Jameel v Abdul Latif Jameel Company Ltd

Following the pre-trial review in this libel action which is due to be tried in December, I am now required to rule on two outstanding matters, namely, (1) an issue of meaning and (2) questions on the admissibility and relevance of eleven witness statements served on the Claimants’ behalf, and accompanied by Civil Evidence Act notices in May of this year.

The claim is founded upon an article appearing in the Wall St. Journal (Europe) for 6 February, 2002 entitled “Saudi Officials Monitor Certain Bank Accounts. Focus Is On Those With Potential Terrorist Ties”. I am told that there is a readership of the order approximately of 90,000 in this jurisdiction. The author is Mr. James Dorsey. As it happens, it is the same article which forms the subject matter of the claim by the Al Rajhi Banking & Investment Corporation and has received detailed consideration in two earlier judgments in those proceedings (see [2003] EWHC 1358 (QB) and [2003] EWHC 1776 (QB), handed down respectively on 12 June and 21 July, 2003).

This claim is brought by Mohammed Abdul Latif Jameel, the First Claimant, and Abdul Latif Jameel Co. Ltd., the Second Claimant, who allege that they are referred to in, or identifiable from, the article, which is a matter of dispute, and that the words bear the following defamatory imputation: “In their natural and ordinary meaning, and in the context in which they appeared, including the headlines on the front page and page 4, the said words meant, and were understood to mean, that the Claimants were reasonably suspected of having terrorist ties and of funnelling funds to terrorist organisations, and had therefore been included on a list of bank accounts which were required by the US law enforcement agencies to be closely monitored by the Saudi Arabian Monetary Authority”.

In the Al Rajhi case, much attention was focused on the pleaded meanings, and especially upon various formulations of Lucas-Box meanings which the Defendants wished to justify. In this case, Mr. James Price Q.C. for the present Claimants has referred to my earlier judgment of 21 July, and submitted that the position is analogous. Nevertheless, I must not forget that this is a different claim between different parties.

The present application is somewhat unusual in that both parties are inviting me to “delimit” the possible meanings in advance of the trial, to borrow a phrase from the judgment of Hirst, LJ in Mapp -v- News Group Newspapers Ltd. [1998] Q.B. 520. What is unusual is that the invitation comes in advance of trial and when there is (a) no suggestion that the article was incapable of bearing the Claimants’ meaning, set out above, and (b) no plea of justification on the record, and thus no Lucas-Box meanings to be considered.

Mr. Robertson Q.C., appearing for the Defendants, as he did in Al Rajhi, submits that the words are capable of a lesser defamatory meaning than that contended for by the Claimants (assuming, of course, that the Claimants are able to establish that the words did indeed refer to them).

Mr. Price argues that, as I held in Al Rajhi, the words are only capable of conveying that there are “reasonable grounds to suspect” the Claimants of having terrorist ties and of funnelling funds to terrorist organisations. Mr. Robertson argues that there is room here for the lowest of the three tiers of gravity identified by the Court of Appeal in Bennett -v- News Group Newspapers [2002] EMLR 39 and Chase -v- News Group Newspapers [2003] EMLR 218 - namely, that there are grounds merely for investigation. This corresponds to the issue on which I ruled in Al Rajhi on 21 July (at paragraphs 8 to 12). There I held, in the context of various proposed Lucas-Box meanings, that the article was only capable of conveying the more serious of the two imputations, i.e. that there were in the case of that Claimant “reasonable grounds to suspect”.

The tests to be applied on any such application are clear from a number of Court of Appeal authorities, including, for example, Gillick -v- BBC [1996] EMLR 267 and Mapp (cited above). Mr. Robertson relies primarily upon the distinction that there is no allegation corresponding to paragraph 11 of the article which refers specifically to the Al Rajhi group in the following terms: “The US officials said the accounts of Al Rajhi Banking and Al Rajhi Commercial Foreign Exchange were being monitored because of suspected associations of the companies in the past. A spokesman for Al Rajhi Banking, Ahmed Suleiman Ahmed, said, ‘We maintain that our names have not come up; nor have the names of members of the Al Rajhi family’”.

On the other hand, Mr. Price invites particular attention to paragraph 4 of the article: “The US officials said the US had agreed not to publish the names of Saudi institutions and individuals provided that Saudi authorities took appropriate action. Many of the Saudi accounts on the US list belong to legitimate entities and businessmen, who may, in the past, have had an association with the institutions suspected of links to terrorism, the officials said. The officials said similar agreements had been reached with authorities in Kuwait and the United Arab Emirates. ‘This arrangement sends out a warning to people’, the US official said”. That is general, and not confined to Al Rajhi. It would therefore, he submits, reflect upon any identifiable person, including these Claimants. Moreover, it is not appropriate to expect readers to draw sophisticated distinctions between some of the named bodies and others. After all, the headlines will undoubtedly be taken as of general application. Also, the citation in paragraph 5 of the article, attributable to the Saudi government, states, “In a recent report to the United Nations about combating terrorism, however, the Saudi government said, ‘The Kingdom took many urgent executive steps, amongst which SAMA sent a circular to all Saudi banks to uncover whether those listed in the suspect lists have any real connection with terrorism’”.

Accordingly, the remarks I made in paragraph 11 of my earlier judgment would appear to be apposite here: “Since the focus is already declared to have been on those with potential terrorist ties, it is difficult to comprehend how a fair-minded reader is supposed to construe ‘ties’, ‘links’, or ‘associations’ variously referred to throughout the article as being other than the subject of at least reasonable suspicion - that is to say, as giving rise to suspicion of knowing or negligent involvement - or because the possibility has also to be admitted of the use of the Claimants’ accounts or facilities being unwitting - of negligently permitting circumstances to arise where they were so used”.

As the parties invite me to rule at this stage, my conclusion is that the words complained of in these proceedings are not capable of bearing a lesser defamatory meaning than that of “reasonable grounds to suspect”, reflected in the second tier of gravity identified by Lord Justice Brooke, LJ in Chase at paragraph 45.

The other issue to be resolved is that of the eleven witness statements which were served with Civil Evidence Act notices some months ago, and in respect of which no counter-notices have been served. They consist of a statement from the Saudi Arabian Monetary Authority (SAMA) which was said in the article to be the body “monitoring”, and of ten others deriving from other Saudi banks. I am told that the Claimants have, as yet, not quite covered all the Saudi banks, but these statements certainly embrace the great majority. The object of that exercise is to demonstrate to the jury that the central allegation of the article is quite simply wrong, since no such monitoring was taking place, whether of the Claimants or at all. Whether the statements achieve that objective is another question. Mr. Robertson has submitted that upon close analysis they do no such thing. Nevertheless, for the moment, I am concerned with the question of principle as to whether the Claimants should even be permitted to try to demonstrate falsity - in a case where there is no plea of justification. There is a presumption that defamatory words are false, unless and until the relevant defendant proves them to be true.

Here, because there is no plea of justification, the presumption will prevail. Why, therefore, it may be asked, should the Claimants be allowed to adduce evidence which appears to be directed to the unnecessary exercise of disproving the truth of the libel? Could it conceivably be relevant to the issue of qualified privilege? Intuitively, one would answer in the negative. Moreover, some consideration was given to the question by the Court of Appeal in GKR Karate -v- Yorkshire Post (No. 1) [2000] EMLR 396 at 406. It is possible to derive authority from that decision for at least these two propositions: (1) it is not relevant to qualified privilege whether the publication was true or not; (2) it is not relevant to speculate what further information the publisher might have discovered if he had made more extensive inquiries.

Mr. Price, however, seeks to distinguish GKR Karate on the facts, and to argue that there are features in the present case not addressed by the Court of Appeal at that time. In particular, he does not seek to adduce the relevant witness statements to achieve either of the impermissible objectives to which the Court of Appeal referred. He has identified a number of other purposes to which he argues no objection can be taken. For one thing, he wishes to refute assertions in the evidence of Mr. Dorsey, who describes a meeting with an unidentified diplomatic source. He claims that the source told him things about the monitoring of certain bank accounts, but Mr. Price submits that he should be allowed to introduce these statements to show that the conversation simply cannot have gone as Mr. Dorsey suggests. He says also that there is nothing in GKR inconsistent with his taking that course.

In order to understand the Claimants’ case in this context, it is necessary to refer briefly to passages in two of the Defendant’s witness statements. First, I go to a passage in that of Mr. Dorsey: “The US diplomat told me that the US had two weeks earlier distributed a new list of 140 names world-wide, including to Saudi Arabia, that included four Saudi charities and eight businesses . . . Asked whether accounts of Abdul Latif Jameel were being monitored, the diplomat briefly consulted his file again and said, ‘Yes’”.

Next, I go to paragraph 20 in the statement of Mr. Glenn Simpson: “Fifteen months have passed since the publication of the article. I am today convinced that it was accurate.”

Against that background, Mr. Price summarised his case in his skeleton argument at paragraph 38 as follows: “(1) This is not a GKR Karate -v- Yorkshire Post [2000] EMLR 396 case. These statements are not introduced for the purpose of showing what further checks would have shown, or to undermine the objective reliability of the Defendant’s sources. It is introduced to rebut Mr. Dorsey’s account of what occurred. The Claimants’ case is that Mr. Dorsey either misunderstood the position or his memory is at fault for the reason that what he says took place cannot have occurred. In very short summary, the evidence that the US diplomat was privy to the relevant discussions between the US authorities and SAMA, and that his file relating to the matter contained documents showing that the bank accounts of, among others, the ALJ Group were being monitored, cannot be right because it is affirmatively established that the accounts were not being monitored. If permitted, we would also wish to put these statements to some of the Defendant’s witnesses in the proper manner in cross-examination to challenge the witnesses’ evidence that the matter - in particular, the naming of names - was really of pressing public interest.

“(2)

They support the Claimants’ aggravated damages claim. It is particularly hurtful for the First Claimant that the Defendant has refused, and continues to refuse, to apologise for, or retract, these very serious allegations when, as the Claimants wish to prove, the falsity of the central allegation in the article has been conclusively shown to the Defendants from the horses’ mouths. In this context it is important to bear in mind that the evidence from the Governor of SAMA, Hamad Al Sayari, authoritatively refuting the allegations is part of a nexus of denials stretching back to the evening of the date of publication of the article complained of when the First Claimant was so concerned that he spoke to Al Sayari on the telephone, and which includes the press release issued by SAMA shortly afterwards.

“The Claimants wish to invite the jury to contrast all of this evidence with the offensive response to the Claimants’ solicitors’ complaint sent by the Defendant’s in-house lawyer on 21 February 2002 in which he effectively suggested that no-one should believe anything any Saudi official might say (see in this regard the second witness statement of Mohammed Jameel at paragraphs 6 and 9 to 10).

“(3)

They rebut the Defendant’s contention in paragraph 20 of the witness statement of Glenn Simpson, if that paragraph is permitted to remain, that the article was accurate - a matter on which Simpson professes himself to be convinced.”

I need to remember that where journalists are entitled, as a matter of law, to protect their sources there can often arise real practical difficulties for claimants seeking to challenge, test, or rebut a defence of qualified privilege based on the criteria set out by Lord Nicholls in Reynolds -v- Times Newspapers Ltd. [2001] 2 A.C. 127. It is obvious that where the source, or sources, cannot be identified, the tests for establishing social or moral duty on the one hand, and public interest on the other, become, to say the least, elusive. It is thus important to recognise that claimants must be permitted to probe and test the defendant’s case, including the evidence of any relevant journalist in cross-examination, with such thoroughness and vigour as is compatible with not revealing the source.

There is always a risk that anonymous sources will acquire, in the eyes of a jury, an aura of saintliness, wisdom, or infallibility when they are not permitted to take on human form, especially having regard to the natural tendency of journalists to buff up the quality of their character or experience - for example, by using the standard description for anonymous sources, which is “impeccable”. In such circumstances there is room, potentially, for injustice if the claimant is not permitted to introduce evidence capable of casting doubt on the accuracy of the journalist’s evidence, or the reliability of his source of information. Here, in particular, it would be unfair to force the Claimants to rest upon the law’s presumption that the words are false when Mr. Simpson, far from admitting inaccuracy, is reasserting the truth of his story with such vehemence. The impression could easily be given to the jury that the Claimants are being allowed to claim vindication under the protection of a legal technicality.

I am accordingly persuaded by Mr. Price that his submissions do not fail to honour the principles identified by the Court of Appeal in GKR Karate. The statements he wishes to introduce would be directly relevant to rebutting evidence to be given by Mr. Dorsey, and by Mr. Simpson, and to supporting the case on aggravated damages. How much weight is to be attached to them, and especially if the witnesses do not attend in person, is a matter for submissions to the jury. But, as a matter of principle, it seems to me that such statements are relevant and admissible.