Suresh v Samad & Ors (Rev 1)

The clamant in this libel action applies for judgment on liability against each of the first three defendants on the basis that they have not pleaded, and/or do not have, any viable defence to the claims. He seeks to strike out their defences and/or summary judgment on his claims.

The claimant is represented by solicitors and Counsel. Each of the first three defendants represents himself, as has been the case for most of these proceedings, including the time when their defences were prepared and filed. There is no appearance by or on behalf of the fourth defendant.

The claimant’s application was filed nearly five months ago now. Its hearing has been delayed by procedural wrangling and by the defendants’ late service of evidence in July 2016, resulting in an adjournment of some three months.

Last week, the first, second and third defendants filed a cross-application seeking, among other things, permission for additional statements of case which the first and second defendants filed without permission in March 2016. It will be convenient to consider that application at the same time as I address the claimant’s contentions that the defences disclose no reasonable defence and/or have no real prospect of success.

The defendants’ cross-application also seeks judgment against the claimant, on two grounds. The first is default in compliance with procedural directions. For reasons I shall explain later, I dismiss that application. The second ground on which the defendants seek judgment is that this “is a charity matter and not of a personal nature, thus it has no real prospect of success”. That, as will become apparent, is clearly misconceived.

About ten minutes before I came into court to hear these applications I received a skeleton argument from the third defendant and, from the first and second defendants, substantial skeleton arguments and a lever arch file of documents described as “Exhibits”. This represented a further significant failure by all the defendants to comply with the applicable procedures. So far as the first and second defendants are concerned, it involved the submission of yet further late evidence. Needless to say, it was highly inconvenient and left me no time to read or absorb any of the material in advance of the hearing. I was not given any satisfactory explanation for the lateness of the material.

Nevertheless, and over the understandable objections of Mr Santos, I thought it right in all the circumstances to have regard to such of the material as the first defendant was able to point me to in the course of the hearing. One factor in my decision to do so was the undesirability of granting a claimant summary judgment in a libel case concerning issues of some public interest, if others might reasonably think that unrepresented defendants had been given anything less than a full and fair opportunity to put forward arguments and evidence in defence of the claim.

The claim arises from a dispute about education in the Tamil community in West London. It concerns allegations about the management of a charity called the Oriental Fine Arts Academy of London (“OFAAL”). The claimant sues as Chairman and a trustee of OFAAL. OFAAL is closely associated with the West London Tamil School (“WLTS”), which is also a registered charity. Each of the first and second defendants is the parent of a student at the WLTS. The second defendant is also a former OFAAL trustee and a secretary of the WLTS. The third defendant is a former student at the school.

In 2014 OFAAL had developed plans to open a school of its own. Parents and others associated with the WLTS were concerned, and a protest took place on Saturday 20 September 2014. The claimant seeks damages and other remedies in respect of two videos (“the First Video” and “the Second Video”) showing those protests. The videos are said to have been posted and published on Youtube on and after 20 September 2014, posted and shared on Facebook on and after that date, and republished on a number of third party websites over the following months. The defamatory imputations which the claimant attributes to the videos can be fairly summarised in this way: that he (1) defrauded OFAAL of some £23,000 by writing a cheque to a non-existent, dissolved company; (2) defrauded OFAAL of some £480,000 of the charity’s money, spending it on himself; (3) refused to answer legitimate questions about his misconduct; and (4) engaged in nepotism, by appointing cronies, to help him avoid scrutiny. The claimant alleges that the publication complained of caused serious harm to his reputation, and provides detailed particulars in support of that contention.

There is no dispute that the first and third defendants appear and speak, in English, in the First Video: the third defendant can be seen and heard to interview the first defendant on camera. There is no dispute, either, that the second and third defendants appear and speak, in Tamil, in the Second Video. Again, the third defendant plays the role of interviewer; the second defendant is the primary interviewee. The claimant’s case is that each of the defendants was responsible not only for the creation of each of the videos but also for publishing them on Youtube. The posting on Youtube is said to have been done by a person going by the name of ‘Niyayam Enge’. That is the name used to describe the fourth defendant to this claim. It is however the claimant’s case that this is no more than a pseudonym adopted by the third defendant. And he contends that all three defendants played a role in bringing about the Youtube publication. The claimant further complains that the third defendant shared each video on his personal Facebook page. In support of his case on serious harm the claimant alleges republication on another Facebook page titled “Justice for West London Tamil School at OFAAL” and six other third party websites.

The claim was issued on 18 September 2015, just within the limitation period. Defences and counterclaims were filed by the first and second defendants on 15 November 2015. A reply and defences to the counterclaims were filed by the claimant on 17 February 2016. On 8 March 2016 the first and second defendants each filed further documents called “Reply and Supporting Evidence to Particulars of Counterclaim”, which included a response to the claimant’s Reply. I shall call these documents “the Rejoinders”. As for the third defendant, he initially failed to defend and default judgment was entered against him. This was set aside, after which, in April and May 2016, he filed three defence statements culminating in a “Final Defence Statement” dated 16 May 2016. The claimant filed a Reply to these documents on 1 July 2016.

On the same day, the claimant filed the application notice that is now before me, seeking an order striking out the defences filed by each of these three defendants on the grounds that they disclose no reasonable grounds for defending the claim (CPR 3.4(2)(a)); alternatively, for summary judgment pursuant to CPR 24.2 on the grounds that, on the evidence, the defendants have no real prospect of succeeding at a trial, and there is no other compelling reason why the claims should be disposed of at a trial.

For the purposes of this judgment, it is enough to cite the following key passages from the words complained of in the Particulars of Claim. For ease of reference later I have used underlining, italics and bold text to emphasise some key words and passages.

The claimant pleads that in the course of the First Video the first and third defendant point the viewer at a sign stating “OFAAL FRAUD EXPOSED. £23,807.04 PAID TO BINGLEY TRADING LTD A DISSOLVED COMPANY.” It is pleaded that during the Second Video the third defendant points the camera at various signs bearing slogans, among them “£480,000 IS MISSING FROM OFAAL CHARITY” and a reference to “swindlers”.

The claimant also relies on text accompanying the First Video on the Youtube webpage, referring to “questions regarding previous governing board’s talking from OFAAL and Tamil school” which the “old governing board has refused to answer. The text goes on to state that “Nearly £500,000 in 10 years has been hidden from the accounts … One fraudulent cheque was paid to a company in 2011 which was dissolved in 1996…”

The defence filed by the first defendant is not in the form it would take if prepared by a lawyer. It is non-compliant with the rules of pleading in several respects. The first defendant’s Rejoinder was filed without the permission required by CPR 15.9 (“A party may not file a statement of case after a reply without the permission of the court”). Hence the first defendant’s application for permission to rely on the Rejoinder. It seems to me that the right way to approach that application is to treat it as, in substance, an application for permission to amend the defendant’s case, and to treat the Rejoinder as material which I should consider as I address the parties’ contentions about the pleadings and the merits.

On analysis the first defendant’s defence and Rejoinder appear to raise the following five issues: (1) Responsibility for publication; (2) Reference to the claimant; (3) Meaning; (4) Serious Harm; (5) Truth. The defence of truth is not expressly raised in the defence. But it was indicated in that document, and is expressly raised in para 2 of the Rejoinder. The first defendant’s counterclaim alleges that the claimant has made false accusations against him in the past on several occasions. But the first defendant says that since this is a charity matter he claims only his costs.

The second defendant’s defence and Rejoinder look very much like that of the first defendant and follow very much the same format, raising the same five issues in the same or similar words. The second defendant also counterclaims, but in his case the counterclaim is pursued. It complains of libel in an email of 24 September 2015 alleged to have been published by the claimant and fellow “purported” trustees of OFAAL to “all teachers” at WLTS, referring to “a group of criminals”. The claimant defends the counterclaim, taking issue with its viability in several respects, and relying on the affirmative defences of qualified privilege and honest opinion. The second defendant also appears to complain of the bringing of this action, and to seek compensation for that. If the claimant’s application were to succeed, that part of the counterclaim would seem doomed to fail. But the merits of the counterclaims are not otherwise my concern, on these applications.

The third defendant’s three defence documents and his skeleton argument raise, on analysis, the following issues: (1) Responsibility for publication on Youtube. He admits sharing both videos on his own Facebook page but denies being the creator of the videos, being the Youtube user named as fourth defendant, or posting the videos on Youtube; (2) Serious harm; (3) Innocent dissemination; (4) Public Interest; (5) Truth. These last three issues are raised under headings using the language of s 1 of the Defamation Act 1996 and ss 2 and 4 of the Defamation Act 2013. However, as Mr Santos points out, the content of the statements of case does not obviously or easily fit with the contours of those defences. There is a passage in one of the third defendant’s defence documents which suggests a counterclaim, but in the course of argument he has stated that he does not wish to make any counterclaim.

CPR 3.4 permits the court to strike out the whole or any part of a party’s statement of case. The claimant’s attack is made pursuant to CPR 3.4(2)(a), on the grounds that the defences “disclose[..] no reasonable grounds for … defending [the] claim”. This calls for consideration of the statements of case alone, rather than any evidence. For this purpose any facts asserted in the statement of case are assumed to be true. But a defence which fails to deal with an allegation discloses no basis for defending that allegation. Equally, as explained in PD3A 1.6, a defence will fall within r 3.4(2)(a) if it “consists of a bare denial or otherwise sets out no coherent statement of facts” or if “the facts it sets out, while coherent, would not even if true amount in law to a defence of the claim”.

CPR 16.5 contains rules about the contents of a defence. Rule 16.5(1) requires a defendant to state in his defence which allegations he denies, admits, or requires the claimant to prove. Rule 16.5(2) requires him to state his reasons for denying an allegation. Rules 16.5(3) and (5) provide, so far as relevant, that if a defendant “fails to deal with an allegation [he] shall be taken to admit that allegation” unless he has “set out in his defence the nature of his case in relation to the issue to which that allegation is relevant”, in which case he is taken to require it to be proved.

The pleading of substantive defences in defamation claims is governed by the Part 53 Practice Direction which contains these relevant provisions:

“2.5

Where a defendant alleges that the words complained of are true he must –

(1)

specify the defamatory meanings he seeks to justify; and

(2)

give details of the matters on which he relies in support of that allegation.”

To spell out the meaning to be defended as true is a crucial aspect of the pleading process. Only then can the claimant know the “charge” he has to meet. Only then can the court check that the charge is a relevant one (in the sense that the words complained of are capable of conveying it), and one that is capable of being proved by the pleaded details. Those details “must be both sufficient and pleaded with proper particularity … enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it”: Ashcroft v Foley [2012] EMLR 25 [49].

These are general rules, which apply regardless of the nature of the allegation which is defended as true. When it comes to pleading a case of fraud there are well-established principles. A defendant is required to “spell out exactly what it is that the claimant is supposed to have done” (Aschroft v Foley [52] (Pill and Sharp LJJ)) and to give particulars of the dishonest state of mind alleged (Radu v Houston [2007] EWHC 398 (QB) [12] (Eady J)). See also Karpov v Browder [2014] EMLR 8 [124] to [137] (Simon J). The defendant in a defamation case who pleads the truth of an allegation of fraud is not, however, subject to the full rigour of the rules that apply to pleas of fraud in other contexts: Stocker v Stocker [2015] EMLR 24 [25]-[26].

The Part 53 Practice Direction also sets out the requirements for pleading honest opinion (para 2.6). The PD does not yet specify what must be set out in order to advance a defence of public interest under s 4 of the Defamation Act 2013. But the statute itself specifies what a defendant must prove and hence, by necessary implication, the bare minimum that a defendant must plead. Section 4(1) provides that:-

“It is a defence to an action for defamation for the defendant to show that—

(a)

the statement complained of was, or formed part of, a statement on a matter of public interest; and

(b)

the defendant reasonably believed that publishing the statement complained of was in the public interest.”

As a matter of common sense, and standard practice, a party pleading that he reasonably believed something to be the case will need not only assert that he believed it and that his belief was reasonable, but also to specify the facts on which he relies to sustain the allegation that the belief was a reasonable one. This general principle is reflected in para 2.7 of the Practice Direction, dealing with a plea of privilege. This requires the defendant to “specify the circumstances he relies on in support of that contention”.

The Court may give summary judgment against a defendant on the whole of a claim or a particular issue if the defendant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why the case or issue should be disposed of at trial. A real prospect is one that is not fanciful, but carries some conviction. The test, however, is not one of probability but unreality: Three Rivers DC v Bank of England [2003] 2 AC 1.

The relevant principles of defamation law are clear. I shall identify them as I deal with each issue. But I should say three things. First, in my judgment it is not necessary on a summary judgment application such as this for the court to reach definitive conclusions on every factual contention advanced by the claimant. It is open to the court to grant summary judgment on individual issues, even if not on liability. Further, the court may find for a claimant on an issue, such as publication, meaning, or serious harm, even if it is not possible to be certain without further enquiry as to the precise scale of publication, or there is room for argument about the precise defamatory meaning, or the precise extent of the serious harm. Those are matters that can, in an appropriate case, be left for determination at the remedies stage.

Finally, Mr Santos helpfully draws attention to the Court of Appeal’s recent reminder that the court should only grant summary judgment on a defence of truth if satisfied that “no reasonable fact finder could conclude that proof of the particulars of justification would prove the truth of the words complained of in the meaning found by the Judge.” Simpson v MGN Ltd [2016] EWCA Civ 772 [18] (Laws LJ).

The case against and for each defendant must be considered separately, and I shall take the defendants’ cases individually, in turn; but there are obviously some overlaps. Moreover, in proceedings such as these, where at least one party is unrepresented, the court must “have regard to” that fact when exercising any powers of case management: CPR 3.1A(2). The impact of this requirement upon the Court’s approach will vary from case to case. In this instance, I propose to reflect these points in three ways. One is that without disregarding pleading points, I will seek to avoid undue reliance on anything that could sensibly be viewed as a mere technicality.

Secondly, when deciding whether there is any realistic prospect of a successful defence, any compelling reason for a trial, and how to exercise any discretion, I shall have regard to all the points of defence that have been raised by the defendants collectively, whether or not a particular point has been pleaded or raised by the particular defendant whose case I am considering. Thirdly, when considering any of those issues I shall also ask myself whether the defendant whose case I am considering might have any other line of defence or any other evidence available to him, whether or not that line of defence or possible evidence has been put forward or suggested coherently by that defendant or by a co-defendant.

The claimant’s application is supported by a statement of his solicitor and one made by the claimant himself. Shortly before the application was due for hearing earlier this year the first and second defendants served substantial witness statements in reply. The hearing was adjourned. The claimant has since filed four statements in reply: one of his own, and three supporting statements. As I have noted, the first and second defendants filed a lever arch file of further documentary evidence on the day of the hearing. The third defendant has not filed any evidence. At the hearing, all three defendants have made submissions or representations on the facts. These have gone beyond the boundaries of their written evidence. But some of that was at my request. I have taken all of it into account.

It is convenient to consider first of all the five matters that a claimant must establish in order to make out a cause of action in libel against any defendant: that the words complained of were published, that the defendant is responsible for their publication, that the words referred to the claimant, bore one or more meanings defamatory of him, and that their publication caused serious harm to his reputation. If there is a real prospect that the claimant’s case on any of those issues might fail against any defendant, I should not enter judgment on liability against that defendant. Nor should I grant judgment on the disputed issue in question. But it is open to me to grant summary judgment on one or more issues, if I conclude that there is no real prospect of the defendant succeeding on such issue(s).

The fact of publication is clearly and distinctly alleged in the Particulars of Claim, which set out the words and images of which complaint is made, and also contain clear allegations as to the extent of publication. The Particulars aver that the First and Second Videos were both first posted on Youtube on 20 September 2014, and that both remain there to date. Since 5 February 2015 access has been denied to users who are logged into their Youtube account and it is set to the United Kingdom. Other users can however gain access. The claim, as Mr Santos has confirmed, is limited to publication in this jurisdiction, but users here can gain access to the videos if they are not logged into an account or if they are, but their account is not set to the UK.

To the date of the Particulars of Claim the First Video is said to have been viewed 4,202 times on Youtube. The evidence is that to date it has been watched 4,493 times. The Second Video is alleged to have been viewed 2,473 times on Youtube to the date of the Particulars, and the evidence is that it has been viewed 2,562 times so far. The Particulars invite the inference that the majority of the viewers are members of the West London Tamil Community and persons concerned with OFAAL. Nothing is said to gainsay that inference, which is plainly a reasonable one.

The first defendant’s defence fails altogether to address the issue of publication. It follows that by virtue of CPR 16.5 he is “taken to admit” what the claimant alleges. This is not merely a technicality. The first defendant has not raised any issue about this issue in his evidence, or in his argument on these applications. His focus has been entirely on other points. The claimant’s pleaded case, and his evidence, are uncontradicted. He is bound to succeed on this issue. There is no reason, compelling or otherwise, to leave this issue for resolution at a trial. The precise scale of publication can be determined – so far as necessary - in the context of a remedies hearing, if liability is established.

I summarised the applicable law in Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), [2016] QB 402 [15]:

“(1)

It is an essential element of the cause of action for defamation that the words complained of should be published ‘of the [claimant]’”: Knupffer v London Express [1944] AC 116, 120. This does not mean the claimant must be named. The question is whether reasonable people would understand the words to refer to the claimant:

“The test of whether words that do not specifically name the [claimant] refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the claimant to believe that he was the person referred to?”

David Syme v Canavan (1918) 25 CLR 234, 238 (Isaacs J).

(2)

This is an objective test. If the words would be so understood by such people it is not necessary for the claimant to prove that there were in fact such people, who read the offending words; so an individual defamed by name in Cornwall has a cause of action even if he was unknown in that county at the time of publication: see Gatley on Libel & Slander 12^th ed para 7.3; Multigroup Bulgaria Ltd v Oxford Analytica Ltd [2001] EMLR 28 [22] (Eady J) cited with approval in [Jameel v Dow Jones [2005] EWCA Civ 75, [2005] 1 QB 946] at [28].”

I have underlined the many uses of the word “they” or “their” in the First and Second Video. These are plainly and obviously references to the Governors or trustees of OFAAL, of which the claimant was one. The first defendant’s defence says this about reference: “The Claimant is simply making assumptions and stating that my comments in the videos refer to the Claimant. This is pure speculation.” He goes on: “Since these matters are directly related to the charity, I have only made general reference to the Governors of OFAAL, and no specific personal reference made to the Claimant”. This is not true, as can be seen from the words cited above. Indeed, the first defendant concedes in the very next sentence of his defence that in his interview he made “reference to the claimant by name as he is one of the signatories … on the cheque.”

The contention that the first defendant made no reference to the claimant reappears in the Rejoinder, which says that “As for the £480,000, it is denied the First Defendant has made any reference to the Claimant.” The proposition that the claimant was not referred to because he was not named is misconceived. So is the suggestion that a reference to the Governors generally is not a reference to the claimant. The claimant was one of the Governors, and that is a small group. A reasonable person knowing the claimant would plainly take the words complained of in the First Video to refer to him. The first defendant has no real prospect of defending this element of the claim, and there is no good reason to defer a decision on the issue to a trial.

The Second Video also plainly refers to the claimant, albeit his name is not used. I reach that conclusion on the basis of the Second Video itself. It is all the clearer if, as Mr Santos suggests, one considers the two together. That may have been how many viewers saw them, but not all; the viewing figures for the First Video are much higher.

The principles are clear. The classic formulation is that of Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130, [14]:

“(1)

The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question... (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation" (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.”

The key words are those I have placed in bold in the quotations above.

All that the first defendant says about the issue of meaning in his defence is that “the Claimant is simply making the assumption and speculating that those comments made by myself were understood to mean the Claimant.” This is little more or less than repetition of the first defendant’s argument in relation to reference. It does not address in any meaningful way the proper interpretation of the videos’ content. Nor has the first defendant addressed any, or any cogent argument to this issue in his Rejoinder, or his evidence, or his skeleton argument, or his oral arguments at the hearing.

Meaning is an issue capable of swift and straightforward resolution in many cases. It may be convenient on an application of this kind to invite the court to decide meaning as a preliminary issue of fact, whatever the outcome of the application for summary judgment may be: see, for instance, Simpson v MGN Ltd [2015] EWHC 77 (QB) [4]. But no application for that purpose has been formally made, and in all the circumstances I decline the invitation issued by Mr Santos in the course of argument to decide the issue of my own initiative. The defendants are not represented, and are entitled to time to consider their position on the point. It is in any event unnecessary to resolve the actual meaning of the words at this stage.

I am able to and do find that the words complained of in the First Video could not be found by any reasonable tribunal of fact to bear meanings less serious than these: that there were at the time of publication reasonable grounds to suspect the claimant of having (1) used a fraudulent cheque to steal some £28,000 of charity money from OFAAL; (2) defrauded the charity of a further £480,000; (3) refused to answer legitimate questions about these matters; and (4) made nepotistic appointments to help him cover up his wrongdoing. Those are meanings at “Chase” level 2 (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11). They are plainly defamatory in their tendency. The meanings which the Second Video is capable of bearing are of a substantially similar nature and minimum gravity. I also conclude that the videos are clearly capable of bearing the meanings complained of by the claimant, which are essentially the corresponding meanings at Chase Level 1 (that is to say guilt rather than reasonable grounds to suspect).

These conclusions on meaning are arrived at on the basis of the words used in the videos themselves. They are arrived at independently of the text that accompanies the First Video, and independently of the wording on the banners at which the camera is pointed during the two videos, although those words lend further support to my conclusions.

A statement is not defamatory merely because it bears a meaning with a tendency to cause substantial harm to reputation. That is, in essence, the common law test. But by s 1(1) of the Defamation Act 2013 a statement is not defamatory “unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” This means a claimant must also prove as a fact, on the balance of probabilities, that serious harm to reputation has been or is likely to be caused. This may be done by evidence or by inference, or a combination of the two. In this case the claimant relies on both. His case is set out in detail in paragraph 17 of the Particulars of Claim, over fifteen sub-paragraphs.

It is unnecessary to review the entirety of this pleading. It is enough to say that it relies on the seriously defamatory nature of the imputations complained of, the likelihood that they would deter people from dealing or associating with the claimant personally and professionally, the scale of publication, republication on third party websites, and sharing on social media. The claimant relies also on the reaction of others as shown on the videos, and a variety of adverse responses he says were expressed towards him and members of his family. All of this is supported by the claimant’s evidence.

On this topic the first defendant’s defence says as follows: “I was not responsible for the publication … Thus, none of the words complained of apply in this respect.” He goes on to make particular reference to one of the fifteen particulars of serious harm, but what he says on the topic does not appear to me to have any real bearing on the merit of the claimant’s case on that issue. He says nothing at all about any of the other particulars of serious harm. His Rejoinder does not add materially to his case. Nor has the first defendant paid any real attention to these issues in his evidence, his skeleton argument, or his submissions at this hearing.

It is entirely clear in my judgment that the claimant would be bound to succeed at a trial on the issue of whether his reputation was caused serious harm by the publication of the videos and each of them. The contrary argument would be fanciful. The claimant’s case comfortably crosses the serious harm threshold. Quite how far his case goes beyond that threshold will be a matter for the court to consider at a remedies hearing, if the claimant succeeds on the other issues in the case, and establishes liability.

The claimant’s pleaded case is that the defendants were “jointly and/or individually responsible for the publication of the First and Second Videos”. The basis for that contention is that they “each spoke, composed, participated in, secured and/or authorised the publication of the words complained of”. Particulars are set out in support of that case, over six paragraphs. At the core of the case against the first and second defendants is the proposition that each participated in the creation of the recordings in the knowledge or with the intention that “the video recordings would be published online to as many publishees as possible”. It is pointed out that each of them was interviewed by the third defendant, who is said to have been the cameraman as well. The interviews are alleged to have been filmed in this way as part of an “orchestrated” public demonstration. A corresponding case is advanced against the third defendant, who is said to have “conducted and recorded” the interviews “with a view to then publishing the video recordings online … to as many publishees as possible”.

The first defendant’s defence confronts this case directly. He pleads (in paragraph 23 of his un-numbered pleading) that “I did not publish or caused to be published a Youtube video recording” (sic) and (in paragraph 30) that “I was not responsible for the publication or the cause of publication of the First and/or the second Videos”. This latter assertion is repeated several times thereafter. The defence contains a statement of truth. Mr Santos criticises this as bare denial, which does not engage with the details of the case set out by the claimant. There is some force in this. But it cannot be said that the defence fails altogether to deal with the allegation of responsibility for publication. Moreover, the Rejoinder goes a little further. In it (at paragraph 31.8) the first defendant denies making preparations for a demonstration. He says he “just turned up” on 20 September, and did not “make preparations for a demonstration”; and he gives an account of another parent pulling up in a car and handing out placards. There is a case for saying that the first defendant should be ordered to give further detail of the reasons for his denial of responsibility; but I do not consider it can be said that the defence (taking into account the Rejoinder) discloses no reasonable grounds for resisting the claim.

The first defendant’s evidence does not go any further on this issue, nor has he dealt with it in his skeleton argument. But in the course of his submissions at this hearing he has explained his case further: he told me he did not orchestrate the demonstration or the recording. He said a number of people were recording events at the time. He also pointed out that upon complaint being made his then lawyers wrote back stating that he did not publish on Youtube and, accurately, that he had made requests to Youtube to remove the material.

Mr Santos concedes that for present purposes he cannot gainsay the third defendant’s denial that it was he who recorded the videos. It may therefore have been someone else. The claimant accepts in his witness statement that it “may be true” that the first and second defendants did not upload the videos to Youtube. So does his solicitor. The third defendant denies uploading the videos and Mr Santos cannot show that this is bound to be disbelieved at a trial. Mr Santos submits nonetheless that in all the circumstances it is an irresistible inference that the recordings were deliberately organised and that the defendants each participated in the Youtube publication in such a way as to make them legally responsible for that publication. Mr Santos likens the process to the preparation and making of a broadcast, using Youtube.

I do not agree. I am not at all sure that Mr Santos’ reliance on Berezovsky v Russian Television and Radio Broadcasting Co [2010] EWHC 476 (QB) is apt. It is not clear that this was akin to an outside broadcast by a TV channel, or that the role played by this defendant was similar to that of an interviewee on a terrestrial TV channel. Video recording needs little preparation under modern conditions. The first defendant’s case that his role in the creation of the recordings was entirely spontaneous is questionable, but not plainly and obviously untrue. In this, as in other contexts, there may be no bright line between pre-meditation and spontaneity. Even if it were clearly established that the recording was something carefully planned and organised in advance, it still would not follow that the process was one of preparing material for “broadcast” using Youtube. There is obvious force in the argument that the recording was not made for private viewing. That argument is supported by internal evidence, including in particular the opening words of the First Video, which I have italicised in the quotations above. But there are many ways of making videos public, and many kinds of audience that may be targeted. One is bound to wonder who else it was that placed the videos on Youtube, and how that came about, if not with some participation by at least one of the defendants. But there were evidently many people involved in the protest. I am not satisfied that the claimant would be bound to establish at a trial that this defendant planned and intended or authorised the dissemination of his own interview - let alone the Second Video, in which he played no apparent part - to the public at large via Youtube. Whether that is so is a triable issue.

This is a statutory defence. A person only needs this defence if he is responsible for publication, by the ordinary common law test. The defence has been raised by the third defendant, and only by him. I have nonetheless considered whether it might be available to the first defendant. My conclusion is that there is no real prospect that it would.

The defence was enacted by s 1 of the Defamation Act 1996 which states, so far as relevant, as follows:-

1.

- Responsibility for publication.

(1)

In defamation proceedings a person has a defence if he shows that—

(a)

he was not the author, editor or publisher of the statement complained of,

(b)

he took reasonable care in relation to its publication, and

(c)

he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

(2)

For this purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in subsection (3)—

“author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all;

“editor” means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and

“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

(3)

A person shall not be considered the author, editor or publisher of a statement if he is only involved—

…;

(b)

in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the statement;

(c)

in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, …

In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.

…

(5)

In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to—

(a)

the extent of his responsibility for the content of the statement or the decision to publish it,

(b)

the nature or circumstances of the publication, and

(c)

the previous conduct or character of the author, editor or publisher.”

The first defendant, if found responsible for publishing the videos on Youtube, could not prove that he was not the “author, editor or publisher” of the statement complained of within the meaning of s 1. He plainly was the author of the words he spoke, and he plainly knew that he was being recorded. No basis has been suggested, nor can I see any, on which this defendant could be held responsible for publication at common law and yet be held not to be an “author” or “editor” within the meaning of s 1, or both. In any event, the first defendant clearly could not hope to persuade a court that he “did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.” He was right not to seek to rely on this defence. It is not designed for those playing the roles which this defendant played, or is alleged to have played, in the dissemination of the offending statements in this case.

The first defendant’s defence is not at all satisfactory on this score. It clearly does set out to suggest that there was some factual basis for what was alleged in the interview about the £28,000 cheque, but it says nothing at all about the larger alleged fraud of £480,0000. It fails to state clearly whether the defence of truth is being advanced at all and, if so, what meaning or meanings is or are to be defended as true. It also fails to make clear what facts are to be relied on in support of any defence of truth. The Rejoinder improves the position a little. It does at least specify (at paragraph 2) that “the First Defendant will … be relying on the defence of Truth under section 2 of the Defamation Act 2013 ...” It also addresses the £480,000. But he Rejoinder still fails to make clear what defamatory meaning(s) the defendant proposes to defend as true, or to set out clearly the basis on which he proposes to do so. It says this (at paragraph 16): “It is estimated, based on the number of students who sat and passed the OFAAL exams, using the fees applicable at the time, over a number of years, less the income declared, falls short of what was expected, and thus the estimation for the differences.” The Rejoinder refers to a number of “evidences”, but these include matters such as the letter written by the first defendant’s former solicitors on 27 April 2015. That letter refers to the first defendant having raised “legitimate issues” which he was entitled to raise, but it does not assert the truth of any identifiable defamatory imputation.

This material does not, individually or in combination, come close to an adequate pleading of the defence of truth. Still less can it pass muster as a plea alleging the truth of allegations of fraud. My clear conclusion is that neither the defence nor the Rejoinder sets out reasonable grounds for defending the claim on the basis that the words complained of were true. The threshold requirements of CPR 3.4(2)(a) are met, and the defence could not be saved by the incorporation of what is said in the Rejoinder. I add that this aspect of the defence is also liable to be struck out under CPR 3.4(2)(b) and (c) on the further grounds that it fails to comply with PD53 2.5 and tends to obstruct rather than assist the just disposal of the claim.

Pleading deficiencies are common in defamation cases and, as Mr Santos has very properly pointed out, it is well-established that in an appropriate case, the court may adjourn an application to strike out a defence to give the defendant a final chance of pleading in accordance with the rules (Morrell v International Thompson Publishing [1989] 3 All ER 733),or grant the application while allowing a further opportunity to recast the pleading (Ashcroft v Foley [2011] EMLR 30). I propose to take the second course.

There is much to be said for Mr Santos’ argument that the defendants have already been given ample opportunity to plead their cases adequately. Detailed letters criticising their defences were sent on 29 June 2016, inviting them to compromise or have another go at pleading their cases. They did not take either course. Making every allowance for the fact that the defendants are acting in person, I have a good deal of sympathy with the complaints of Mr Santos about the way they have handled this litigation. I am a long way from concluding that it is likely that a fresh attempt at pleading a tenable case will succeed. But I have been persuaded that they should be given a last opportunity. I will lay down clear ground rules for the format any such attempt must take, and I will scrutinise with care anything that is produced. As for the summary judgment application, the claimant has presented a cogent and powerful case but I will adjourn that application so far as this issue is concerned. The defendant will be given an opportunity, at the same time as he reformulates his defence, to put in further and better evidence. At present his evidence is enough, but only just enough, to persuade me to grant him more time.

I take this course on the following basis. First, the claimant has made clear that the nub of his claim lies in the first and second defamatory meanings complained of. That seems right to me. If those were defensible, the other matters might not count for much if anything. Secondly, when questioned by me the first defendant indicated that he would wish to defend as true, if necessary, an allegation that the claimant was guilty of fraudulently paying out the £23,000 or most of it. Thirdly, there is evidence that the claimant signed a cheque drawn on an account of OFAAL in the sum of some £23,000 in favour of a company registered in the British Virgin Islands, with which the claimant is associated. The claimant maintains that the payment was made by way of reimbursement of expenses incurred on behalf of the charity which had been discharged by him, using the company’s debit card. It is said that the accounts do not disclose expenses in the sum in question. The claimant’s response is that the sum can be arrived at by totting up a number of smaller sums. All of this may be entirely proper, but I am not yet satisfied that there is no prospect at all of a substantive defence to the claim in this respect. Fourth, there is the larger “fraud”. The defendants’ case on this point was unclear until the hearing, when the first defendant explained it, by reference to his late skeleton argument and its “Exhibits”. The explanation came as news to me and, I believe, to Mr Santos. I do not think it unfair to summarise the gist of the case put forward in this way: that the claimant was involved, or there are reasonable grounds to suspect him of, “skimming off” a large proportion of the fees payable to OFAAL by its foreign and domestic examinees. The case is evidently based on a comparison between estimated fee income and figures to be seen in the charity’s accounts. The estimates appear to be based on information provided by former OFAAL trustees. This all appears thin and speculative as it stands. But I am not persuaded that there is no real prospect of the first defendant being able to formulate a cogent defence, with some prospect of success on this score. With some hesitation I have concluded that it is appropriate to enable that possibility to be explored further, on both sides.

With similar hesitation, I have concluded that there may be a real prospect that the first defendant could plead a viable defence of public interest, with some real prospect of success at a trial. This is not a defence referred to in any way in the first defendant’s defence, or in his Rejoinder. But it is referred to in the defence statements of the third defendant, and there are passages in the defences and Rejoinders of the first and second defendants that in some ways suggest elements of such a defence. I have therefore given some thought to the possibility that this defence might be pleaded and advanced with some prospect of success.

It seems to me clearly arguable that the question of whether charity funds have been misappropriated by those entrusted with custody of such funds is a matter of public interest. Mr Santos did not press any argument to the contrary. Doing my best to cut through the fog of detail, much of it irrelevant, it appears to me that the defence case may include (1) an assertion that this defendant (and the others) were doing no more than expressing honest and legitimate concerns that the claimant had or may have engaged in such misappropriation, and (2) a claim that they were doing so reasonably, to an appropriate audience with a legitimate interest in the subject-matter, and in the information itself.

The first defendant has certainly asserted, not only in the words complained of but also in his defence and his evidence, that the claimant and his fellow trustees have refused adequately to respond to legitimate questions about the charity’s funds and accounts. That might perhaps be a basis on which to assert a public interest justification for making the questions or criticisms known to a wider audience. An adequate plea of public interest would require more than generalities such as these. The elements of the defence would need to be pleaded clearly, with supporting detail. Precision would be required, with specific documents and events of relevance identified. In the short time available to him to respond to this expanded case, Mr Santos pointed out with some cogency that the evidence does not seem to reveal any questions being raised with the claimant, before publication, about the alleged cheque fraud or the allegedly missing £480,000. All things considered however, I conclude that the best course is to allow the first defendant a further, though final opportunity to put his case in order.

In the course of his submissions the first defendant referred to honest opinion. Nothing is pleaded that could be interpreted as stating a defence of honest opinion. The defence does not disclose any grounds for defending the claim on that basis. Nor does the Rejoinder. The only question that can arise, therefore, is whether there is any real prospect that such a defence could be successfully advanced in this case, even though it is not pleaded. At present, I cannot see any. I do not see that the key words complained of could be considered to be expressions of opinion.

When it comes to the issues of publication, reference, meaning, and serious harm, the position of the second defendant is indistinguishable from that of the first defendant. Each of them is sued in respect of the Youtube publications, and only those publications. For the reasons I have given when dealing with the first defendant’s case I consider that the second defendant’s defence and Rejoinder disclose no reasonable grounds for defending the claim on any of those issues, and that the claimant is entitled to summary judgment on those issues as between him and the second defendant.

In my judgment, however, the second defendant has pleaded a defence to the claimant’s case that he was responsible for the Youtube publications that (just) passes muster. In this context, in this case, his denials of responsibility are sufficiently pleaded for present purposes. They may need elaboration, to comply with the rules. But they disclose a reasonable basis for defending the claim on this issue. I have not been persuaded that the claimant would be bound to prove at a trial that this defendant’s denials are false and/or that the second defendant is causally or legally responsible for the Youtube publication. The issue is worthy of evidential investigation at a trial.

If he was found responsible for the Youtube publication the second defendant would be held liable, unless he could establish an affirmative defence. He has not put forward a defence of innocent dissemination, and for the reasons given above, he could not hope to succeed if he did. His position is indistinguishable from that of the first defendant in this regard. The same is true when it comes to honest opinion, which has neither been pleaded nor raised in any other way by this defendant. His purported defence of truth does not disclose a reasonable basis for defending the claim. But, as with the first defendant, I do not consider it appropriate to grant summary judgment on that issue, or on liability, without giving this defendant a further opportunity to state, and show a basis for, tenable defences of truth and/or public interest.

He has pursued a separate and distinct line of defence from the first and second defendants, whom he says he did not know before 20 September 2014. His statements of case are not the same as theirs. He has served no Rejoinder. He has filed no evidence. But in the end I have reached similar conclusions about the case against him, and his defences or potential defences to that case. He has not pleaded any reasonable basis for challenging the claimant’s case on publication, reference, meaning or serious harm, so far as the Youtube publications are concerned. But he has sufficiently pleaded a denial of responsibility for that publication, and that denial is not shown to be unworthy of belief at this interim stage of the case. Though sceptical, I am not satisfied that he has no real prospect of defending the claim on that basis.

If, however, he is shown to be responsible at common law for the publication of the videos on Youtube, the defence of innocent dissemination could not possibly save him. The reasons have been explained already, and apply equally to this defendant. He has failed completely to state any reasonable grounds for defending that claim on the basis of a defence of truth, or public interest. But it is not so obvious that he could not put forward a tenable case, that I should grant summary judgment at this stage. He too will be given an opportunity to put forward a tenable case, by means of an adjournment of that aspect of the claimant’s applications. In his case, as in the cases of the first and second defendants, this should be viewed as a final opportunity. He has no prospect of a successful defence of honest opinion.

As for the Facebook publication, the same applies except that in my judgment this defendant has sufficiently raised an issue with regard to serious harm. The claimant’s case on serious harm does not attempt to distinguish that caused by Youtube publication from any caused by publication on Facebook. The third defendant has pleaded, under the heading “the Effect”, that the claimant’s “conduct” was well known within the Tamil community; he has alleged that he removed the Facebook link immediately upon complaint being made; and he told me he had 600 Facebook friends. There is a case for requiring him to address the claimant’s case on serious harm more specifically, but it cannot in my judgment be said that he has pleaded no basis for defending on that issue, or that his case on the issue is hopeless.

I can deal with this quite shortly. It is said, and accepted, that the claimant’s disclosure list was served four days out of time. There is no basis on which the court would dismiss the claim for that reason, as the defendants seek. More serious is the complaint that the claimant has failed to serve copies of disclosed documents, as requested by the defendants. That was not accepted by Mr Santos. It was not possible to resolve that dispute at the hearing. That was a consequence of the lateness of the application. The first defendant said they had left it to the last possible minute to raise the point. That was not unusual for these defendants, who have left some steps until after the last possible minute. It was not wise. I would not have dismissed the claim for that reason in any event. This application is dismissed, without adjudicating on the point and without prejudice to the defendants’ right to apply at the proper time, in future, for an order for specific inspection if required. That is the appropriate application to make if a party wrongfully fails to produce documents for inspection.

I dismiss this application. It was late, because CPR 24 requires a minimum of 10 days’ notice of an application for summary judgment. No adequate explanation for its lateness has been provided. The application was not in proper form, and it is misconceived in substance. The fact that these proceedings concern matters relating to a charity does not mean that they do not give rise to a right to make a personal claim in defamation. The link with charity is not arguably a basis on which to dismiss the claim.

I dismiss these applications, but without prejudice to the defendants’ right to apply to make appropriate amendments to their defences, in accordance with the conclusions set out above. There is a good reason why the rules prohibit service of a statement of case subsequent to a Reply. If the parties were permitted to go endlessly responding to one another’s statements of case, it would be hard to see an end to the pleading process. As it is, the vast majority of what is set out in the Rejoinders is in my judgment plainly and obviously irrelevant, or at best has no place in a statement of case of any kind. If and to the extent that any of the matters set out in the Rejoinders has a proper place in the statements of case in this action, that place is in the defences.

It should be clear by now, but I will spell out that the only facts that it will be relevant to plead in the defence by way of amendment are facts which go to support a case of truth, or public interest. At the moment, this would appear severely to limit the scope for re-use of the content of the Rejoinders. Paragraph 16 of the first defendant’s Rejoinder is potentially relevant to the issues I have identified and for that reason it may in principle be re-used, but I reiterate that it falls far short of amounting to an adequate plea of fraud, or reasonable grounds to suspect fraud. There may be other aspects of the Rejoinders which it would be legitimate to re-use, but if so it is not obvious which aspects.

The defendants have advanced no reasonable basis for defending the claimant’s claim on the following issues. They have no real prospect of successfully defending the claimant’s case on those issues, and there is no compelling reason for any of these issues to go to a full trial.

The defendants’ written statements of case put forward no reasonable basis for any affirmative defence. Although their written defences refer to innocent dissemination, truth, and public interest, all of which are defences in law, the statements of case set out no facts which could provide any reasonable basis for any such defence. I cannot see any real prospect of a viable defence of innocent dissemination.

In the result, I propose to strike out the entirety of each of the existing defences save only those parts that take issue with responsibility for publication of the Youtube videos, and with the allegation that publication on the third defendant’s Facebook page caused serious harm to the claimant’s reputation. The defendants’ cases on those issues are adequately pleaded, and not shown to be fanciful. I shall not enter summary judgment for the claimant on those issues. I shall enter summary judgment for him on the issues of publication, reference, meaning and (in relation to Youtube) serious harm. That will leave the following as issues for trial, on the statements of case as they will stand after this hearing: (1) the responsibility of the first, second and third defendants for the publication of the videos on Youtube; (2) whether the third defendant’s publication of the videos on his Facebook page caused serious harm to the claimant’s reputation within the meaning of s 1 of the 2013 Act; and (3) if this arises, damages and other remedies.

I have, however, reached the conclusion that I cannot definitively rule out as entirely fanciful the possibility that the defendants might be able to formulate reasonable defences of truth, or public interest, or both, which would have some real prospect of success. I shall not grant summary judgment on liability, but nor shall I dismiss that application. I shall adjourn the remainder of the claimant’s application in order to give the defendants the chance to try once again to state in writing a tenable case of public interest or truth or both, and to put in further evidence to show that one or both have some real prospect of success. The defendants will have to start from scratch. An attempt to create a reasonable plea of truth or public interest by tinkering with the existing statements of case is surely doomed to failure.

I refuse permission to plead the Rejoinders. But I do so on the basis that the defendants may nevertheless apply to re-introduce, when amending their defences, such elements of the Rejoinders as are relevant to responsibility for publication, serious harm resulting from the Facebook publication, and any defence of public interest or truth which they wish to put forward. I dismiss the defendants’ other applications.

The order I am making sets a timetable for the filing by the defendants of an application to amend their defences, and contains detailed provisions as to how any amendment must be formulated, to ensure compliance with the rules of court. There will be a hearing in any event to consider what orders as to costs and otherwise should be made, consequential on this judgment. It is at that hearing that the Court will consider any application the defendants may make for permission to amend. Given the background, as outlined above, it is appropriate to impose sanctions if the defendants default in compliance.

I add this, with reference to the counterclaim. Mr Santos argues that permission to bring the counterclaim is required, because the appropriate fee was not paid: CPR 20.4. The first defendant maintains that permission has been granted. However, no applications relating to the counterclaim are before me. If any party wishes to make any application in that regard they must do so at the adjourned hearing.