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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 >> Suresh v Samad & Ors  EWHC 76 (QB) (27 January 2017)
Cite as:  EWHC 76 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Selvaratnam Suresh
|- and -
|(1) Abdul Samad
(2) Amirthalingam Nagarajah
(3) Kajananan Sathananthan
(4) Youtube user 'Niyayam Enge'
Richard Owen-Thomas (instructed by Public Access) for the Defendants
Hearing date: 18 January 2017
Crown Copyright ©
Mr Justice Warby :
59. This material does not, individually or in combination, come close to an adequate pleading of the defence of truth. Still less can it pass muster as a plea alleging the truth of allegations of fraud.
60. Pleading deficiencies are common in defamation cases and, as Mr Santos has very properly pointed out, it is well-established that in an appropriate case, the court may grant the application [to strike out] while allowing a further opportunity to recast the pleading (Ashcroft v Foley  EMLR 30).
61. I am a long way from concluding that it is likely that a fresh attempt at pleading a tenable case will succeed. But I have been persuaded that they should be given a last opportunity. I will lay down clear ground rules for the format any such attempt must take, and I will scrutinise with care anything that is produced. As for the summary judgment application, the claimant has presented a cogent and powerful case but I will adjourn that application so far as this issue is concerned. The defendant will be given an opportunity, at the same time as he reformulates his defence, to put in further and better evidence. At present his evidence is enough, but only just enough, to persuade me to grant him more time.
63. With similar hesitation, I have concluded that there may be a real prospect that the first defendant could plead a viable defence of public interest, with some real prospect of success at a trial.
64. It seems to me clearly arguable that the question of whether charity funds have been misappropriated by those entrusted with custody of such funds is a matter of public interest.
65. The first defendant has certainly asserted, not only in the words complained of but also in his defence and his evidence, that the claimant and his fellow trustees have refused adequately to respond to legitimate questions about the charity's funds and accounts. That might perhaps be a basis on which to assert a public interest justification for making the questions or criticisms known to a wider audience. An adequate plea of public interest would require more than generalities such as these. The elements of the defence would need to be pleaded clearly, with supporting detail. Precision would be required, with specific documents and events of relevance identified. In the short time available to him to respond to this expanded case, Mr Santos pointed out with some cogency that the evidence does not seem to reveal any questions being raised with the claimant, before publication, about the alleged cheque fraud or the allegedly missing £480,000.All things considered however, I conclude that the best course is to allow the first defendant a further, though final opportunity to put his case in order."
The defendants' application
(1) the alternative plea in paragraph 29, that the Videos were substantially true in the meaning set out in paragraph 21:
"that there are reasonable grounds to suspect that the Claimant:
a. used a fraudulent cheque to steal some £23,000 of charity money from OFAAL.
b. defrauded the charity of a further £480,000;
c. refused to answer legitimate questions about these matters; and
d. made nepotistic appointments to help him cover up his wrongdoing"
(2) the plea in paragraph 30 that
"Further or alternatively each of the publications was, or formed part of, a statement on a matter of public interest. The Defendant reasonably believed that publishing the words complained of was in the public interest."
(1) If there is a viable defence of truth in relation to important and serious allegations, then it is in everyone's interests that it sees the light of day and can be properly addressed on a fair and open basis: Ashcroft v Foley  EMLR 30  (Eady J).
(2) A plea of truth must enable the claimant and his advisers to know the case they have to meet. It is not in the public interest for a case to proceed on a muddled basis: ibid.
(3) It is not permissible in a statement of case for a party to approbate and reprobate, or to adopt two inconsistent attitudes at the same time: Express Newspapers v News Ltd  1 WLR 1320, 1329F-G (Sir Nicholas Browne-Wilkinson VC).
(4) On a summary judgment application the overall burden of proof rests on the applicant to establish that the respondent has no real prospect of success and that there was no other reason for a trial of the claim or issue. If an applicant adduces credible evidence in support of its application then the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof upon the respondent is not high. Summary judgment is for plain cases which are not fit for trial: Antonio Gramsci Shipping Corporation and others v Recoletos Ltd and others  EWHC 1134 (Comm) ,  (Gross J); Apvodedo NV v Terry Collins  EWHC 775, (Ch)  (Henderson J).
(1) Paragraph 29 of the draft Amended Defence fails to disclose any reasonable basis on which any of the defendants could defend the claim. I am not persuaded that there is any proper reason to give the defendants yet another chance to formulate an acceptable plea of truth. It is now quite clear that they could not hope to achieve that. The evidence, taken as a whole, convinces me that there is no real prospect that such a defence could be pleaded and proved. There is no other compelling reason to have a trial of this issue. I therefore refuse permission to amend by incorporating paragraph 29, and decline to adjourn either side's applications. That leaves no issue as to truth, and there would seem to be no room for an order for summary judgment on the issue, but no need for such an order either.
(2) Paragraph 30 of the draft Amended Defence fails to disclose any reasonable basis on which the first or second defendant could defend the claim. Again, I do not consider that there is any real prospect that either of them could plead or prove a defence of public interest. There is therefore no basis for any adjournment of that aspect of the dispute. I refuse the first and second defendants' applications for permission to amend to plead public interest. There being no issue, there is no need for summary judgment.
(3) The third defendant's position, so far as public interest is concerned, seems to me to be separate and distinct from that of the first and second defendants. The pleading of the public interest defence is imperfect. But I have not been persuaded that there is no real prospect that the third defendant might make out a defence under s 4. I am therefore prepared in principle to grant him permission to amend to plead that defence, subject to some improvement of the drafting. I will not grant summary judgment on this issue.
The plea of truth
" parents of children at the West London Tamil School asked the claimant and other trustees
3. Why the claimant had written a cheque to a company with which he was connected
(v) to which no proper response was received."
(1) The defendants have made a number of demonstrable errors in their calculations. They have used incorrect figures for the number of students who sat exams. They have double-counted some fees. They have used the wrong figures for some exams. They have used the wrong currency to calculate the value of the income from Norway, resulting in an error of over 38%. All these criticisms are accepted by the defendants.
(2) In order to work out whether there is in fact any and if so what discrepancy between the income from exam fees and the sums banked and recorded by OFAAL it is necessary to carry out much more sophisticated calculations than any that the defendants have ever undertaken. Account would need to be taken of various matters which the defendants have not taken into account, such as when fees were received or receivable; what travelling fees were chargeable to students; and other matters.
(3) It is clear that the defendants' figures for the amount of fees that were or should have been collected in respect of European exams are significantly overstated.
The plea of public interest
"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 clamant 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."
(1) It is not enough for the statement complained of to be, or to be part of, a publication on a matter of public interest. It must also be shown that the defendant reasonably believed that publication of the particular statement was in the public interest.
(2) To satisfy this second requirement, which I shall call "the Reasonable Belief requirement", the defendant must (a) prove as a fact that he believed that publishing the statement complained of was in the public interest, and (b) persuade the court that this was a reasonable belief.
(3) The reasonable belief must be held at the time of publication.
(4) The "circumstances" to be considered pursuant to s 4(2) are those that go to whether or not the belief was held, and whether or not it was reasonable.
(5) The focus must therefore be on things the defendant said or knew or did, or failed to do, up to the time of publication. Events that happened later, or which were unknown to the defendant at the time he played his role in the publication, are unlikely to have any or any significant bearing on the key questions.
(6) The truth or falsity of the allegation complained of is not one of the relevant circumstances.
(7) It is not only those who edit media publications who are entitled to the benefit of the allowance for "editorial judgment" which s 4(4) requires "
"I would consider a belief to be reasonable for the purposes of s 4 only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case. Among the circumstances relevant to the question of what enquiries and checks are needed, the subject-matter needs consideration, as do the particular words used, the range of meanings the defendant ought reasonably to have considered they might convey, and the particular role of the defendant in question."
a. The Defendants had, through their perusal of the Accounts, the registers and their knowledge of the way in which the Charity operated, gained credible information that OFAAL's accounts disclosed significant discrepancies.
b. The Defendants had attempted to raise the matters internally with the Claimant but had received no or no adequate response.
c. The subject matters set out above are matters of general public importance.
d. OFAAL is a small charity with little external oversight, and little publicity.
e. Many of the members of OFAAL have little experience of the charity regime in the United Kingdom, of accountability and governance in the UK, and may have little experience in challenging and holding to account charitable organisations in the UK
f. The accountability of OFAAL therefore depends to a large extent on the honesty and integrity of its Trustees and the ability of its members to question its trustees.
g. The affairs of the Charity would otherwise stand very little scrutiny if limitation were put on legitimate protest and the raising of such questions as the Defendants have raised in the Videos."