Introduction
1 This is an appeal against four interlocutory rulings against the defendant
("D. J.") made by Eady J. in two separate judgments on July 6, 2004. It
was heard conjointly with an appeal against a preliminary ruling given
by Eady J. on December 5, 2003 in Mohammed Abdul Latif Jameel and
Abdul Latif Jameel Co Ltd v The Wall Street Journal Europe SPRL ("the
Mohammed Jameel Action"). That action resulted in awards of damages in
favour of each of the claimants. We heard other grounds of appeal against
that result at an earlier sitting. In a judgment which we are handing down
at the same time as this we have dismissed all the grounds of appeal in
that action.
2 The claimant in this action is the brother of the first claimant in the
Mohammed Jameel Action. D. J. is, we presume, affiliated with the
defendant in the Mohammed Jameel Action. D. J. publishes The Wall
Street Journal and The Wall Street Journal On-line. The latter is a
publication made on a world wide web site, access to which is available
to subscribers. In each action the individual claimants complain of
publications implying that they have been, or are suspected of having
been, involved in funding al Qaeda. In each action the defendants have
not sought to justify the defamations alleged. Rather their case has
been that they have been acting as responsible journalists in reporting
statements made by the US authorities.
3 One of the rulings that we deal with in this appeal struck out from
the defence a plea which attacked what has been described as "the
presumption of damage" on the ground that it is not compatible with
Art.10 of the European Convention on Human Rights. More precisely, this
plea was as follows:
"The Defendant ... will contend that Article 10 of the European Convention
on Human Rights precludes [the Claimant] from relying on any legal
presumption of damage to establish standing, injury or harm."
4 This attack was, of course, made in respect of a claim by an individual
claimant. In the Mohammed Jameel Action what appeared to be a
similar point was taken in respect of the claim by the corporate claimant.
Because of this apparent similarity we dealt with the point in each appeal
at the same hearing. In the event the arguments advanced in each
appeal proved very different. The appeal in relation to the presumption of
damage is brought with permission granted by Sedley L.J.
5 The second issue raised by this appeal is whether the claimant has any
prospect of proving that the words complained of were written of and
concerning him. D. J. contends that he has not and advanced this and
other grounds in support of an application for summary judgment. The
judge ruled in favour of the claimant on this point. Sedley L.J. refused
permission to appeal against this ruling. In the course of argument
we invited Mr Gavin Millar, who appeared on behalf of D. J., to renew
the application for permission to appeal. He did so and we granted the
application.
6 The other two issues raised on this appeal both arise out of the fact
that the publication in this jurisdiction of which complaint is made was
minimal. This led D. J. to include in their grounds for seeking summary
judgment the contentions (1) that the claimant could not demonstrate
that a real and substantial tort had been committed in this jurisdiction
and (2) that this action was an abuse of process.
The claim
7 On March 18, 2003 D. J. posted on the world wide web servers of the
Wall Street Journal On-Line in New Jersey the article complained of ("the
article"). This enabled subscribers around the world, and in England
in particular, to draw down the article. According to D. J. the article
remained on the website until around March 22, 2003, when it was moved
into an archive. It remained in the archive until July 2003, when it was
removed altogether.
8 The Article began as follows:
"War on Terror
List of Early al Qaeda Donors Points to Saudi Elite, Charities
By GLENN R. S.
Staff Reporter of THE WALL STREET JOURNAL
WASHINGTON -- A cache of al Qaeda documents seized last year by
U.S. agents in Bosnia identifies some of Saudi Arabia's richest and most
influential families as among the first financial supporters of Osama
bin Laden, and shows how al Qaeda used charitable arms of the Saudi
government.
An account of the roots of al Qaeda found on a computer used by a
suspected al Qaeda front group contains a 1988 memorandum listing
20 Saudi financial backers of Mr bin Laden -- 'the Golden Chain,' as the
bin Laden organization called it. The list includes the families of three
billionaire Saudi banking magnates, several top industrialists and at least
one former government minister.
The Golden Chain list, which doesn't indicate the size of the donations,
was drawn up at a time when supporting the Afghan revolt against Soviet
invaders -- Mr bin Laden's cause at the time -- was a top U.S. foreign
policy objective, as well as a Saudi national cause with deep patriotic and
religious overtones. The list doesn't show any continuing support for al
Qaeda after the organization began targeting Americans, but a number of
the Saudis on it have been under scrutiny by U.S. officials as to whether
they have supported terrorism in recent years."
9 There was a box of text published as part of the article, headed "The
Golden Chain", which read as follows:
"See the list of donors originally filed under seal in U.S District Court
for the Northern District of Illinois ( United States of America v Enaam
Arnout). The list was seized from the Benevolence International
Foundation, an alleged al Qaeda front. According to a court filing, ' BIF
possessed a handwritten draft list of people referred to within al Qaeda
as the 'Golden Chain', wealthy donors to mujahdaeen efforts. At the top
of the list is a Koranic verse stating 'And spend for God's cause'. The list
contains twenty names, and after each name is a parenthetical, likely
indicating the person who received the money from the specified donor."
10 There was a hyperlink which would enable readers of the article to find
the so-called list of donors. On that list appeared the words "In the name
of God, the most gracious, the most merciful and spend for God's cause
(Quraanic verse)", followed by the list. The name which appeared fourth
on the list was "Yousif J. ... (Baterji)".
11 It is pleaded in the particulars of claim that the words in the Golden
Chain list accessible via the hyperlink, in their context, were defamatory
of the Claimant and bore the following natural and ordinary or inferential
meanings:
"6.1 that the Claimant had been among the first financial supporters of
the notorious terrorist Osama bin Laden and al Qaeda;
6.2 that there were reasonable grounds to suspect that the Claimant had
continued thereafter to provide financial support to Osama bin Laden and
al Qaeda, that he had financially supported such terrorism in recent years,
and in particular that he supported those responsible for the September
11 attacks."
12 There was lively debate before us as to the precise circumstances in
which the Golden Chain list came into the possession of D. J.. There is no
need to go into this in detail. It is common ground that the list originated
in Bosnia and was made available by a United States prosecuting
attorney, pursuant to letters rogatory, to claimants in civil proceedings in
Washington brought by 9/11 victims against several hundred defendants,
mostly Saudi, who are alleged to have funded terrorists ("the Burnett
action"). It is the claimant's case that this list should have been used
exclusively for the purpose of the civil proceedings but that it was
improperly made available to D. J. by those acting for the claimants. It
is D. J.' case that no restrictions were placed upon the use that could be
made of the list when it was released to the civil claimants and that the
United States authorities were content that the list had been made public.
13 It is the claimant's case that the Golden Chain list was first put into
the public domain by D. J.. It has since become a very well known
document, although we did not understand Mr Price to submit that D. J.
was responsible for this. There has been placed in evidence in this action
a statement by the claimant in an action against T. Newspapers Limited
which relates to an article in the Sunday T. on June 8, 2003 which, so it
seems, concerned the litigation inspired by the Golden Chain list. It is the
claimant's case that, as a result of the Golden Chain list he has become
suspected of association with Osama bin Laden and al Qaeda when he has
had no connection of any kind with either. On the strength of his name
in the Golden Chain list he has been added as a defendant in the Burnett
action. In these proceedings his objective is not to recover damages but
to achieve vindication.
14 The claimant's solicitors wrote a letter before action on April 15, 2003
in moderate terms. They stated:
"We understand that W….com has several thousand subscribers within
the English jurisdiction. Our client's reputation in England is of the utmost
importance to him ... provided you agree to remove the Golden Chain list
from your web site within 7 days, our client will not seek from you any
compensation or the legal costs which he has had to incur in consequence
of this matter."
15 D. J. declined to act as requested. After further correspondence the
Claim Form was issued on July 18, 2003. Permission was obtained to
serve this out of the jurisdiction and it was duly served in New York. The
Particulars of Claim which were served with it alleged that there were
between 5,000 and 10,000 subscribers to the web site in the jurisdiction.
Paragraph 5 of the Particulars of Claim included the following:
"The Claimant will (if necessary) invite the inference that a substantial
number of readers of the main article as set out above will have followed
the said hyperlink and read the page to which it led."
16 D. J. made no challenge to English jurisdiction. The Defence, served on
November 24, 2003, asserted that the approximate number of subscribers
within this jurisdiction was 6,000. The claimant issued an application
to strike out four paragraphs of the Defence on February 3, 2004. The
success of this application has given rise to the second, third and fourth
issues with which we have to deal.
17 On March 17, 2004 D. J.' solicitors wrote giving notice that they
intended to apply to have the action dismissed on the ground that it
had no reasonable prospect of success. They alleged that D. J. had
been able to ascertain that only four subscribers within the jurisdiction
had followed the hyperlink and thereby accessed the Golden Chain list.
They were subsequently to accept that they had, by error, overlooked
a fifth subscriber. It is their case that there were no more. On grounds
of confidentiality D. J. have not disclosed the identity of two of the
subscribers, but have submitted evidence that neither of these knows
of the claimant nor has any recollection of reading the claimant's name.
The other three subscribers are Mr Andrew Stephenson, the claimant's
solicitor, Mr Edward McCabe, a director of Hartwell PLC, a company with
which the claimant has been associated, and Mr Jonathan Edwards, a
consultant who has worked for the Abdul Latif J. group over the last
seventeen years. They are members of the claimant's camp, to put the
matter colloquially.
18 The claimant has not been prepared to accept without further factual
enquiry that only five subscribers in this jurisdiction accessed the Golden
Chain list. Before us Mr Price conceded that, even if there were more
subscribers, publication was likely to be slight. The judge recorded that
"Mr Price does not accept that Ms Downey's evidence should be taken
at face value or that more evidence will not be available in the light
of disclosure and cross-examination. But for present purposes, he is
prepared to respond to Mr Millar's arguments on the factual assumptions
he wishes to make. He submits that the conclusions which Mr Millar seeks
to draw from those factual assumptions are, in any event, fallacious and/
or wrong in law."
The argument before us has also proceeded on the premise that D. J.
case on the size of publication is correct.
The appeal in relation to the presumption of damage
19 In the Mohammed Jameel appeal Mr Robertson submitted that English
law should be changed so as to place upon corporations the burden of
proving special damage as an essential element in a cause of action for
libel. This was necessary to accommodate the requirements of the Human
Rights Act 1998 and Art.10 of the European Convention on Human Rights
("the Convention"). He made no submissions about the position of an
individual claimant.
20 Mr Millar's submissions were very different. He accepted that where
there is a significant media publication of a defamatory article damage to
the reputation of the individual defamed can properly be inferred. That,
he submitted, was very different to presuming damage as a matter of
law. Where no inference of damage could properly be drawn it was an
unjustified infringement of freedom of expression to presume damage
as a matter of law. It was particularly objectionable that, as seemed to
be the case on existing authority, the presumption of damage should be
irrebuttable. In the present case D. J. were in a position to show that the
very limited publication that had taken place had caused the claimant
no damage. A principle of law which made them liable none the less
was contrary to Art.10. When the Human Rights Act came into force on
October 1, 2000 the courts became bound by s.6 to bring English law into
line with the Convention.
21 Mr Price accepted that the presumption of damage was irrebuttable,
although talk of the presumption of damage was somewhat misleading.
He submitted that the gist of a claim for defamation was that a
publication tended to damage the claimant's reputation not that it actually
did so. Thus, once it was established that a defamatory publication
had been made about an identifiable individual, the tort was made out.
There was no need to prove that the publication had in fact damaged the
reputation of the claimant in the eyes of anyone. Mr Price submitted that
this was a desirable principle of law and one that was not in conflict with
Art.10.
English law prior to October 1, 2000
22 In support of his contention that the tort of libel can be established
even where the claimant's reputation has not in fact been damaged Mr
Price relied first and foremost on Duke of Brunswick v Harmer (1849)
14 Q.B. 185. The facts of that case were remarkable. On September
19, 1830 an article was published in the "W. D.". The limitation period
for libel was then six years. The article defamed the Duke of Brunswick.
Seventeen years after its publication an agent of the Duke purchased
a back number containing the article from the "W. D."'s office. Another
copy was obtained from the British Museum. The Duke sued on those
two publications. The defendant contended that the cause of action was
time barred, relying on the original publication date. The Court of Queen's
Bench held that the delivery of a copy of the newspaper to the plaintiff's
agent constituted a separate publication in respect of which suit could
be brought. (The law reporters do not indicate what the libel was, and
no copy of the offending issue of the W. D. appears to have survived.
The volumes for 1830 in otherwise complete runs in British Library and
the Library of Congress are missing. Other libraries have partial runs,
but none of them include 1830. The proceedings seem to have had the
intended chilling effect.)
23 It is plain that the publications sued on can have caused little or no
damage to the Duke's reputation, indeed the facts set out in the short
report raise serious doubts as to whether the Duke's agent even read the
article. This doubt is accentuated by the following somewhat equivocal
passage in the judgment of Coleridge J.:
"The defendant, who, on the application of a stranger, delivers to him the
writing which libels a third person, publishes the libellous matter to him,
though he may have been sent for the purpose of procuring the work by
that third person. So far as in him lies, he lowers the reputation of the
principal in the mind of the agent, which, although that of an agent, is
as capable of being affected by the assertions as if he were a stranger.
The act is complete by the delivery: and its legal character is not altered,
either by the plaintiff's procurement or by the subsequent handing over of
the writing to him."
24 We do not think that this decision can stand as authority for more than
the proposition that each separate publication gives rise to a separate
cause of action. More pertinent is Shevill v Presse Alliance SA [1996]
A.C. 959. The relevant plaintiff in that case was a young woman whose
home was in Yorkshire and who was defamed by an article in F. S.. That
newspaper had a circulation of about 200,000 copies in France, but only
about 250 in England and Wales, of which perhaps 10 were in Yorkshire.
The issue was whether the plaintiff could establish English jurisdiction
under Art.5(3) of the Brussels Convention of 1968 on the ground that,
so far as the 250 publications were concerned, this jurisdiction was the
"place where the harmful event occurred". The case was referred to
Luxembourg, where the ECJ ruled that a claimant could bring an action
for defamation before the courts of each state in which the publication
was distributed and the claimant claimed to have suffered damage. The
issue then arose as to whether the plaintiff had an arguable claim that
the publication had caused her to suffer damage in England and Wales. In
giving the judgment of the Court of Appeal, Purchas L.J. said this:
"The only idiosyncratic aspect arising from the law in England and Wales
is the assumption of damage. I do not recognise this as a jurisdictional
point. Whether or not there may be detected a publishee in England who
both knew the plaintiff and read and understood the French evening
newspaper may well arise in the course of the action and be relevant to
the assessment of damages. In my judgment, however, to restrict the
exercise of jurisdiction to cases where the existence of such a person is
established would not be correct."
He went on to say that the judgment of Coleridge J. in Brunswick v
Harmer supported this proposition.
25 In the House of Lords Lord Jauncey of Tullichettle, with whom the
remainder of the House agreed, approved the following proposition
advanced by Mr Eady Q.C. on behalf of the plaintiff:
"Since under English law there is a presumption of damage in libel cases,
the plaintiffs did not have to adduce evidence of damage arising from the
publication of the article in question"
His Lordship went on to hold at p.983:
"Where English law presumes the publication of a defamatory statement
is harmful to the person defamed without proof of special damage thereof
that is sufficient for the application of article 5(3). An award of even
nominal damages is recognition of some harm having been suffered by
the plaintiff."
26 In Berezovsky v Michaels [2001] 1 W.L.R. 1004 at p.1012 Lord
Steyn, after reviewing the relevant authorities, stated that the distinctive
features of the English law of libel included the fact that it was not
necessary for the claimant to prove that publication of defamatory words
had caused him damage because damage was presumed.
27 Shevill and Berezovsky sufficiently establish that under English law
publication of a defamatory article carries with it a presumption that the
person defamed by it has suffered damage, without the need to prove
that anyone knowing that person has read the article. What neither case,
nor Brunswick, establishes is that the presumption is irrebuttable.
28 What if an article defames a person who can plainly be identified
by his name or description in the article but the defendant succeeds in
proving that no reader of the article knew or knew of that person? In
Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] E.M.L.R.
737 Eady J. expressed the view that an article defaming an identifiable
individual would give rise to a cause of action even where no one reading
the article had prior knowledge of the victim. While we are unaware of
any authority that supports this proposition, it seems to us that it makes
sound sense. There seems no reason in principle why a newspaper should
not simultaneously create and besmirch an individual's reputation. To take
an extreme example, imagine that an unknown American who was about
to visit an English town was erroneously described in the town's local
paper as a paedophile. Manifestly the law ought to afford him a cause of
action in libel.
29 It follows that where a statement is published to a reader that is
defamatory of an identifiable individual, it will not be possible for the
publisher to prove that no damage has been caused to the individual
simply by showing that the reader did not know the individual. If this
remains good law after October 2, 2000 and if the article identified
the claimant as the Yousef J. on the Golden Chain list, it follows that
the publication of that list to the two unnamed subscribers caused the
claimant some, albeit very modest, damage.
30 What of the three subscribers in the claimant's camp? We have no
knowledge of their state of mind. What if D. J. were able to prove that
they thought none the worse of the claimant after reading the article and
the list? Would they then have succeeded in rebutting the presumption
of damage? We do not believe that English law, prior to October 1, 2000,
would so have held. Coleridge J. in Brunswick came close to covering
the point when he spoke of the defendant lowering the reputation of the
principal in the mind of the agent " so far as in him lies". In Hough v
London Express [1940] 2 K.B. 507 at p.515 Lord Goddard C.J. said:
"If words are used which impute discreditable conduct to my friend, he
has been defamed to me, although I do not believe the imputation and
may even know it is untrue"
Lord Morris approved this statement in Morgan v Oldhams Press Ltd
[1971] 1 W.L.R. 1239 at 1253.
31 There have always been strong pragmatic reasons for proceeding on
the premise that a defamatory publication will have caused the victim
some damage rather than opening the door to the claimant and the
defendant each marshalling witnesses to say that, respectively, they did
or did not consider that the article damaged the claimant's reputation.
32 In summary, our conclusion is that, prior to October 1, 2000, the
presumption that a defamatory publication caused some damage to its
victim was, in practice, irrebuttable.
Has the Human Rights Act changed the law?
33 Mr Millar relied upon a number of principles well established
under Strasbourg jurisprudence in support of the submission that the
presumption of damage was incompatible with Art.10. The most pertinent
of these were the following:
i) Freedom of expression, as protected by Art.10(1), is one of the
essential foundations of a democratic society ( Handyside v UK (1976)
1 E.H.R.R. 737), accordingly any restriction must be convincingly
established under Art.10(2), the burden of proof being on the party
seeking to justify the interference ( Sunday Times v UK (No.2) (1991) 14
E.H.R.R. 229);
ii) Restrictions directed against the media should be particularly closely
scrutinised, since the media have a special place in any democratic
society as purveyor of information and public watchdog ( e.g. Prager and
Oberschlick v Austria (1995) 21 E.H.R.R. 245 (at [34]));
iii) Where there has been an interference with the Art.10(1) right, it is not
sufficient that its subject-matter fell within a particular category or was
caught by a legal rule formulated in general or absolute terms; the Court
has to be satisfied that the interference was necessary having regard to
the facts and circumstances prevailing in the specific case before it ...
( Sunday Times v UK (1979) 2 E.H.R.R. 245, at [65]);
iv) In reviewing the necessity for the interference the Strasbourg Court
will ask not only whether the standards applied by the national authorities
were in conformity with Art.10 but also whether they based themselves
on unacceptable assessment of the relevant facts ... ( Zana v Turkey
(1999) 27 E.H.R.R. 667, at [51]).
34 Mr Millar submitted that the presumption of damage infringed these
principles for a number of reasons. He submitted that a necessity to
hold a claimant liable in defamation where in fact his publication may
have caused no damage cannot be convincingly demonstrated. On the
contrary it is an unjustified interference with freedom of expression.
The presumption operates against media defendants who are frequently
defendants in libel actions and therefore any purported justification
must be particularly closely scrutinised. The presumption is calculated
to have a chilling effect on freedom of speech as claimants will be able
to bring proceedings even though they do not know whether anyone
has read the material complained of, or associated it with them. Insofar
as it is necessary to provide a claimant who cannot prove damage with
vindication in the face of a defamatory publication, English law could
and should devise other ways, such as a declaration of falsity. He further
submitted that the presumption of damage was likely to result in awards
which infringed the principle in Tolstoy.
35 Mr Price's arguments in favour of the presumption of damage were
essentially pragmatic. He submitted that, but for the rule, defamation
actions would be even longer and more complex, to the detriment of the
media. Witnesses would have to be called to testify as to the meaning
that they attached to the words published, instead of leaving it to the
jury to determine this. Leaving it to the jury to reflect the extent of the
defamation by the size of their award of damages was more flexible and
simple than would be requiring the judge to frame a declaration of falsity.
The latter would often be totally impracticable.
36 Mr Price also made the point that the presumption of damage does not
carry with it more than liability to pay a penny damages. There was no
justification for the suggestion that it was liable to result in awards which
infringed the principle in Tolstoy.
37 The presumption of damage has long been a principle of the English
law of defamation. We are aware that it has received adverse comment
in other jurisdictions. In recent times the English law of defamation has
received detailed consideration in both the Faulks Report of 1975 and
the Neil Report of 1991. The abolition of the presumption of damage has
not been recommended. It seems to us that English law has been well
served by a principle under which liability turns on the objective question
of whether the publication is one which tends to injure the claimant's
reputation. It would not be right to abandon this principle in the absence
of a convincing case that it is in conflict with Art.10 of the Human Rights
Convention.
38 Mr Millar has admitted that, so far as media publications are
concerned, it will be a rare case where the presumption of damage
has any significance. Where, as will usually be the case, publication is
significant, an inference that the claimant's reputation has been damaged
will arise which it is impossible to rebut. The presumption has assumed
significance in this case because it has proved possible to identify the
five individuals who, on D. J.' evidence, are the only ones to whom the
article was published in this jurisdiction. The harm done to the claimant's
reputation by the publication to these five individuals is minimal. When
the claimant commenced this action he had reason to believe that the
publication was very much more substantial. Had he known the limited
nature of the publication we find it hard to believe that he would have
started an action in this jurisdiction. As Mr Price pointed out in argument,
libel proceedings are extremely expensive and not lightly undertaken.
39 We believe that circumstances in which a claimant launches
defamation proceedings in respect of a limited circulation which has
caused his reputation no actual damage will be very rare. We reject the
suggestion that the fear of such suits will have a chilling effect on the
media. We have not been persuaded that the possibility of such suits
calls for the radical change in English law for which the defendant has
called. Nor do we accept the broader submission that, because damage
does not have to be proved, juries may award damages on a scale which
offends against the principle in Tolstoy. Judges give juries appropriate
directions as to their approach to awarding damages and if such directions
are disregarded the Court of Appeal has jurisdiction to intervene.
40 We accept that in the rare case where a claimant brings an action
for defamation in circumstances where his reputation has suffered no
or minimal actual damage, this may constitute an interference with
freedom of expression that is not necessary for the protection of the
claimant's reputation. In such circumstances the appropriate remedy for
the defendant may well be to challenge the claimant's resort to English
jurisdiction or to seek to strike out the action as an abuse of process. We
are shortly to consider such an application. An alternative remedy may lie
in the application of costs sanctions.
41 For these reasons we are not persuaded that the presumption of
damage that forms part of the English law of libel is incompatible with
Art.10 of the Convention and that it must, accordingly, be swept away.
The appeal in relation to this issue will be dismissed.
Identification of the claimant
42 Before Eady J. Mr Millar submitted that the claimant had no real
prospect of establishing that readers in England would have understood
that the article referred to him. The judge rejected that submission.
Before us Mr Millar indicated that he would seek to rely on this
submission, not as an independent ground of appeal, but in support
of his contentions that no substantial tort had been committed within
the jurisdiction and that the action was an abuse of process. In these
circumstances it seemed to us appropriate to grant Mr Millar permission
to appeal against the judge's rejection of his contention that it could not
be shown that English readers might have understood that the article
referred to the claimant.
43 The starting point of Mr Millar's argument was that both Yousif and J.
were common Muslim names (the first can be transcribed from Arabic as
either Yousef or Yousif). This is correct. The claimant made this very point
himself, when contending in his action against T. Newspapers Ltd that it
did not follow that the Yousif J. on the Golden Chain list was himself. Mr
Millar further relied upon D. J.' evidence that the publication of the Golden
Chain list in England was limited to 5 subscribers.
44 In his judgment Eady J. cited the statement in para.7.3 in Gatley that:
"Where the claimant is expressly identified by name, it is not necessary to
produce evidence that anyone to whom the statement was published did
identify the claimant"
He went on to hold that:
"The Claimant's name appears in the relevant passage of the words
complained of, and that is sufficient for [Mr Price's] purposes."
45 Taken on its own, that finding would not have justified the judge's
rejection of Mr Millar's submissions. Where a common name is included
in an article, the name itself will not suffice to identify any individual who
bears that name. The context in which the name appears, coupled with
the name may, however, do so. Reference by the judge to passages from
Hulton v Jones [1910] A.C. 20 has satisfied us that the judge attached
significance not merely to the publication of the name Yousif J., but to the
context in which it appeared. He concluded that the two together would,
or might, lead those who knew Mr J. to identify him as the Yousif J. in the
Golden Chain list.
46 We have concluded that the judge was right not to grant D. J.
summary judgment on the basis that there was no reasonable prospect
of proving that the name Yousif J. in the Golden Chain list identified the
claimant. The article alleged that the list was of Saudi financial backers of
Mr bin Laden in 1988. It may well be that the claimant was the only Saudi
of that name who, in 1988, was sufficiently wealthy to feature on such a
list. Furthermore it appears that the claimant has been widely identified
as the Yousif J. on that list. This certainly lends support to the proposition
that, applying an objective test, the claimant was one of those about
whom the article was written.
47 For these reasons D. J.' appeal against the judge's ruling on
identification is dismissed.
No substantial tort and abuse of process
48 It is convenient to take these two matters together, for they overlap.
This action relates to libel in a publication effected by the internet. The
article was posted on the web servers in New Jersey. D. J. pleaded in their
Defence that it was this which constituted publication of the article, so
that no publication occurred in England. The judge struck out that plea,
holding that it was contrary to decisions which included Loutchansky
v Times Newspapers Nos 2 to 5 [2002] Q.B. 783 and at p.813 and
Berezovsky. Sedley L.J. gave permission to appeal against this ruling.
Mr Millar recognised that this court was likely to feel bound to follow the
same authorities that had led to his defeat on this point at first instance
and simply reserved his position in relation to it. Internet publication can,
however, raise in an acute form the issues that we are now considering.
49 Where there is a worldwide publication of an allegedly defamatory
article, whether in hard copy form or on the internet, difficult issues
of jurisdiction may occur. Where the claim is governed by the Brussels
and Lugano Conventions and the Judgments Regulation ( Council
Regulation 44/2001 of December 22, 2000) a claim for all publications
can be brought in the jurisdiction where the defendant is established or
individually in each member state where publication has taken place in
respect only of the publication within that member state: Shevill v Presse
Alliance [1995] 2 A.C. 18. If the latter alternative is adopted, English
jurisdiction in respect of the publication in England cannot be challenged
on the ground that England is not the most convenient forum. Where
the Conventions do not apply, a claimant can obtain permission to serve
a foreign publisher out of the jurisdiction in respect of a publication in
England, pursuant to CPR, r.6.20(8). In those circumstances the claim
will be limited to the publications within the jurisdiction. Furthermore, the
defendant can apply to have service set aside on the ground that there is
an alternative jurisdiction "in which the case may be tried more suitably
for the interests of all the parties and for the ends of justice": The Spiliada
[1987] A.C. 470.
50 It is in the context of an application to set aside service outside the
jurisdiction on such grounds that the question of whether 'a real and
substantial tort has been committed within the jurisdiction' has been
relevant. In Kroch v Rossell [1937] 1 All E.R. 725 the plaintiff brought
libel proceedings against the publishers of a French newspaper and a
Belgian newspaper. He obtained permission to serve each defendant
out of the jurisdiction on the ground that a small number of copies of
each newspaper had been published in England. The vast bulk of the
publications had been in France and Germany. The defendants applied
successfully to have the order giving permission to serve out set aside.
Slesser L.J. remarked at p.729:
"in no sense can it be said that there is any substantial importation
of these papers in England, or that the libel which is said to affect the
plaintiff in England is anything but a very minor incident of the substantial
publication in France."
Scott L.J. added:
"I think that it would be ridiculous and fundamentally wrong to have
these two cases tried in this country, on a very small and technical
publication, when the real grievance of the plaintiff is a grievance against
the widespread publication of the two papers in the respective countries
where they are published."
51 More recently, in Chadha v Dow Jones & Co Inc [1999] E.M.L.R. 724 at
p.732 Roch L.J. stated:
"In my judgment once it is established that there has been an "English
tort" that is to say that there has been a significant publication of prima
facie defamatory matter concerning the plaintiff within the jurisdiction,
the English courts have jurisdiction with regard to that English tort. Where
the perpetrator of the tort is not within the jurisdiction but is abroad,
then leave to serve process abroad under Order 11 is required and the
fundamental principle identified by the House of Lords in The Spiliada
applies. If there is a substantial complaint with respect to the English tort,
having regard to the scale of the publication within the jurisdiction and
the extent to which the plaintiff has connections with and a reputation to
protect in this country as against the inconvenience to the defendant in
being brought here to answer for his alleged wrong-doing then service of
the writ abroad is to be ordered."
52 Mr Millar submitted that these principles applied equally to his
application to strike out the claim on the ground that the action was
an abuse of process. He submitted that no substantial tort had been
committed in this jurisdiction. The publication had been minimal and it
had done no significant damage to the claimant's reputation. In these
circumstances pursuing this expensive action was disproportionate and an
abuse of process.
53 Mr Price conceded that, had D. J. objected to the jurisdiction on the
grounds that England was not the appropriate forum he might have
been hard pressed to justify exercise of an exorbitant jurisdiction. He
contended, however, that by submitting to the jurisdiction D. J. had
conceded that England was the forum conveniens for the claimant's claim.
From the outset, the claimant's only concern was to achieve vindication
in respect of the defamation. English law recognised this as a legitimate
reason for bringing a claim for defamation. The claimant had believed that
there had been a substantial publication of the article together with the
Golden Chain list in England. D. J. had not disabused him. It was far too
late to take the point that there had been no substantial tort within the
jurisdiction. In pursuing the English proceedings the claimant had acted
to his detriment by permitting the possibility of bringing proceedings in an
alternative jurisdiction to become time-barred.
54 Mr Price's submissions amount, so it seems to us, to asserting that
D. J.' failure to challenge English jurisdiction estops them from relying
at this stage on arguments that could have been advanced in support
of such a challenge. We do not accept this. An abuse of process is of
concern not merely to the parties but to the court. It is no longer the role
of the court simply to provide a level playing-field and to referee whatever
game the parties choose to play upon it. The court is concerned to ensure
that judicial and court resources are appropriately and proportionately
used in accordance with the requirements of justice. If D. J. have caused
potential prejudice to the claimant by failing to raise the points now
pursued at the proper time, it does not follow that the court must permit
this action to continue. The court has other means of dealing with such
prejudice. For instance, appropriate costs orders can compensate for legal
costs unnecessarily incurred and relief can be made conditional on D.
J. undertaking not to raise a limitation defence if proceedings are now
commenced in another jurisdiction.
55 There have been two recent developments which have rendered
the court more ready to entertain a submission that pursuit of a libel
action is an abuse of process. The first is the introduction of the new
Civil Procedure Rules. Pursuit of the overriding objective requires an
approach by the court to litigation that is both more flexible and more
pro-active. The second is the coming into effect of the Human Rights Act.
Section 6 requires the court, as a public authority, to administer the law
in a manner which is compatible with Convention rights, insofar as it is
possible to do so. Keeping a proper balance between the Art.10 right of
freedom of expression and the protection of individual reputation must, so
it seems to us, require the court to bring to a stop as an abuse of process
defamation proceedings that are not serving the legitimate purpose of
protecting the claimant's reputation, which includes compensating the
claimant only if that reputation has been unlawfully damaged.
56 We do not believe that Brunswick v Harmer could today have survived
an application to strike out for abuse of process. The Duke himself
procured the republication to his agent of an article published many years
before for the sole purpose of bringing legal proceedings that would not
be met by a plea of limitation. If his agent read the article he is unlikely
to have thought the Duke much, if any, the worse for it and, to the
extent that he did, the Duke brought this on his own head. He acquired a
technical cause of action but we would today condemn the entire exercise
as an abuse of process.
57 In Schellenberg v BBC [2000] E.M.L.R. 296 the claimant had
settled defamation actions against the Guardian and the Sunday T. on
disadvantageous terms, when it seemed likely that he was about to
lose. He then pressed on with this almost identical action against the
BBC. Eady J. struck this out as an abuse of process. He rejected the
submission that he should not do so as this would deprive the claimant of
his "constitutional right" to trial by jury. He said:
"... I see no reason why such cases require to be subjected to a different
pre-trial regime. It is necessary to apply the overriding objective even
in those categories of litigation and in particular to have regard to
proportionality. Here there are tens of thousands of pounds of costs at
stake and several weeks of court time. I must therefore have regard to
the possible benefits that might accrue to the claimant as rendering such
a significant expenditure potentially worthwhile."
He added that the overriding objective's requirement for proportionality
meant that he was bound to ask whether "the game is worth the candle".
He concluded:
"I am afraid I cannot accept that there is any realistic prospect of a 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."
58 In Wallis v Valentine [2002] EWCA Civ 1034; [2003] E.M.L.R. 8 the
Court of Appeal, in a judgment delivered by Sir Murray Stuart-Smith,
endorsed Eady J.'s approach and dismissed an appeal by the claimant
against the striking out of his claim as an abuse of process. That was
an extreme case where the judge had found that even if the claimant
succeeded his damages would be very modest, perhaps nominal, and not
such as could justify the costs of an action which was estimated to last 14
days in circumstances where the claimant had no assets. Furthermore the
claimant was not motivated by a desire for vindication, but was pursuing
a vendetta.
59 In the present case there is no doubt that the claimant is seeking
vindication. His complaint is that the media, including the Wall Street
Journal On-line, have, without justification, treated the Golden Chain list
as if it is a list of those who, in 1988, had contributed to funding Osama
Bin Laden and who, in consequence, remained suspected of funding
terrorism. D. J. had refused to state that the claimant was guilty of
neither, or even to publish his own assertion to that effect. D. J. for their
part do not assert that the claimant had in fact contributed to funding
Osama Bin Laden sixteen or more years ago. They are not prepared,
however, to publish a statement that he did not do so. They assert that
they are entitled, by way of responsible reporting, to publish, without
adopting, such comments as are made by the United States authorities in
relation to the claimant's position. Whether that is all that they have done
and whether that provides them with a defence of qualified privilege are
issues raised in this action.
60 If vindication is the first object advanced by the claimant for pursuing
this litigation, the second is to obtain an injunction restraining D. J. from
repetition of the alleged libel. We must now consider each objective to see
whether it justifies the continuance of this action.
Vindication
61 Mr Price accepted that the claimant's cause of action related only to
the publications within this jurisdiction, which for purposes of argument
are assumed to have been no more than the five individual publications
that D. J. have identified. Yet the publication was a worldwide publication
and at times Mr Price's submissions suggested that it was legitimate
to have regard to the vindication that these proceedings would, if
successful, bring about in relation to the worldwide publication. If the
claimant obtains a favourable verdict from the jury in this action there
will be nothing to prevent him from asserting that the verdict provides
vindication in respect of the global publication. Two questions arise.
First, where there has been a worldwide publication on the internet, can
a claimant justify proceeding in a country where publication has been
minimal on the ground that this is a good forum in which to seek global
vindication? Secondly, to what extent are the present proceedings likely to
result in vindication?
62 Berezovsky provides assistance in answering the first question. The
plaintiff, a Russian, brought a libel action in respect of an article in the
American magazine Forbes. 98.9 per cent of the issue in question was
sold in the United States of America, Canada or to US forces. The English
circulation was about 2000 copies. The plaintiff obtained permission
to serve proceedings out of the jurisdiction. On the application of the
defendants the judge set this service aside, on the ground that the
appropriate jurisdiction for the dispute was Russia. The defendants gave
undertakings that ensured that the claimant would be able to pursue his
claim in that jurisdiction.
63 The Court of Appeal reversed that decision [1999] E.M.L.R. 278. They
held that the judge had erred in principle in approaching his decision as
if the global publication was a single tort in respect of which an action
could only be brought in a single jurisdiction. Each publication in England
had to be treated as a separate tort. Where there was no complaint of
substance in relation to that English torts, either because there was an
insignificant English circulation, or because the plaintiff had no connection
with or reputation to protect in England, or both, permission to serve out
should not be given because the Spiliada test would not be satisfied. In
the instant case the claimant had connections with and a reputation to
protect in England and, having regard to the extent of the publication,
there was a substantial complaint as regards the English torts. An appeal
in respect of a second similar action was heard at the same time and
followed the same course.
64 There was a further appeal to the House of Lords. The majority
supported the analysis of the Court of Appeal. Lord Hoffmann viewed the
matter differently. He said at pp.1023-4:
"... the notion that Mr Berezovsky, a man of enormous wealth, wants to
sue in England in order to secure the most precise determination of the
damages appropriate to compensate him for being lowered in the esteem
of persons in this country who have heard of him is something which
would be taken seriously only by a lawyer. An English award of damages
would probably not even be enforceable against the defendants in the
United States: see Kyu Ho Youm, "The Interaction Between American
and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel
Judgments" (2000) 49 I.C.L.Q. 131. The common sense of the matter is
that he wants the verdict of an English court that he has been acquitted
of the allegations in the article, for use wherever in the world his business
may take him. He does not want to sue in the United States because he
considers that New York Times v Sullivan (1964) 376 U.S. 254 makes
it too likely that he will lose. He does not want to sue in Russia for the
unusual reason that other people might think it was too likely that he
would win. He says that success in the Russian courts would not be
adequate to vindicate his reputation because it might be attributed to his
corrupt influence over the Russian judiciary."
65 A little later Lord Hoffmann added:
"The plaintiffs are forum shoppers in the most literal sense. They have
weighed up the advantages to them of the various jurisdictions that
might be available and decided that England is the best place in which to
vindicate their international reputations. They want English law, English
judicial integrity and the international publicity which would attend
success in an English libel action."
Lord Hoffmann concluded:
"My Lords, I would not deny that in some respects an English court would
be admirably suitable for this purpose. But that does not mean that we
should always put ourselves forward as the most appropriate forum in
which any foreign publisher who has distributed copies in this country, or
whose publications have been downloaded here from the Internet, can be
required to answer the complaint of any public figure with an international
reputation, however little the dispute has to do with England. In Airbus
Industrie G.I.E. v Patel [1991] 1 AC 119 your Lordships' House declined
the role of "international policeman" in adjudicating upon jurisdictional
disputes between foreign countries. Likewise in this case, the judge was
in my view entitled to decide that the English court should not be an
international libel tribunal for a dispute between foreigners which had no
connection with this country."
66 So far as concerns the issue currently under consideration there is no
conflict between the view of Lord Hoffmann and the view of the majority.
This action falls to be considered as relating exclusively to an independent
tort, or series of torts, in this country. It is thus not legitimate for the
claimant to seek to justify the pursuit of these proceedings by praying
in aid the effect that they may have in vindicating him in relation to the
wider publication.
67 To what extent will this action, if successful, vindicate the claimant's
reputation? English law and procedure does not permit the court to make
a declaration of falsity at the end of a libel action. Where justification has
been pleaded the verdict of the jury will determine whether the defendant
has justified the defamation. Where there is no plea of justification,
the jury is directed to proceed on the presumption that the defamatory
allegation is untrue. The damages that they award will indicate their view
of the injustice that has been done to the claimant by the allegation that
is presumed to have been untrue. To this extent an award of substantial
damages provides vindication to the plaintiff. The presumption of falsity
does not however leave the judge in a position to make a declaration to
all the world that the allegation was false. In the present case, where the
matter will not even be explored at the trial, the judge could not possibly
be expected to declare, with confidence, that the claimant never provided
funding to Osama bin Laden. There may well in due course be a finding in
relation to this in the Burnett action, where the question will be directly in
issue.
68 What will be in issue at the trial, if it proceeds, has not been explored
before us. The judge summarised the position by saying that the Defence
included "defences by way of qualified privilege on various bases". We
anticipate that these defences are likely to prove cumbersome to try
with a jury, involving a lengthy and expensive trial. At the end of the
day the trial will determine whether the publications made to the five
subscribers were protected by qualified privilege. If they were not, it
does not seem to us that the jury can properly be directed to award other
than very modest damages indeed. These should reflect the fact that the
publications can have done minimal damage to the claimant's reputation.
Certainly this will be the case if the three subscribers who were in the
claimant's camp prove to have accessed the Golden Chain list in the
knowledge of what they would find on it and the other two had never
heard of the claimant.
69 If the claimant succeeds in this action and is awarded a small amount
of damages, it can perhaps be said that he will have achieved vindication
for the damage done to his reputation in this country, but both the
damage and the vindication will be minimal. The cost of the exercise will
have been out of all proportion to what has been achieved. The game will
not merely not have been worth the candle, it will not have been worth
the wick.
70 If we were considering an application to set aside permission to
serve these proceedings out of the jurisdiction we would allow that
application on the basis that the five publications that had taken place in
this jurisdiction did not, individually or collectively, amount to a real and
substantial tort. Jurisdiction is no longer in issue, but, subject to the effect
of the claim for an injunction that we have yet to consider, we consider for
precisely the same reason that it would not be right to permit this action
to proceed. It would be an abuse of process to continue to commit the
resources of the English court, including substantial judge and possibly
jury time, to an action where so little is now seen to be at stake. Normally
where a small claim is brought, it will be dealt with by a proportionate
small claims procedure. Such a course is not available in an action for
defamation where, although the claim is small, the issues are complex
and subject to special procedure under CPR.
71 Mr Price submitted that to dismiss this claim as an abuse of process
would infringe Art.6 of the Convention. We do not consider that this
Article requires the provision of a fair and public hearing in relation to an
alleged infringement of rights when the alleged infringement is shown
not to be real or substantial. Subject to the final issue, to which we now
turn, and on the premise that there have only been the five individual
publications within this jurisdiction, we would dismiss this action as an
abuse of process.
The claim for an injunction
72 The claimant's objection to the publication in this case, and in other
cases, is not to the reporting of the discovery of the Golden Chain list and
the names on it, but to assertions that this list demonstrates that he was
an early donor to Al Qaeda and a financial backer of Osama bin Laden
and that he has been under scrutiny by the US officials as a possible
supporter of terrorism. Mr Price contends that the continuation of these
proceedings is justified because of the risk of repetition of these libels and
the need to obtain an injunction against such repetition. He accepted that
he could only seek an injunction restraining further publications within
this jurisdiction, but contended that it is technically possible for D. J. to
restrict access to matter put on the world wide web so as to exclude from
such access those within this jurisdiction.
73 Mr Millar challenged this last contention. He made D. J.' position plain:
"D. J., as major American news organisation, will assert, if I can put it this
way, to the last breath of its advocate, its freedom to report both in the
US and worldwide two things. First of all, the fact of the existence of a
document of major public importance (that is the list; the golden chain
list itself) and, secondly, what the US Government has repeatedly said
about it in public, having itself, that is the government, put the document
into the public domain. I emphasize, we are not talking here, if I can
put it that way, about the stray comments of a stray US attorney in the
odd case as Mr Price tries to suggest. The golden chain is a key piece
of factual history, re the development of international Muslim terrorism,
and is referred to repeatedly, as I have said, in, for example, the 9/11
Commission Report. It is therefore now part of the currency of the public
debate in the US and, indeed, therefore worldwide surrounding the 9/11
tragedy."
74 Where a defamatory statement has received insignificant publication
in this jurisdiction, but there is a threat or a real risk of wider publication,
there may well be justification for pursuing proceedings in order to obtain
an injunction against republication of the libel. We are not persuaded that
such justification exists in the present case.
75 There seems no likelihood that D. J. will repeat their article in the
form in which it was originally published. It has been removed from the
web site and from the archive. If they do publish further material about
the Golden Chain list, it is likely to be by way of reports about litigation
in which the list features, or statements made about the list by the US
Government or other authorities. It is quite impossible to predict whether
any such future publication will be protected by privilege, or calculated to
cause significant damage to the claimant's reputation.
76 In these circumstances, if this litigation were to proceed and to
culminate in judgment for the claimant, it seems to us unlikely that the
court would be able, or prepared, to formulate and impose an injunction
against repetition of the defamation in terms that would be of value to
the claimant. We do not believe that a desire for this remedy has been
what this action has been about, or that the possibility of obtaining an
injunction justifies permitting this action to proceed.
77 For these reasons we shall allow this appeal and make an order
staying these proceedings.