Abbas v Shah

This is an action for libel in which the claimant complains of allegations that he has been violent towards women, including in particular his former wife, Saleha. The action is now fixed for trial by judge alone, commencing on 2^nd March 2015, and this is the pre-trial review. The majority of the directions remaining to trial are agreed in principle, subject to the application by the defendant which I now have to address. That application seeks permission to amend the Defence. The defendant wishes to plead to the defamatory meaning alleged by the claimant but, more significantly, to plead a defence of justification. I refer to justification because the date on which the alleged libel was published means that the relevant defences are those that existed at common law and not the new statutory defences created by the Defamation Act 2013. The defendant also seeks to plead certain matters in mitigation.

/01’213142546%7’5889:;56:<4’:7’<88<712’<4’=10593’<3’601’;95:>546’<4’601’ grounds that it is a new case raised after unacceptable delay, which is inadequately pleaded and inadequately supported by evidence.

The background is as follows. The claimant was until May of this year a councillor in the London Borough of TowerHamlets. In 2010 he was the Labour candidate for the position of Mayor in the election of that October. At that time the defendant was the editor of the London Bangla, which is a weekly free newspaper published online and in print in Bengali and English in the Borough of TowerHamlets.

The publication complained of took place in the London Bangla of 15^th October 2010. It consisted of an article and advertisement which told readers that a rally against domestic violence was to take place in TowerHamlets <?@54:712’=A’BC?:1427’<3’&59105DE’6<’B76<8 wife beating mayoral candidate *1959’F==57DG’’/01’;95:>546%7’;<>895:46’:4’60:7’5;6:<4’:7’6056’60<71’H<?27E’ together with the other words in the article and advert, meant and were I421?76<<2’6<’>154’6056’01’B052’5’0:76<?A’<3’;<>>:66:4@’J:<9146’5775I967’<4’ H<>14’;9<71’6<’0:>E’542’:4’85?6:;I95?’<4’0:7’3<?>1?’H:31E’&59105’F9:GD

On 18^th January 2011, Miss Ali made an affidavit in which she referred to allegations against her husband that he had been violent towards her during their marriage, which lasted from 1986 to 1995. She said that she was aware of 52J1?67’=1:4@’895;12’=A’54’<?@54:756:<4’76A9:4@’:67193’BC?:1427’<3’&59105DE’ accusing her former husband of being violent to her during the marriage. She said:

On 10^th October 2011, this libel action was brought. Criminal proceedings were also brought by the Crown Prosecution Service against the defendant over the same publication under the Representation of People Act 1983. In those proceedings the defendant put in a defence case statement dated 2 February 2012 in which he said at para.1:

The defendant went on to say that he took reasonable steps at the time to authenticate the veracity of the allegations. His defence was summarised at para.2 of the defence case statement in these terms:

The defence case statement referred to a number of individuals who had been consulted by the defendant regarding the allegations of domestic violence, and who had confirmed their belief in the same, and gave the names of five individuals.

Default judgment in this action was entered in favour of the claimant on 12^th January 2012, but set aside in June of that year on the basis that the CPS had elected to discontinue criminal proceedings against the defendant. The claimant consented to the setting aside of that judgment, and directions were given for the service of a Defence on 22^nd November 2012.

The defendant then made an application for third party disclosure against the )O&’542’K7’F9:E’711N:4@’;<8:17’<3’K7’F9:%7’>12:;59’?1;<?27G’/056’5889:;56:<4’ was adjourned on a number of occasions, and in the end pursued only against Ms Ali. Ultimately it was dealt with on 4^th March 2014 by Tugendhat J, who dismissed it. He did so on the basis that it was premature because the defendant had not pleaded a defence of justification in this action, and he was not 81?7I5212’6056’:6’H57’9:N19A’6056’601’2:7;9<7I?1’H<I92’7I88<?6’601’213142546%7’ case or adversely affect that of the claimant, even if the defendant had pleaded a defence of justification. Tugendhat J recorded at [23] that a witness statement had been made by Ms Ali on 21^st February 2014 in which she said she had never understood herself to have been a victim of domestic violence, that her medical records were very private, and that she had asked her GP to review the records and had been told that there was no note of her complaining of any physical violence during her marriage or after divorce or at any time.

/I@142056’P’4<612’6056’601’213142546%7’21314;1’;571’76561>146’:4’601’;?:>:459’ proceedings was an adequate plea of a Reynolds defence to a libel action (responsible publication on a matter of public interest), and could stand as his defence in this action. On 18^th March 2014 the defendant filed as his Defence in this action his defence case statement from the criminal proceedings together with a supplemental Defence document dated 18^th March 2014. The supplemental document contained an account of the investigations that had been undertaken by the defendant prior to publishing, and said in para.7, in a 85775@1’<4’H0:;0’K7’QI>5?’<4’601’213142546%7’=10593’?19:17E’6056’<4’RS^th October 2010:

The claimant filed and served a Reply on 1^st April 2014, which began in this way at para 1:

Defence dated 18March 2014;

Defence case statement dated 2 February 2012.

Given the reference to the second defendant I should mention that at that time there was a first defendant in the form of London Bangla Limited, which is no longer a defendant to the action.

Directions were given by the Master on 29^th July 2014, with provision for a three day trial of what was then clearly understood to be a Reynolds public interest defence. Disclosure was then given, but witness statements were not exchanged on the due date according to 601’K5761?%7’2:?1;6:<47E’542’76:99’05J1’ not been. The parties will be ready, I am told, to exchange on 23^rd January, and on that basis the trial date can be maintained, subject to this application.

What happened instead of exchange of witness statements was that alternative dispute resolution was attempted, but it failed, and it ended on about 28^th November 2014. On 3^rd December 2014, the defendant instructed Sahota Solicitors, and on 11^th December they issued the application notice that is now before the court. That application notice attaches draft amendments to the Defence. An explanation is given in the application notice. This refers to the late instruction of solicitors. It is said that the pre-trial review and the trial can still be effective. At para.10 of the application notice, by way of evidence, it is asserted that:

The essential features of the draft amendments are as follows. First, new paras.10 and 11 are proposed in which issue is taken with the alleged meanings or meaning of the words complained of, and reliance is placed on the full context. It is specifically denied that the words mean that the claimant has a history of committing violent assaults on women close to him.

Para.12 pleads a defence of justification. The first three sub-paragraphs of that paragraph set out three meanings which the defendant will set out to prove true. These are meanings ge41?599A’N4<H4’57’XLucas Box%’>154:4@7G’/01A’ include the allegation that the claimant is a wife beater. The remaining eight sub-paragraphs of para. 12 set out particulars of justification. Paragraphs (iv), (v) and (vi) deal with the statement of a Detective Sergeant Adam Keeble, which is said to record admissions by Ms Ali relating to domestic violence. At (vi) and (vii) of the particulars, it is said that hearsay evidence will be relied on to support the truth of such admissions, and a list is given of witnesses who will be relied and who, it is said, will say that they were told from various sources that Ms Ali was the victim of domestic violence perpetrated by the claimant. The list overlaps with the list given in the defence case statement in 2012.

At paras.(viii) and (ix) the pleader says that inferential evidence arises from the fact that the CPS dropped the criminal charges against the defendant on the ground that medical evidence disclosed to the prosecution by Ms Ali undermined their case. Reference is made to the failed attempts to obtain disclosure from Ms Ali, but it is averred that the inference can be made, even H:60<I6’2:7;9<7I?1E’6056’601?1’H57’7<>160:4@’:4’K7’F9:%7’>12:;59’?1;<?27’ which supported the dropping of the criminal charges.

At (x) these words appear:

At (xi) it is alleged that there was an incident of common assault involving a lady called Ms Lilian Collins in January 2002, as it turns out. Paragraph 13 refers to suggestions of anger control problems, and suggests that the claimant has been guilty of aggression and abuse towards at least one other woman, other than his former wife. Paragraph 14 seeks to rely on extinction or >:6:@56:<4’<3’25>5@17’<4’87A;0<9<@:;59’5=I71’<3’K7’F9:E’?131??12’6<’57’B>14659’ 6<?6I?1D’:4’01?’:461?J:1H’H:60’+&’Q11=91E’:3’6056’:7’599’6056’:7’1765=9:7012G’’,4’ para.15 it is suggested that, if mental torture is established, that is as bad as physical abuse:

A witness statement of the defendant prepared last night is now relied on. It seeks to explain the delay in putting forward this defence in ways already indicated in the application notice. It is said that the defendant was a litigant in person and unaware of the proper course of pleading a defence accurately until he told advice from Sahota Solicitors. He says he was overwhelmed by the criminal charges and proceedings, and matters were delayed by the third party disclosure application, which took a lot of time, and he could not afford legal advice.

The defendant then sets out to show that he has sufficient evidence to support the plea of justification that is put forward. He says:

/01’H:64177’76561>146’<3’+&’Q11=91’6056’:7’1]0:=:612’6<’601’213142546%7’ statement is dated 22^nd February 2012, and it records interviews that DS Keeble had with Saleha Ali on a number of dates starting on 17^th December 2010. On that date he says:

+&’Q11=91%7’76561>146’@<17’<4U

The 7^th January 2011 is ten days before the date of the affidavit made by Ms Ali to which I have already referred.

For the defendant, Ms Kumar has submitted that the proposed amendments do 4<6’;054@1’601’17714;1’<3’601’213142546%7’;571’542’70<I92’4<6’65N1’601’;95:>546’ by surprise. That submission I reject. It is quite clear to me that the defence case statement did not assert that the allegation of wife beating was true, but rather put forward a case that it was reasonably believed to be true by the defendant. Equally, the supplemental Defence document put forward in March 2014 does not state clearly or at all that the defendant will assert the truth of the allegation of wife beating of which complaint is made. It is perfectly plain

Whether or not the defendant intended in his own mind to put forward a defence of justification by means of either of those documents I do not have decide, but what I can conclude is that he did not make clear to the claimant or his advisers that there was any intention to put forward that defence. So I am satisfied that the claimant has not so far prepared to meet a defence of justification but only one of Reynolds privilege. There is, of course, a significant difference between the two. As Mr. Price points out on behalf of the claimant, a Reynolds defence focuses on the conduct of the defendant in

As to the delay in putting forward the proposed defence, the material on which the draft Amended Defence is based is not new by any means, as will be apparent from what I have already said. It is clear from the defence case statement and other materials before me that the defendant had most, if not all, of the information and material upon which the amendments are based as long ago as February 2012, and some of it much sooner than that. The lateness of the application is explained, as I 05J1’:42:;5612E’<4’601’=57:7’<3’601’213142546%7’ status as a litigant in person, the confusion caused by the criminal charges, and the delay of his third party disclosure application. I am bound to say that I find that rather surprising in the light of the correspondence, and the evidence that this defendant has produced previously in this litigation, which demonstrates an intelligent and capable mind, which is not surprising on the part of someone who was the editor of a weekly newspaper.

,4’54A’1J146E’>A’566146:<4’057’=114’2:?1;612’6<’601’)<I?6’<3’F88159%7’21;:7:<4’ in Tinkler v. Elliott [2012] EWCA Civ 1289, where at para.32 Kay LJ observed as follows:

I therefore conclude that this is, as submitted on behalf of the claimant, a new case put forward at a late stage without adequate explanation or justification for the delay.

It is submitted on behalf of the defendant by Ms Kumar that the claimant would suffer no prejudice if this amendment were allowed to be made, and that the trial date could be maintained with little change to the evidential picture, given that the witnesses on whom reliance will be placed for the purposes of justification are, to a large extent, the same witnesses on whom the defendant would have relied and would rely in support of his defence of Reynolds privilege. It has been made clear on behalf of the defence that the application for third party disclosure against Ms Ali would not be renewed so that the trial date would not be threatened.

Mr. Price for the claimant was unable to point to any specific prejudice or to assert positively that the trial date would be lost or threatened if the amendment was allowed. He said he simply could not tell at this stage whether it would be 8<77:=91’6<’8?185?1’0:7’;9:146%7’;571’:4’6:>e for the trial date if the amendment were allowed. It seems to me that there may be some risk of prejudice to the trial date, but not one that can be crystallised in any concrete way at this stage. In those circumstances, it would be wrong to put too much weight on the lateness of the amendment, the inexcusable delay in putting it forward, and the potential prejudice to the claimant.

I turn to the principles that I should apply. CPR 17 governs the power to allow amendments to statements of case. The discretion granted under that rule has to be exercised in accordance with the overriding objective of course. However, the court will only permit amendments which comply with the established rules of pleading, and should not allow an amendment if it appears to the court that the proposed case has no real prospect of success. Those considerations may have greater weight if the amendment is made at a late stage.

Historically, the court has often taken the approach that amendments to statements of case, provided they comply with the rules that I have referred to, should be allowed, as long as any prejudice to the opposite party can be compensated in a costs. A case cited by Ms Kumar in support of that proposition on this application is the well known case of Cobbold v. The London Borough of Greenwich, decided on 9^th August 1999, in which Peter Gibson LJ said this:

Ms Kumar also refers to the case of Proetta v. Times Newspapers for the proposition that if permission to amend is refused where a defendant has failed to set out his real case in his previous pleadings, there must be some measure of injustice to the defendant.

There is, however, another strand of authority highlighted by Mr Price which is more consonant with the modern approach to litigation and is exemplified by the case of Swain-Mason and others v. Mills & Reeve [2011] 1 WLR 2375. There, the Court of Appeal reversed a decision of Peter Smith J to allow the claimant to amend to his case at the start of what would have been the trial. The headnote gives the gist of the decision. It reads as follows:

The Court cited with approval the unreported Court of Appeal decision of Worldwide Corpn v GPT Ltd (2 December 1998). At para.70 of Swain-Mason Lloyd LJ said:

As the court said, it is always a question of striking a balance. I would not accept that the court in that case sought to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. That would be too dogmatic an approach to a question which is always one of balancing the relevant factors. However, I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.

A point which also seems to me to be highly pertinent is that, if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know from the moment that the amendment is made what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the rules.D

At para.85 of Swain-Mason the court dealt with the Cobbold case, which had =114’;:612’6<’601’WI2@1’=19<HG’’,6’H57’0192’6056’601’WI2@1%7’?19:54;1’<4’H056’ Peter Gibson LJ had said in !"##"$%&’ case was mistaken and wrong in law, though understandable because of the limited citation to him. It is clear from the Swain-Mason case that in the instance of very late amendments which threaten the trial date, the approach set out in Cobbold is not the one to be taken.

These statements of principle are consistent, in my view, with some long established principles relating to late amendments in defamation cases. As long ago as 1970 Lord Denning MR observed in Associated Leisure v.

The present case involves a late but not a last-minute application. There are two and a half months to go before trial, albeit some of that time is taken up by the vacation. It may well be that the trial date could be maintained if a properly pleaded case could be presented at this stage, and the matter presented efficiently over the coming weeks and months. I am prepared to proceed on the basis that there is only a limited degree of threat to the trial date and, whilst some prejudice would undoubtedly be suffered by the claimant if an amendment was allowed, it does not seem to me likely that the trial date would be put at risk. However, the application is made at a late stage when the trial is not far off, and has been unjustifiably delayed. The authorities I have cited do make clear that at a late stage an amendment must be pleaded to the full in an adequate manner, in such a way as to make clear to the claimant what the case is that he has to meet. Further, the ordinary principle that the court will not allow an amendment which appears to have no real prospect of success must apply just as much to a late amendment as one made early on in the litigation.

So far as pleading principles in defamation cases are concerned, they are very well established. In Ashcroft v. Foley [2012] EMLR 32, the Court of Appeal said at [35] as follows:

As to the need to plead proper and sufficient particulars, the requirements are set out in Gatley on Libel and Slander (12^th Ed) para.27.11, where this is said:

Finally, s.5 of the Defamation Act 1952 provides as follows:

I turn to apply those principles to the draft Amended Defence in this case. There is no objection taken to the defendant now pleading a denial of the ;95:>546%7’8915212’>154:4@E’57’:7’2<41’:4’8?<8<712’85?57GR\’542’RRG’’/01’ controversial aspects begin when it comes to the Lucas Box meanings in paras.12(i) to (iii). As to those, again there is relatively little controversy. At the core of those meanings is the allegation that the claimant was a wife beater. That is plainly a meaning the words are capable of bearing, and one which, in principle, it is legitimate for the defendant to defend as true. The remaining words in paras.(i), (ii) and (iii) do not, in my judgment, assist the defendant in establishing a defence, because they seek to defend meanings of which the claimant does not complain. Accordingly, even if they are meanings which the words are capable of bearing, it seems to me unnecessary and potentially confusing to leave them in place in this defence, and that the defendant would lose nothing of value by the elimination of all the words in the Lucas Box particulars except for those that allege that the claimant was a wife beater.

Turning to the particulars of justification, it is necessary to consider whether these contain statements of fact which are sufficiently clear and precise as to enable the claimant to know what the case is that he has got to meet, which are relevant, adequate to support the plea of justification, and have a real prospect of success.

I deal first with the alleged admissions to DS Keeble. The key pleaded allegation here is in para.(v).

A number of things can be said about this pleading. First, this is an allegation against the claimant of criminal offences against his ex-wife, but it is as vague and indeterminate as it is possible to be. No detail is given of what form of violence is alleged to have been used, when, where or under what circumstances. It is impossible to see how the claimant can be expected to deal with that in any way other than by denying that he was guilty of any violence against his wife at any stage, which would be a denial of a completely general kind. It is perfectly clear that that is his position.

Secondly, the pleading also levels an accusation of falsehood against Ms Ali. When one realises that she has made an affidavit stating that she was not the victim of any domestic violence it is apparent that this is, or may be, an allegation of perjury against her. She has also made a witness statement to similar effect, of course. Those, therefore, are extremely serious allegations which are lacking in any detail at all.

Thirdly, the sole basis for these allegations at this point in the pleading is the statement of DS Keeble. The defendant exhibits this statement as the material supporting his proposed Amended Defence. There is no evidence before me to suggest that the defendant or his lawyers have approached this officer to obtain any further or better evidence from him, if indeed he was able to provide any. /01’213142546%7’;571’:7’6056’601’3:?76’<3’601’85?5@?5807’,’05J1’_I<612’5=<J1’ implies that Ms Ali told DS Keeble that whilst she had never been to hospital due to violence she had reported domestic violence to her GP. However, when the statement is examined and looked at as a whole it is perfectly clear that the officer is not saying that any allegation of domestic violence of a physical nature was made to him by Ms Ali. Indeed, he is positively saying that no such allegation was made, and that on the contrary he was repeatedly told by Ms Ali that there had been no violence. The witness statement does not support the 8915212’;571E’:6’;<46?52:;67’:6G’&<E’<3’;<I?71E’2<’K7’F9:%7’533:25J:6’of January [\R[E’>521’70<?69A’5361?’+&’Q11=91%7’76561>146E’542’K7’F9:%7’H:64177’ statement of 21 February 2014.

In conclusion, this section of the particulars of justification appears to me to be no more than a repetition of the alleged libel, coupled with the allegation that a supporting statement was made by Ms Ali to a police officer in 2010; but when looked at, the evidence of the police officer is not supportive of that case, which is clearly unsustainable. As Mr. Price observed, if that witness statement was put in as the evidence-in-chief of DS Keeble, he would not cross-examine the officer and there would be no evidence capable of supporting a finding such as the defendant seeks to invite.

I turn to the hearsay evidence. As I have said, para.(vii) of the particulars of justification identifies five witnesses, plus the defendant, who will give hearsay evidence and say they were told that Ms Ali was the victim of violence. The first point to make about this is the one already made: there are no details whatever of when this is supposed to have happened, where and how, or in what circumstances.

Secondly, this paragraph needs to be read with para.(x) which, as I have already stated, says that there is no direct eye witness evidence of physical violence being inflicted on Ms Ali by the claimant. It is an inevitable inference from what appears on the face of the draft pleading, therefore, that these witnesses cannot have heard of this violence either directly or indirectly from an eye witness, unless it was Ms Ali herself, which is not suggested. So what one is confronted with here on the face of it is hearsay rumour evidence and not evidence of fact. Such evidence could form part of a defence of Reynolds privilege, but cannot be legitimate in support of a defence of justification.

If the obvious inference that I have identified from the pleading were wrong, it would be a simple matter to demonstrate, by showing the court witness statements of the individuals concerned, that the position was otherwise. That has not been done, although I have been told that some fresh witness

What I 05J1’=114’70<H4E’=A’601’;95:>546%7’7:21E’5?1’601’76561>1467’>521’3<?’ the purposes of the criminal proceedings by four of the five witnesses, other than the defendant, that are named in the draft Amended Defence. Without going into the detail of them, it is perfectly plain from those that, as things stood at that stage, the evidence the witnesses were able to give was hearsay 1>5456:4@’3?<>’I4:2146:3:12’:42:J:2I597’5=<I6’601’;95:>546%7’=105J:<I?’ towards his wife. To put it another way: mere rumour. Those statements do nothing to assist the defendant or to undermine the conclusions that seem to follow from the face of the draft statement of case. Nor could evidence of this N:42’70<?1’I8’601’213142546%7’;571’=5712’<4’601’76561>146’<3’+&’Q11=91G

As for the inferential case about the medical records that is pleaded in paras.8 and 9 of the draft amendment, those paragraphs could not stand on their own as a sufficient plea of justification. It seems to me that the pleaded inference clearly cannot be sustained on the material that has been identified to me. Tugendhat J was not persuaded when he looked at the material before him that it was likely that disclosure of medical records would support a plea of justification even if there were one. That is wholly unsurprising given the February 2014 statement of Ms Ali to which Tugendhat J referred. No fresh evidence has been produced on this application and, as I have said, it is accepted that there would not be a further application for third party disclosure against Ms Ali even if the amendment were allowed.

The allegation that the claimant committed a common assault on Ms Lilian Collins at a Labour Party meeting in 2002 might perhaps, at a stretch, have been relevant by way of bad character evidence in support of an allegation of domestic violence if there had otherwise been a sufficiently pleaded and sustainable case at this late stage, but it clearly cannot stand as a particular of justification by itself.

As to the attempt to rely on psychological abuse or mental torture by way of mitigation of damages, that appears to me to be illegitimate because it is an allegation other than one which is made in the words complained of. Neither side suggests that the words complained of convey an allegation that the claimant subjected his wife to psychological abuse or mental torture.

The attempt to rely on s.5 of the Defamation Act 1952 appears to me to be misconceived, because this is not a case in which there are even arguably two distinct allegations, one of which could be proved by way of justification of the totality.

For those reasons, I 2:7>:77’601’213142546%7’5889:;56:<4’3<?’81?>:ssion to amend, save in so far as it seeks to put forward a case in relation to meaning in paras.10 and 11.