King v Telegraph Group Ltd.

The Claimant seeks remedies against The Telegraph Group Limited in respect of allegations contained in two articles published in the editions of the Sunday Telegraph dated respectively 21 October and 9 December 2001. He has also made an application to amend to plead, additionally, publications on the internet making allegations similar to those contained in the 9 December article. The October article was headed "Two white suspects in bin Laden probe" and that in December "British Muslim targeted by FBI for terror links".

The Defendant through Mr James Price Q.C. applies to strike out the claim form and particulars of claim pursuant to CPR 3.4 as an abuse of process (or as being likely to obstruct the fair disposal of the proceedings). Alternatively, he seeks summary judgment pursuant to CPR 24.2 on the footing that the claim has no realistic prospect of success in the light of the plea of justification and/or that of qualified privilege. In the yet further alternative, Mr Price suggests that, if the Claimant "squeaks past" the summary judgment test, he should only be permitted to proceed with his claims upon a payment into court by way of security for the Defendant’s costs.

There was also to have been a challenge to the Claimant’s highest pleaded defamatory meaning (to the effect that he is or was a terrorist), but this was obviated by the Claimant’s seeking permission (unopposed) to amend the particulars of claim by removing that meaning and confining himself to a lesser, but nonetheless serious, defamatory implication (i.e. broadly to the effect that there were strong, or at least reasonable, grounds to suspect him of involvement in terrorist activity).

Since the Claimant, through Mr Richard Rampton Q.C., makes a detailed attack on parts of the pleaded case on justification, it is right that I should set out the words complained of. The words from the 21 October edition were as follows:

The natural and ordinary meanings attributed to the October publication are that "there were strong grounds to suspect the Claimant of being a supporter and accomplice of Osama bin Laden’s al-Qaeda network of terrorists who had assisted in that network’s terrorist operations by helping with website activities".

The December publication, is in the following terms:

There was a photograph of the Claimant published in association with the article with the caption "Pro-Gaddafi: Louis Szondy renamed himself Moussa after a Libyan intelligence official".

The natural and ordinary meanings attributed to the December publication are as follows:

There is a defence of qualified privilege pleaded. There is also a plea of justification in respect of the following Lucas-Box meanings: "that the police suspected the Claimant of involvement in terror-related activities on reasonable and/or strong grounds".

Mr Price and Mr Rampton took positions which were effectively "polarised" the one suggesting that this was as hopeless a case as one could find, and the other that it is a meritorious claim which can only be resolved by a jury.

One of Mr Price’s abuse arguments was based on the fact that the Claimant’s litigation is being funded by way of a conditional fee agreement ("CFA"). He told me that this is the first time the court has been asked to give detailed consideration to such an agreement, and the policy considerations underlying it, in the context of defamation proceedings. In essence, he submits that it is possible to conclude even at this stage that the claim has a less than evens chance of success. Accordingly, even if it is not vulnerable to the Part 24 test for summary judgment, the court should find that there is an abuse of process, in the sense that the new CFA regime presupposes that lawyers will only take on such cases when the chances of success are 50% or more. This is reflected in the permitted limit of 100% for success fees. I was naturally referred to Callery v.Gray [2001] 1 W.L.R. 2112, CA; [2002] 1 W.L.R. 2000, HL. Neither the Court of Appeal nor the House of Lords in that litigation addressed the policy considerations applying to such agreements specifically in the context of defamation. There was no need to do so. There is clearly a good deal of overlap between libel and other forms of litigation, in this respect, but the policy considerations cannot be identical. One of the factors mentioned by Lord Bingham at [2]-[4] plainly had no application in defamation (i.e. the need to contain the cost of legal aid to public funds). Nevertheless, it is fundamental to any discussion of Mr Price’s submissions that Parliament expressly extended the CFA regime to apply to defamation cases – obviously with a view to widening access to justice for the vindication of reputation (see s.58 of the Courts and Legal Services Act 1990, as amended by s.27 of the Access to Justice Act 1999, and the Conditional Fee Agreements Order 2000, SI 2000/823).

Mr Price argues that an important consideration which arises in the context of claims against media defendants is that there is a real risk of a chilling effect upon the activities of journalists. Unless they are properly supervised and controlled by the courts, they are likely to restrict impermissibly the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. Just as uncapped and arbitrary damages awards were held to conflict with Convention rights in Tolstoy Miloslavsky v. United Kingdom (1995) 20 E.H.R.R. 442, so too the scale of the financial cost to media defendants entailed by the introduction of CFAs for libel actions will have a similarly inhibiting effect.

He pointed out that after a long and complicated libel action such defendants will find themselves having to bear their own financial costs if they are successful and, if they lose, they will in addition have to pay the claimant’s costs often including a success fee of up to 100% - quite apart from any damages award. There would thus be an enormous incentive to buy out of the litigation irrespective of the merits. In this case, the Defendant could easily find itself facing a bill of the order of £1 million, with the result that a purely commercial assessment of risk might dictate a payment of £10,000 or £20,000 at an early stage. This is a factor of which claimants’ solicitors will naturally be aware, and they may be inclined to take on cases even where their own assessment of their client’s merits is less than evens, for the very reason that the media defendant is likely to buy its way out of the litigation anyway. This he called the "ransom" factor. He submits that, where a solicitor launches defamation proceedings on the basis of such a calculation (or gamble), it should be characterised as an abuse of the CFA regime (although he rather drew back from saying that it would be professionally improper).

Mr Price said, against this background, that media defendants "do not like CFAs". He acknowledged, however, that Parliament has sanctioned them and specifically extended the provisions to cover defamation proceedings. So far as he is aware, on the other hand, no one has addressed the freedom of expression implications to which the new regime gives rise. Moreover, he draws attention to the fact that their Lordships in Callery specifically adverted to the possibility of "abuse" by solicitors and recognised the need for supervision by the court. Lord Bingham, however, in the context of relatively straightforward personal injury actions, was contemplating at that stage that the supervision would normally take place by district judges or, at the conclusion of proceedings, by costs judges. Mr Price argues that this would be of little comfort to media defendants, since by the time the matter comes before the costs judge the supposed abuse with which he is concerned will have wrought its baleful effect (as his clients perceive it to be). There is no doubt that he has highlighted a genuine cause for concern. There is certainly the potential for a chilling effect on investigative journalism and for significant injustice.

Mr Price accordingly submits that it will be necessary, in litigation of this kind, for the court to be on its guard against the abuse inherent in the "ransom" effect from an early stage. He suggests that a judge should, upon assessing the chances of success at less than 50%, bring some discipline to bear by ordering a payment into court by way of security. He recognised, on the other hand, that the court would generally be reluctant to make such an order if it was likely to have the effect of shutting out the claimant. He suggests that, at the very least, it should be recognised in such cases that a CFA should only be allowed to proceed if there is after the event insurance in place ("ATE"). Here, so far, no such insurance is available (although I have been informed by the Claimant’s solicitors that it is still being investigated). Where this is not in place, for whatever reason, he submitted that a modest payment into court should be ordered as a "marker" to signify that the court had "rumbled" the abuse. I hope that I have not summarised his argument unfairly.

I need to bear in mind the modern principles relating to security for costs, as explained by Simon Brown L.J. in Olatawura v. Abiloye [2003] 1 W.L.R. 275 at [26]. Although the comments did not concern a libel action, there is no basis for thinking that they do not apply in such a context. The court should always be on its guard against "exorbitant applications for summary judgment … in a misguided attempt to obtain conditional orders for security for costs". Even where the court is satisfied that the provision of security at a particular level will not preclude the claimant’s access to justice, the occasions when security is ordered solely because the case appears weak may be expected to be few and far between. The court should be reluctant to be drawn into an assessment of the merits beyond what is necessary to establishing whether the Part 24 test has been fulfilled. Yet that is what I am invited to do here.

One might ask what is the point of a payment into court of a token character, where anything more substantial would be likely to bring the proceedings to a rapid conclusion (thus hindering the claimant’s access to justice and working against one of the principal policy considerations underlying the CFA regime). Mr Price’s reasoning in this context was that if the court had pronounced, at whatever stage it was invited to do so, that the chances of success were less than 50%, then this could be reflected in the costs orders made at the end of the litigation – either with regard to the exercise of the trial judge’s discretion or on a detailed assessment by the costs judge.

There are obvious practical difficulties about any such solution. I am primarily contemplating a situation in which the claimant has won his case, and is seeking in consequence to recover his costs (including those specifically associated with CFA agreement). This hypothesis involves either that the claimant has succeeded against all the odds or that the balance has changed over the course of the litigation as to where the merits lie.

In this situation, it is difficult to understand how a judge or master could have any significant impact upon the trial judge’s wide discretion on costs, or for that matter on the detailed assessment by the costs judge, by virtue of what can only have been a preliminary and provisional view as to the merits at an early stage. The trial judge is bound to form an assessment of the merits on the basis of a much fuller picture and to reflect that in the discretionary exercise of awarding or withholding costs. If the claimant has won hands down, perhaps on the verdict of a jury, the trial judge could hardly penalise him or his legal advisers for the reason that, months or even years earlier, it appeared doubtful that he would achieve his vindication. Furthermore, it is by no means unknown in libel litigation for there to be a wide range of views on the merits of the parties’ respective cases, whether at the outset or indeed at the commencement of the trial. What is more, the overall assessment of the merits of the litigation can often change significantly as the litigation progresses (e.g. on the disclosure of documents, the exchange of witness statements or the cross-examination of the claimant). There will be very few cases where a judge is in a position to make an Olympian pronouncement as to the "true" merits of the litigation even at the close of pleadings. (Here the application was launched without a Reply having been served.) Mr Price submits, however, that this is just such a case.

What is said is that by proceeding on the basis of agreed or uncontroversial facts one can see, even at this stage, that the plea of justification and/or that of qualified privilege is highly likely to succeed. There could be such a case, no doubt, but Mr Rampton submits that examples are likely to be few - and that this is certainly not one of them.

Because of the wider implications of Mr Price’s submission, as to what the court’s approach should be to CFA funded litigation, it is necessary to consider libel actions more generally rather than focusing too narrowly on the facts of this particular case. There may be situations where a claimant’s solicitor and counsel are prepared to go ahead in supporting the claim notwithstanding that a cold and dispassionate assessment of the likely outcome would lead them to the conclusion that the case was unlikely to succeed. One can imagine circumstances in which the evidence ranged against the claimant appears very strong indeed. In a case, however, which turns upon the credibility of witnesses, the lawyers in question might simply have faith in their client after having interviewed him or her in depth. It is difficult to see why such a case, perceived by those lawyers to be "meritorious", should not be funded on the CFA basis (see e.g. Lillie & Reed v. Newcastle City Council [2002] EWHC 1600 at [1396]). There is nothing obviously inconsistent with the intention of the legislature. Still less should the lawyers’ conduct, commercially imprudent though it arguably may be, be characterised as either "improper" or an "abuse".

Although it was not pursued in argument, one of the skeleton arguments raised the possibility of CFAs in media cases being the subject of a declaration of incompatibility under the Human Rights Act. That would clearly not be feasible as a matter of generality and, at the moment, I am unable to see how it could be achieved on a narrower basis.

As Mr Rampton points out, it would always be possible for the court to make a wasted costs order if, after a full consideration of the case at trial, it emerged that the lawyers’ behaviour justified such a course (see s.51(6) of the Supreme Court Act 1981).

This case provides a very good example of how one’s assessment of the merits of a claim can fluctuate back and forth as new points are addressed in the course of argument. Mr Price invites me to conclude, on the basis of uncontested facts, that his client is highly likely to succeed in establishing a social or moral duty to publish the allegations complained of to the world at large and/or to demonstrate that there were serious (or reasonable) grounds to suspect the claimant of involvement in terrorism. Shortly before the hearing, a Reply was served on the Claimant’s behalf, which went into considerable detail as to the journalists’ approach to this article (for the purpose of considering Lord Nicholls’ ten non-exhaustive tests in Reynolds v. Times Newspapers Limited). It also had the object of demonstrating that the "reasonable grounds" need to be seen in the light of other facts (some of which may be the subject of more dispute than others).

Mr Price sought to characterise much of the Reply as a "smokescreen", but I need to remember that a judge on a Part 24 application should not conduct a mini-trial or pre-empt the role of the jury. Where there are disputed facts upon which one or more of the defences may turn, a judge should hold back from predicting the outcome and give the relevant party credit for the possibility that the facts relied upon may be proved at trial. As was observed by Buxton L.J. in Spencer v. Sillitoe [2002] E.W.C.A. Civ 1579 at [24]:

In the present case, there are many issues as to the primary facts which apparently require to be resolved before a clear view can be taken on the merits of the plea of justification or that of qualified privilege. Even where there are facts which are in themselves uncontroversial, there is scope for interpreting them in various ways. That exercise might well be assisted by a fuller picture than is available at the moment. For example, the jury would have the opportunity at trial for assessing the character or personality of any of the protagonists. A classic instance, which is by no means the only one available, is the question of whether the Claimant, when he was abroad between October 2001 and August 2002, was "on the run" or, on the other hand, recuperating from the stress of imprisonment and torture while in Sudan. It is not a commonplace issue by any means and would appear to call for a cool assessment of the unusual factual background.

To take a different example, which relates primarily to the defence of qualified privilege, it is the Claimant’s case that the journalist who spoke on the telephone to his mother was not only disentitled to qualify as "responsible", according to Lord Nicholls’ criteria in Reynolds, but also dishonest in his dealings both with her and with his readers. I do not see how I am in a position to say at this stage that a jury would be perverse not to reject that allegation in the light of the available transcript. There is clearly a need for cross-examination and for argument.

Naturally, Mr Price accepts that he has to make his case for summary judgment (and for that matter on abuse of process) in the light of facts that are uncontroversial. It is important to remember, however, that one cannot isolate the uncontroversial facts from the overall background, which itself requires missing pieces to be supplied. It could hardly be disputed that the general subject of terrorism, and the particular topic of British Muslims who may present a threat to security, are matters of public interest. Given the emotive context, however, it is all the more important to assess carefully and dispassionately whether a journalist has behaved in such a way as to establish a social or moral duty, in the light of the information available to him, to point the finger at any given individual. Because someone may be accurately (if somewhat brusquely) described as a "self-proclaimed white Muslim" it does not mean that the onus of establishing such a duty to identify him as a terrorist suspect is in some way reduced. Quite the contrary. Because of heightened sensitivity on such issues, it is all the more important to apply scrupulous standards before exposing such a person to the risk of adverse public reaction.

Mr Rampton mounted a range of criticisms of the Defendant’s pleaded case and of its present applications. These may perhaps be grouped into two broad categories. First, he submits that in many significant respects the facts need to be resolved before anyone can make a meaningful judgment on the merits of either justification or qualified privilege. Secondly, and in any event, he argues that the plea of justification is legally flawed.

It is necessary to remember that a plea of justification may be pitched at one of three levels of gravity in relation to a defamatory sting. To put it another way, a Lucas-Box meaning may fall into one of three categories, which were identified by Brooke L.J. in Chase v. News Group Newspapers Ltd [2003] EMLR 218 at [45]:

This is one of those cases where the defence of justification depends upon establishing at least "reasonable grounds to suspect" the claimant (of involvement in terrorist activity). Because it has become relatively common over the last decade, the ingredients of such a defence have received close scrutiny by the courts on more than one occasion. A convenient starting point would perhaps be Lewis v. Daily Telegraph [1964] A.C. 235, but more recently the practical pitfalls have been examined by the Court of Appeal in Evans v. Granada Television [1996] E.M.L.R. 429, Stern v. Piper [1997] Q.B. 123, Shah v. Standard Chartered Bank [1999] Q.B. 241, Bennett v. News Group Newspapers [2002] E.M.L.R. 39 and, with specific reference to the Human Rights Act, in Chase v. News Group Newspapers [2003] E.M.L.R. 218.

From these authorities (among others) it is possible to derive the following principles, each of which Mr Rampton submits is relevant to the present case:

There was one area of law which was controversial between counsel. The debate turned upon a passage the judgment of Stuart-Smith LJ in Evans v. Granada at p. 435:

It was with the last part of this passage that Mr Price took issue. It is his submission that there is no warrant for the proposition that the claimant can rely upon matters which were unknown and could not have been known to the defendant. It is to be noted that Mann and Nourse L.JJ. both expressly agreed with the reasons of Stuart-Smith LJ. On the other hand, Mr Price submits that the particular words I have highlighted were obiter.

Mr Price may wish to develop that argument on some future occasion, but I propose to approach the matter in the light of the Court of Appeal’s guidance in that case – even though it may not strictly be binding on me. It seems to me consistent with the principle that reasonable grounds have to be assessed "from an objective point of view" and also with the proposition (which Mr Price does not dispute) that the claimant is entitled to rely upon facts outside the defendant’s knowledge at the time of publication. In effect, Mr Price is contending for the introduction of a negligence test into this category of justification. I quite appreciate that lack of care is relevant for the purposes of establishing whether a duty existed in accordance with Reynolds, but there is no warrant for introducing such a concept into justification – any more than there is in the context of fair comment (see e.g. Branson v. Bower [2002] Q.B. 737 at [40]).

It is with these principles in mind that I should now approach Mr Rampton’s criticisms of how the plea of justification is formulated.

He began by describing the particulars of justification as a "jumble" consisting of some factual allegations about the Claimant’s behaviour but also of others which would offend either the repetition rule or the conduct rule or, in some cases, both. He seeks therefore an order striking out certain parts of the defence. The first sentence of paragraph 7 is challenged because it formulates a Lucas-Box meaning, at least partly, on the basis that "the police suspected the Claimant of involvement in terror-related activities". He recognises that the defendant can, in general terms, mount a case to the effect that there were at the relevant publication date facts giving rise, objectively judged, to reasonable grounds to suspect his client of terrorist activity – provided the pleaded case does not infringe any of the principles of law to which I have referred. It would be legitimate, of course, to plead as part of such a case primary facts which happened to coincide with those giving rise to suspicion on the part of one or more police officers. What Mr Rampton wishes to be clear about is that those facts have to be judged objectively, like any other facts, and the allegation that any particular police officer believed them to be true, or considered that they gave rise to suspicion, is irrelevant. Certainly the fact that a police officer believed certain allegations, or thought certain facts suspicious, does not render suspicions "reasonable" that a jury might otherwise dismiss as not passing the objective test.

Mr Rampton acknowledged in the course of argument that it could in some cases be introduced in evidence, as part of the background narrative, that police officers had suspected or arrested the claimant or raided his premises, if such was the fact. Indeed, this seems to be taken for granted in certain passages of their Lordships’ speeches in Lewis v. Daily Telegraph. All the more important says Mr Rampton, that in such cases everyone involved, and especially the jury, should be clear as to the role of such evidence. He wishes to lay down the ground rules here so that there should be no doubt on anyone’s part that the suspicions of police officers do not support a plea of justification – and, in particular, they do not in themselves establish reasonable grounds to suspect. Depending on the circumstances, a pleading in that form may offend against the repetition rule or the conduct rule. More fundamentally, it may offend the basic principle that the only point of such a plea is to justify a defamatory meaning. That X suspected Y of a crime is only defamatory in so far as it conveys the imputation that there were reasonable grounds for such a suspicion. It may well be that the ultimate objection is that such a pleading places a burden of proof on the claimant to prove his innocence. All these rules which I have identified may be regarded as buttressing the presumption of innocence on which a claimant is entitled to rely (see e.g. Brooke L.J. in Chase at [65]).

Mr Rampton is in my judgment correct about this. That part of paragraph 7 which alleges police suspicions is impermissible as a pleading (although no doubt capable of amendment). What is more, if it comes into evidence at trial for some reason, the jury would have to be told in the clearest terms that the mere fact of police suspicions is not capable of supporting the plea of justification. The graver the allegations, the more important it is to hold fast to these principles and not to dilute their purity.

Similar objection was taken to Response 2 served on the Defendant’s behalf on 9 April 2003, by way of answering a request for further information (itself dated 25 February 2003). This asserted that police suspected Francis Etim of terrorism (because he had been arrested and charged under the 2000 Act). The relevance of this is supposed to be that the Claimant "has long-standing and close connections with Francis Etim". Although in this instance the plea is at one remove from the Claimant, the form of pleading is objectionable for the same reasons, and I rule against it.

Objection is also taken by Mr Rampton to sub-paragraphs (1) to (8) and sub-paragraph (10) of the particulars of justification. Part of his criticism is linked to the attack on the Lucas-Box meaning, on which I have already ruled. Mr Rampton recognises that sub-paragraphs (1) to (5) can survive, at least as part of a pleading, provided they go to support "reasonable grounds for suspicion" in the objective sense. Other objections are, however, free-standing. In particular, he will have no truck with sub-paragraphs (6) and (7). The allegations are in the following terms:

These passages clearly offend against a number of the principles I have listed above. Of course, Mr Price would be able to set out the grounds of suspicion on which the raid was based (if he has access to them) but cannot rely on the mere fact of the raid. I will therefore accede to the Claimant’s application to strike out the offending passages.

I will also permit the Claimant’s proposed re-amendments to the claim form, and amendments to the particulars of claim, as pleaded in the drafts attached to the application dated 14 May 2003.

I reject the Defendant’s primary application because it is impossible for me to anticipate a jury’s decision on any of the contested factual issues relevant to justification or qualified privilege – still less to rule that it would be perverse of a jury to accept the Claimant’s case. Of course, as to justification, his case is, in the words of Stuart-Smith L.J. in Evans v. Granada Television (at p.436), " a double-barrelled one: first that the Defendant’s particulars of justification are not correct, or not correct in certain material respects, and, secondly, on the whole of the material proved to the jury’s satisfaction there was no reasonable ground to suspect him". There are certainly some instances where, on paper, the Defendant’s allegations appear impressive. For example, it is pleaded at sub-paragraphs (3) and (4) of the particulars of justification that the Claimant had constructed a website for Francis Etim’s business Sakina Security Services (and for a month carried it on his own website), which offered the "Ultimate Jihad Challenge", inviting people to attend a course of weapons training. It is said that an encryption key was offered for persons wishing to conceal their access to the site.

Mr Price’s argument would appear to be that (a) those factual allegations are incontrovertible and (b) that, whatever explanation might be offered, the facts give rise to reasonable grounds to suspect the Claimant of terrorist involvement – notwithstanding Mr Etim’s acquittal in August 2002. There are, however, matters requiring to be investigated; in particular, the extent of his involvement in, or responsibility for, the content of the website, and whether the weapons training in the United States had anything to do with terrorism at all. The encryption point is also disputed.

Another example is provided by sub-paragraph (9), which pleads inter alia that the Claimant "backs Libya and Colonel Gadaffi over the blowing up of Pan Am Flight 103 in 1988 in Lockerbie, the murder of WPC Yvonne Fletcher outside the Libyan Embassy in 1984 and Gadaffi’s supply of military equipment to the IRA". If any of these allegations turns out to be correct, it is difficult to imagine an English jury rejecting the "reasonable grounds for suspicion" or making the Claimant an award of damages. It would even be tempting to rule at an early stage, if the allegations were uncontroversial, that a finding in his favour would be perverse. Again, however, things are not so simple.

It seems clear that the Claimant admires Colonel Gadaffi’s publications and believes that in some respects he has been treated unfairly. He does not accept, on the other hand, that he "backs" terrorist activities of the kind described. The document relied upon is unclear – not to say garbled. It is headed "Letter from London: Freedom of Speech in Hyde Park Corner?" and appears to be signed by the Claimant as "London Correspondent, Jamahiri African News Service" and to date from 2000. The occasion for this communication seems to have been an address given by Colonel Gadaffi’s daughter at Hyde Park Corner. One passage is especially obscure:

I have no doubt that there is material in this document for cross-examination of the Claimant, and a jury may not be impressed by his answers, but matters fall well short of the required standard for summary judgment.

In Spencer v. Sillitoe [2002] EWCA Civ. 1579 at [31] Simon Brown L.J., having expressed his personal view that the claimant’s case was "singularly unconvincing and as highly likely to fail at trial", nonetheless went on to observe:

In the result, I reject the Defendant’s applications and uphold the submissions of the Claimant. I will hear argument as to the consequences of my rulings, but Mr Rampton did not seek orders of the full width of those in his application. He recognised that some of the sub-paragraphs could, from a pleading point of view, survive. For example, although sub-paragraphs (6) and (7) have to be struck out, I believe it is now uncontroversial that sub-paragraphs (1)-(5) and (8)-(10) can remain.