Al Baho & Ors v Meerza

These libel proceedings seem to form part of a wider struggle in which the parties are engaged, embracing also proceedings in the Chancery Division and in Kuwait. Hitherto the Claimants appear not to have been well served by their lawyers. This may have been at least a significant factor in the inefficient conduct of the claim so far.

On 28 October 2011, I heard an application on the Defendant’s behalf to strike the claim out under CPR 3.4. This had been adjourned on 20 October because the Claimants and their most recently instructed legal team were not ready to respond, notwithstanding that they had been given notice in early August. I gather that the previous solicitors had made an application, without notice, to be taken off the record three days earlier. Since the adjournment, however, the new team has worked hard to take the case in hand and Mr Pettican was able to explain a good deal of the background and to represent his clients’ interests in resisting the strike out application.

The claim form raised a number of defamatory publications, the majority of which were by that stage statute barred. There is no need to go into the detail because Mr Pettican has indicated that he now wishes to pursue only the claims arising from two emails, dated respectively 20 and 30 October 2009. Since the proceedings were only begun on 29 October 2010, it is clear that even the first of these is statute barred, but I am asked to exercise the court’s discretion to disapply the limitation period so far as the 20 October 2009 email is concerned (although there has been no formal application to that effect).

The publication of the emails was extremely limited, so far as I understand, being confined to one recipient in Kuwait. She is the sister of the Third Claimant and has been referred to throughout as Sheika Hind. The subject-matter of the emails consists in allegations of dishonest misappropriation regarding the estate of their late father. The thrust of these is that the Claimants have sought to cheat the beneficiaries out of part of their entitlement. The Third Claimant is thus accused of cheating her fellow beneficiaries (including her sister). That is plainly seriously defamatory and there is an allegation that it has inter alia caused or contributed to much ill feeling within the family. Against this background, it seems at first blush strange that there should be an application based on abuse of process and a submission that there has been “no substantial tort”.

Reliance is placed by Ms Mansoori on the Defendants’ behalf on the Court of Appeal decision in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, but each case must depend on its own facts and abuse cannot be established, in the light of the doctrine expounded in that case, merely on the basis of limited publication. Much will depend on the nature of the defamatory allegation concerned, the identity of the publishee(s), how seriously the allegation was taken and the extent to which it has genuinely impacted on the relevant claimant’s reputation. It is also to be borne in mind, in this case, that the Defendant is seeking to justify these serious imputations as true. Mr Pettican submits, in these circumstances, that it would be extremely unfair for his clients to be deprived of the opportunity of defending themselves.

In addition to the plea of justification, there is what appears to be a strongly arguable defence of qualified privilege, in that the Defendant claims to have communicated with the publishee in Kuwait on her instructions and as her representative for these purposes within this jurisdiction. (He is resident in London and there is no suggestion that he has not been properly sued here.) There was no plea of malice contained in the draft reply when belatedly served last summer, but Mr Pettican says that his clients do wish to allege malice on the basis that the Defendant was financially motivated. He claims to be entitled to a commission of £300,000 (which forms the subject-matter of his Chancery claim). It is said that he knows perfectly well that none of the Claimants was involved in anything dishonest.

Even by the time the matter was argued before me, however, there was still no amended reply in draft indicating how the plea of malice is to be formulated, but that is largely due to the incompetence of previous lawyers rather than the lack of a genuine desire on the part of the Claimants to challenge the plea of qualified privilege on that basis. I must take this into account, and it seems to me that (subject to any question of costs) they should not lose that opportunity of addressing the real issues on their merits. I hasten to add, however, that I cannot give final approval, since no draft particulars of malice have been formulated. As and when they have been, it is possible that they will come under challenge for some reason.

I will set out each of the relevant emails as pleaded. The 20 October 2009 email was sent at around 9.17 a.m. to Sheika Hind and was in these terms:

“Respected Ladies, As salaam O Alaikum, It was both a pleasure and a shock to speak to you yesterday. After our conversation I am now certain that your eldest sister conspired with Tareq Al-Baho to defraud your entire family. Mr Hussain Sajwani in agreeing to make two separate payments has also broken the law in this country by effectively not paying the correct taxes to Her Majesties Revenue and Customs (HMRC). It is also obvious that the solicitors acting for both Tareq Al-Baho and Mr Hussain Sajwani are complicit in aiding and abetting fraud on a grand proportion.

I am taking this opportunity to send you my witness statements and also the witness statements of some of the other individuals involved. Mr John Alexander is a key person in this case and he is a very honest and reputable gentleman who has known Tareq for at least three years. Mr Alexander tried to warn your eldest sister that Tareq was trying to ‘steal’ a large amount of money from the sale of the apartments, but your sister was not interested! John Alexander contacted your sister by email and by phone but she was not interested to pursue Tareq … it is now obvious as to why this was!

It should also be mentioned that Mr John Alexander also spoke to Hussain Sajwani’s wife to warn her about the ongoing fraud but she too refused to put a stop to it!

You will notice from the witness statements that I am taking legal action to recover the commission that is rightfully due to my business partner Mr Mohssen Mehra and I. It should be pointed out to you that Mr John Alexander spent £87,000 (Eighty seven thousand pounds) of his own monies to set up the legal structure to help in the sale of the apartments. Tareq Al-Baho had promised to pay all these sums back as soon as the apartments had been sold. In addition John was also offered a commission of at least 2% if he had introduced the buyers. In the end John and us [sic] were defrauded by Tareq Al-Baho.

Please read all the information that I am sending to you and then I would suggest that you report your sister, Tareq Al-Baho and Mr Sajwani to the police for theft and fraud. If you wish I can assist you to report the fraud to the Police in this country as well.

It is very important that you should get a copy of the ‘Solicitor’s’ bill for £170,000. I am sure that this is also a fraud and must have been conducted by either Tareq, or the two solicitors involved!

My name is Asad Meerza and you already have my telephone numbers. I will do anything possible to help your family, so please do not hesitate to contact me at any time.

Regards

Asad Meerza”

The second email dated 30 October 2009, which was just within the limitation period, was timed at about 2.09 p.m. and again addressed to Sheika Hind. It was in these terms:

“Further to our telephone conversation you should ask your Kuwaiti solicitor to instruct the British solicitor so that they can inform the relevant authorities that Mr Al Baho has siphoned monies from the sale of the apartment into his own possession. There is definite proof of this because the apartments were worth at least £2.75 millions and John Alexander had a cash buyer for this amount, but Tareq persuaded Mr Hussain Sajwani to make two payments and he only gave £1.9 millions to your sisters and siphoned the remainder into his company BCL, which also had trustees in Gibraltar. John Alexander wrote an email to warn your sister what Tareq was doing, but she was not interested.

The British Solicitors will report the fraud that Tareq has committed to the Police and it is possible that Tareq could be imprisoned. Tareq has clearly stolen from your family and it is essential that you stop him and his solicitor Andrew Pinnell plundering the rest of your inheritance.

Regards

Asad Meerza.”

The meanings pleaded are to the effect that the First and Third Claimants had conspired to commit, and had committed, a deliberate and large-scale fraud against the Kuwaiti Royal Family by means of “embezzlement of monies” from the sale of the apartments at Porchester Gate (which had formed part of the deceased’s estate), said to be properly due to the corporate vendors and/or the Kuwaiti Royal Family, and that the Second Claimant, Andrew Pinnell, had knowingly aided and abetted that fraud.

Mr Pettican argues that the court should exercise its discretion in respect of the earlier publication, on 20 October 2009, for a number of reasons, including the following:

I see the force of these points, although I believe it would be premature to disapply the limitation period without giving Ms Mansoori the opportunity to deal with the issue on notice. Of course, if the matter can be dealt with by consent without the need for a further hearing, so much the better.

I reject the application based on abuse of process. There is a “real and substantial tort” (subject to any defences), although published to only one person. That person is, of course, a “victim” of the alleged wrongdoing and the sister of one of the Claimants. The allegations were thus likely to cause significant reputational damage.

The issues of justification, qualified privilege and potentially also malice need to be tried in order to resolve genuine disputes of fact. For example, the Claimants do not accept that the Defendant had the status or relationship with Sheika Hind that he claims. They also challenge his motivation for communicating with her.

I do not accept that the Chancery proceedings are necessarily going to give all the Claimants the opportunity of vindication and they are, in any event, under the control of Mr Meerza. That is not to say that there might not be good reason to stay one or other of the cases pending an outcome in the other. There may be considerable savings in cost, but no such application is before me at the moment.

Also, I believe that Mr Meerza and the court are entitled to be kept informed as to what is going on in the Kuwaiti litigation. If that is truly a libel action, or equivalent, and it is concerned with the same issues, then one or other must be stayed to avoid duplication.

There is also the question of foreign law. If a claim is brought in England in respect of a publication abroad, it is necessary to consider the effect of the double actionability rule. So far, I have no evidence as to the law of defamation in Kuwait. On the other hand, it was asserted (not surprisingly) in the course of submissions that there are significant differences. In particular, the point was made that although a report to the Kuwait police would probably be regarded as the subject of absolute privilege in English law, that would not be the case under the law of Kuwait. Be that as it may, if there is to be a dispute about the applicable law in relation to either of the relevant emails, there may be a need for directions as to the obtaining of expert reports or other rulings.