recognise that the full extent to which a libel has
spread
may be difficult to determine. There always has been the potential for rumours to
spread
along a grapevine. Modern means of communication allow for that percolation of news, whether true or false, to take place far more quickly and more extensively -
see
for instance Cairns
v
Modi [2013] 1 WLR 1015 (CA) at [27].
- Because the Defendant did not properly engage with this litigation, there are no figures for the reach of its programmes. The Claimants pleaded (and the Defendant has not challenged) that it was a particularly popular Bengali
channel.
Doing the best they can by extrapolating from the
size
of the Bengali
speaking
community in the UK, the Claimants estimate that there were about 3,500
viewers
of this programme. The Defendant did not
suggest
any deficiency in this calculation and I am prepared to accept it. The number is relatively modest, but I accept as well the points made by Mr
Silverstone
that the clients of the 2nd Claimant are primarily Bengalis in East London, the programme was broadcast in Bengali and there is a
substantial
concentration of the Bengali community in that part of London. In other words, the programme was particularly likely to reach the part of the population from which the 2nd Claimant'
s
customers were drawn.
- I need also to take into account the nature of the broadcast. The
subject
matter was
stark
and presented in a dramatic way, but it was a relatively
short
segment
of a news programme. The Claimants rely on the one broadcast (together with
subsequent
access which
some
viewers
will have had
via
the internet). It is the nature of television programmes that they have
something
of an ephemeral quality.
- The 2nd Claimant began business, as I have
said
in 2007. In the year to the end of August 2011 its turnover was £68,419. That represented a
substantial
increase from £24,428 for the year ending 31st August 2010. However, the profits of the business were
still
very
small.
They had increased from £764 to £968. Although the increase in turnover
showed
promise, it is fair to
say
that the 2nd Claimant had not yet reached the
stage
of being an established business.
- The monthly accounts for the 2nd Claimant
show
a reasonably
strong
performance in
September
- December 2011 but then a fall by about one third in fees received for the months following the broadcast. The annual accounts for the year ending 31st August 2012
showed
that fees received were £78, 583. That was an increase over the previous year but by nothing like the
same
amount as 2011 had increased over 2010.
- I have to take into account that the broadcast was not the only
significant
event in December 2011. Earlier that month, on 5th December 2011, there had been a robbery in the course of transit to or from the 2nd Claimant'
s
premises.
Some
£310,000 was
stolen.
In her evidence, Amena Khanam Miah, the 1st Claimant'
s
wife, explained that the 2nd Claimant was not covered by insurance for this loss. That will have been a
significant
loss for a business which was
still
in its early
stages.
It will be recalled that the Defendant'
s
news broadcast included reference to this robbery. Mr Cole argued that this had caused
some
unease among the 2nd Claimant'
s
customers and this, in part, was why its customers had gathered outside its premises where they were filmed on 27th December 2011. Mr
Kadir
said
in evidence that these were not his customers, but it
seems
to me that it is only the customers (or perhaps their friends or relatives) who would have the interest in assembling near Barakah Money'
s
premises and expressing their concerns.
- Yet while I
should
take this other event into account and the unease it may have generated, the news broadcast is
still
likely to have had a
seriously
detrimental effect on the 2nd Claimant'
s
trading reputation. It is obvious that a money transfer agency depends on the trust which is reposed in it by its customers. To
suggest
that it has employees who are reasonably
suspected
of fraud and that it cannot be trusted to transfer money to its intended recipients will have
seriously
undermined the confidence which the customers could have in it.
- The Claimants do not
suggest
that the broadcast accused the 1st Claimant of fraud or that there were grounds to
suspect
him of fraud, but they do
say
(and I agree) that the words meant that he had dealt with the
suspicions
of fraud in a highly evasive and incompetent manner. I
should
add that the Claimants
say
(and the Defendant has not disputed) that the police never investigated the Claimants for fraud. They had not
shut
the 2nd Claimant. The police had not arrested any of the 2nd Claimant'
s
employees. On 27th December 2011 the money transfer agency had opened in the morning, but trade was
slow
and, for that reason alone, it closed in the afternoon.
- The 1st Claimant
says
he was
shocked
by the broadcast. He is known as a religious
scholar
and hence he had the title, 'Molana'. For
someone
in his position especially, the allegation of evasion and incompetence was likely to be particularly hurtful. Because of the broadcast, he felt it necessary to
stand
down from being a director of the 2nd Claimant. His wife, Ms Miah, took over from him as director. However, he
still
works as the manager of the 2nd Claimant. He continues to
see
customers and remains in a real
sense
the public face of Barakah Money. He
says
that because of the losses caused by the broadcast, he and his wife obtained personal loans and
sold
their residential home. I am not
satisfied
that this can
sound
in the damages which I
should
award to the 1st Claimant. There is no claim for
special
damages. The 2nd Claimant'
s
business was, as I have
shown,
still
in its early
stages.
Furthermore, the annual accounts for the 2nd Claimant
show
a
very
substantial
increase in
staff
costs which according to the 1st Claimant'
s
wife, Ms Miah, had nothing to do with an increase in the number of
staff.
I cannot be
satisfied
to the civil
standard
that the
stress
and
strains
of these extra loans and the
sale
of their home was attributable to the broadcast.
- Mr
Silverstone
was on
stronger
ground when he
submitted
that the injury to the 1st Claimant'
s
feelings was aggravated by the Defendant'
s
cavalier approach to this litigation. It is right that the Defendant never argued that the broadcast was true or fair comment. However, in a document headed 'Particulars of Defence' dated 22nd April 2013 it alleged that the Defendant did not become responsible for
Channel
S
until June 2012, that in December 2011 the broadcaster was
Channel
S
Global Ltd, a company which
subsequently
went into liquidation. This was not in proper form a defence and on 26th April 2013 I ordered that unless within 14 days a properly pleaded defence was filed and
served,
what purported to be a defence
should
be
struck
out. Thereafter, on 9th May 2013 the Defendant
served
a defence and counterclaim. The allegation that the Defendant was not responsible for the broadcast was repeated in an attached witness
statement,
but there was
still
not a properly pleaded defence.
So
far as the counterclaim was concerned, this was
said
to be for 'damages caused by frivolous action' and damages of £35,000 were counterclaimed. The cause of action was wholly unclear. The allegation that the claim was frivolous was
something
which aggravated the injury to the 1st Claimant'
s
feelings. The Defendant has never apologised to either Claimant for this or for the original broadcast.
- Mr
Silverstone
took me to a number of other cases where damages have been awarded for libel. However, the differences between the factual circumstances of those cases and the present one were too great for any of them to be of any use in the task which I have to perform.
- I have to make an overall assessment of the figure which is necessary to
serve
the function of damages for each Claimant. The meaning of the words regarding the 2nd Claimant was more
serious.
On the other hand, the 1st Claimant, but not the 2nd, can claim for injury to feelings. In my judgment the right
sum for the Defendant to pay is £20,000 to the 1st Claimant and £20,000 to the 2nd Claimant.
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