Jameel & Anor v The Wall Street Journal Europe Sprl

One outstanding matter from the trial relates to evidence which Mr Robertson QC wished to introduce on Day 7 on the Defendant’s behalf relating to a Texas company called Infocom, which at one stage hosted a number of websites including that of the Jameel group. Having heard submissions in the absence of the jury, I ruled against this application and said that I would give reasons later, as I did not wish to keep the jury waiting any longer. The primary objection was on the basis of irrelevance. Secondarily, I was asked in any event to rule that the application was simply too late and that, if granted, it would lead inevitably to prejudice and unfairness since the Claimants were not in a position to deal with the point without notice in the middle of the trial.

Mr Robertson wished to adduce the evidence for the purposes of suggesting why the mere fact of the group’s having had its web site hosted by Infocom might have made it a subject of interest or suspicion for law enforcement agencies in the United States. Mr Robertson was at pains to point out that there was to be no suggestion that the Claimants’ involvement with Infocom was other than quite innocent. He therefore rightly anticipated that one objection raised would be that the effect of his application would be to introduce a plea of justification in mid-trial and, what is more, such a plea as would only go to a non-defamatory meaning.

The argument was to the effect that the Defendant should be allowed to introduce material to demonstrate that Infocom had been raided by the Federal Bureau of Investigation in 2001 and that other bodies, mentioned in the offending article of 6 February 2002, such us Al Rajhi Banking and Dallah Al-Baraka, had also had their websites hosted by Infocom. Thus, there was clearly a risk of prejudice through creating the impression that there was guilt by association and/or a "rogues’ gallery".

Mr Robertson argued nonetheless that the allegations should be admitted by reason of the unusual circumstance that the Claimants had been permitted, both at first instance and in the Court of Appeal, to introduce evidence of the falsity of the defamatory allegations – despite the absence of a plea of justification and the consequent presumption that the words were false. They were allowed to take this course, at least in part, so that they could have the opportunity of showing that they were not being monitored at the request of SAMA and indeed that they were not on any list submitted by the United States government to the Saudis with a request for monitoring.

The context was a plea of qualified privilege, based on the principles expounded in Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127, and in particular upon allegedly reliable information in the Defendant’s possession based on no less than five separate and high quality sources with whom the journalist, Mr James Dorsey, had been in direct contact in Saudi Arabia. As Mr Dorsey and the Defendant were fully entitled, they refused at any stage to reveal the identities of the sources in question (who were referred to throughout the trial as A to E respectively).

As I have already observed, any claimant confronting a plea of qualified privilege in a case where the defendant declines to identify the relevant sources, is inevitably placed at a serious disadvantage when it comes to testing the status of any such source or the quality of his information. This was one of the factors I bore in mind when granting permission to the Claimants, in the first place, to rely upon hearsay evidence from banking witnesses (some of whom in the event gave evidence in person). In the light of that evidence, the Claimants would then have the opportunity to argue that, since the Claimants were not being monitored as the article alleged, the allegations made by Mr Dorsey’s sources must have been inaccurate or, alternatively, he must have misunderstood them. The jury might then be disinclined to believe on the balance of probabilities that Mr Dorsey was told, or could have been told, that Jameel group accounts were being monitored as the article alleged.

Mr Robertson therefore sought to argue that what was sauce for the goose should also be sauce for the gander and, by the same token, the Defendant should be given the opportunity to demonstrate the "possibility" of the Abdul Latif Jameel group of companies being on such a list as the article described (albeit for reasons that were not discreditable or defamatory).

If there was evidence to show that they were on such a list, that might well be admissible to justify a defamatory meaning, relating e.g. to "reasonable grounds for suspicion". Yet this was clearly eschewed by Mr Robertson as being a reason for introducing the Infocom material. To show the mere possibility that the Jameel group might have been on such a list seems to me to be irrelevant to any issue. It would be merely speculative in nature although, as I have already accepted, having a real potential for creating a climate of prejudice against the Claimants.

For the purposes of qualified privilege, a defendant is fully entitled to introduce evidence of what its journalists had been told prior to publication and as to why the public was supposed to have had a right to that information. I do not believe that it was suggested that any of Mr Dorsey’s sources referred to Infocom. Nor was Infocom a topic mentioned in the defamatory article of 6 February 2002. It is now sought to introduce it into this litigation, almost two years afterwards, and in my view impermissibly, for the purpose of boosting retrospectively the credibility of what Mr Dorsey says he was told by his unidentified sources.

Secondly, there was great force in the discretion or "case management" argument. It was obvious that to introduce such material in the middle of the trial would open a can of worms, which the Claimants would not have any chance of researching or addressing effectively without being given a proper opportunity to do so. Even if, contrary to my primary finding, the material should be accorded some degree of relevance, its significance in the overall scheme of the case was so marginal that the inevitable prejudice to the Claimants, and the need for an adjournment to prepare to deal with it, completely outweighed any legitimate advantage to the Defendant. (If I had granted an adjournment, obviously the jury would need to be discharged.)

I should perhaps address additionally a few miscellaneous points canvassed in argument.

It is perhaps worth observing that the stance now adopted by the Defendant (i.e. that any involvement with Infocom on the Claimant’s part was completely innocent) does not sit comfortably with the acknowledgment in the article that the involvement of those on the supposed list might actually have been "witting" (as opposed to unwitting).

An argument was advanced to the effect that the Claimants had "effectively gone behind" the reasons why they were permitted to introduce evidence from SAMA and from the Saudi bankers (as explained in the Court of Appeal). I am afraid I fail to understand this argument, which was raised for the first time in a skeleton argument dated 10 December 2003. No objection had ever been raised in respect of any of the statements made on the Claimants’ behalf in the course of the trial as "going behind" the Court of Appeal’s reasoning. This tends to confirm my own clear impression that the conduct of Claimants’ case with regard to the banking evidence was entirely consistent with the permission granted.

It was said, for example, that Mr Price QC had in opening (i.e. a week before the skeleton argument was put forward) referred to the hearsay banking evidence as being to the effect that the story in the newspaper (i.e. of monitoring) was not true. Later, he also referred to the possibility that Mr Dorsey had misunderstood what his sources told him. I cannot see that either of these passages in Mr Price’s opening in any way "went behind" the reasons for admitting such evidence. The point is in my view misconceived. Moreover, as I have indicated, the fact that it only surfaced on Day 7 suggests that no perception of injustice had occurred to the Defendant’s advisers when Mr Price’s comments were made (on Day 2).

I thus rejected the application to introduce the new material on the basis of its irrelevance and, in any case, I would have refused it in the exercise of my discretion because it would have taken the Claimants by surprise, and it would not have been possible to give them a proper opportunity of dealing with it without an adjournment. There would otherwise have been a significant risk of unfairness and injustice.