Sooben v Badal

This judgment follows the trial of a libel action over an article that was published in the November 2013 edition of Mauritius Now. The evidence is that Mauritius Now is published only in print, but it has not been published at all since sometime in early 2016. In November 2013, it had a circulation of some 1,000 in England & Wales, which produced a readership of between 3,000-4,000. As the title of the newspaper suggests, it covers material which is likely to be read by those who are interested in Mauritian news, particularly those in the UK who are of Mauritian origin. At the relevant time, the Defendant, Eshan Badal, was the editor of Mauritius Now. I was told the owner was an individual called Tariq Rawat (“Mr Rawat”).

The Claimant is Anbananden Sooben. He is a solicitor admitted in England & Wales. Although a Mauritian by birth, he came to live in the United Kingdom in 1964. He is now 75. In terms of family, the Claimant is married with two grown-up children and three grand-children. He has not always been a solicitor. He was a civil servant in the UK working for the Department of Trade & Industry and other departments. When he retired, in 1994, after 23 years’ service, he had attained the grade of Higher Executive Officer and was cleared to have access to classified information. Following retirement, he studied law and completed his legal training in 2006.

The article that has given rise to these proceedings appeared on page 28 of Mauritius Now for November 2013 in a section of the newspaper headed “Law”. The article occupied the whole of the page and was an interview with Ramkarun Bushan Deepchand (“Mr Deepchand”) (“the Article”). I have added paragraph numbers for ease of reference. The punctuation errors are in the original text.

Proceedings were commenced by the Claimant on 5 November 2014. He sought from the Defendant damages and the publication of an apology in Mauritius Now. The Claimant originally acted in person. Although he made a decent effort of setting out the nature of his complaint in his Particulars of Claim, permission to amend was granted by the Court on 18 February 2016 and he served an Amended Particulars of Claim dated 4 March 2016.

In his Amended Particulars of Claim, the Claimant complained that the words shown underlined from the Article bore a meaning that was defamatory of him in the following terms:

“… that the Claimant procured, suborned and/or attempted to procure or suborn [Mr Deepchand] to commit perjury, which is a criminal offence contrary to sections 1 and 7 of the Perjury Act 1911 and punishable on conviction on indictment with a term of imprisonment not exceeding seven years.”

Although I will rule later on the meaning, for convenience I shall refer to this as the Perjury Allegation.

When he served his Amended Particulars of Claim, the Claimant identified two further Defendants that he wanted to hold responsible for publication of the Article; Mauritius Now Limited (the publisher) and Mr Deepchand, whose interview formed the basis of the Article.

The Court’s permission was required to join the two further parties. The Claimant applied for such permission, but his application was refused by Master McCloud on 12 April 2016. By that stage, the limitation period had expired and so, I infer, the application was refused because the Claimant could not show that his claim could not “properly be carried on… against the original party unless the new party is added… as defendant” (CPR Part 19.5(3)(b)). Mr Deepchand can perhaps consider himself fortunate that he was not joined to the proceedings. As he had given an interview for the newspaper, he would almost certainly have been liable for the publication of the Article. In consequence, the Defendant faces this claim alone.

The Defence was dated 15 November 2016. In it, the Defendant admitted that he was editor and therefore the publisher of the Article. Paragraphs 11 and 12 advance defences of (1) justification; (2) fair comment; and (3) Reynolds privilege. The Defence did not comply with the provisions of CPR Part 53 PD §§2.5-2.7: no particulars were given of any of the defences and the defamatory meanings the Defendant were contending were true and or fair comment were not set out either. Perhaps optimistically, the Defence denied that the words complained of were defamatory.

No Reply was served.

Witness statements were exchanged and filed in around February 2017. The Defendant served a witness statement of Mr Deepchand in support of the justification defence.

Fortunately, the allegation that is at the heart of the Claimant’s meaning is very specific. Consequently, the parameters of the justification defence were clear. Had this not been the case, the breaches of CPR Part 53 PD and the lack of a Reply could have led to the trial of this action descending into chaos.

On the first day of the trial, the Defendant made an application that the Claimant’s claim should be dismissed under CPR Part 24 and/or s.8 Defamation Act 1996. It was contended that the claim had no real or realistic prospect of success on the basis (a) that the words complained of were not defamatory; and/or (b) that the justification defence was bound to succeed. I dismissed that application, giving my reasons at the time.

The Claimant gave evidence and was cross-examined. By the end of the cross-examination, no positive case had been advanced on behalf of the Defendant that the Perjury Allegation (or any variation of it) was true. I therefore inquired as to the status of the pleaded justification defence. It transpired that the Defendant was no longer contending that the Perjury Allegation was true. That was an important development. It is very regrettable that it emerged only at the end of the Claimant’s evidence. I have no doubt that the Claimant will have been very concerned that he was attending the trial of this action expecting to have to face the allegation, in open court, that he was guilty of the Perjury Allegation and then to have his denials of this challenged. As it turned out, he need not have worried. It hardly needs stating, but the maintenance of such serious allegations of wrongdoing on the face of a statement of case as part of a plea of justification and then their, almost casual, abandonment at trial is a very serious matter.

Although pleaded, no attempt was made to defend the publication of the words complained of as fair/honest comment. That left Reynolds privilege as the only defence upon which reliance was placed. The consequent reduction of issues meant that the evidence from the balance of the Claimant’s witness evidence went unchallenged, and the only defence witness called was the Defendant.

Following this narrowing, the issues for me to determine are therefore as follows:

There has been no dispute (or indeed any submissions) as to the meaning the words complained of bear. Nevertheless, I must resolve this by application of the familiar rules. I will not set out the law in this judgment. The principles are well-established and not in dispute. The task of the Court is set out, succinctly in Jeynes –v- News Magazines Ltd[2008] EWCA Civ 130 [14].

Given some of the submissions and evidence of the Defendant, it is necessary for me briefly to explain the treatment of publication of the allegations of others in the law of defamation. The Article almost entirely consisted of the quotation of remarks made by Mr Deepchand. The Defendant made the point that the Perjury Allegation made against the Claimant was made by Mr Deepchand and not him. Unfortunately, because the Defendant chose to publish the interview with Mr Deepchand which contained the Perjury Allegation, he is also liable for that publication in whatever meaning that, objectively judged, it bears in the context of the Article as a whole (see Shah –v- Standard Chartered Bank [1999] QB 241, 263 per Hirst LJ and 266per May LJ). This is called the repetition rule. The same rule prohibits a defendant from seeking to prove true simply that someone else did make the statement. In order to succeed with a justification defence, the defendant must prove substantially true whatever defamatory meaning the resulting republication bears.

Adopting the approach in Jeynes I determine that the meaning of the words complained of by the Claimant in the context of the Article is

“that the Claimant attempted to procure evidence he knew to be false from Mr Deepchand to be used in support of the Claimant’s legal case and that he was therefore guilty of attempting to get Mr Deepchand to commit perjury.”

The words do not mean that the Claimant committed perjury. s.7(1) Perjury Act 1911 provides that “every person who aids, abets, counsels, procures, or suborns another person to commit an offence against this Act shall be liable to be proceeded against, indicted, tried and punished as if he were a principal offender.” Had Mr Deepchand actually given false evidence in the Claimant’s court proceedings, and had that been procured by the Claimant, then he would have been guilty of perjury under s.7(1) (and Mr Deepchand guilty under s.1). However, as is plain from the words, Mr Deepchand was (he said) not prepared to participate in “this devious act”. The conduct being alleged against the Claimant is therefor that he has attempted to get someone to commit perjury. That is an offence under s.7(2) Perjury Act 1911 and is liable on conviction to imprisonment or a fine or both.

This meaning would be very serious if levelled against any individual. That it was levelled against a solicitor makes it more so. As is well-known, solicitors are officers of the Court who are duty bound not to deceive or knowingly or recklessly mislead the Court. It is difficult to imagine a more serious allegation to make against the professional reputation of a solicitor than a willingness to pervert the course of justice by attempting to procure perjured evidence.

In his witness statement for trial, the Defendant suggested that readers of the Article would not know that the “Mr Sooben” referred to in paragraph [4] was the Claimant. However, when cross-examined he accepted that he knew that it was a reference to the Claimant and that it would have been understood to be a reference to the Claimant. I am quite satisfied that the Claimant is sufficiently identified in the Article for readers to understand that the words complained of referred to him.

The common law defence of Reynolds privilege was abolished and replaced with a new statutory public interest defence under s.4 Defamation Act 2013. The Act came into force on 1 January 2014. However, under s.16(5) of the Act, the statutory defence is not available where the cause of action, as here, accrued before commencement of the Act. In consequence, the Defendant’s defence in this case falls to be assessed under the old common law.

The leading cases on the Reynolds privilege were Jameel –v- Wall Street Journal Europe SPRL [2007] 1 AC 359 and Flood –v- Times Newspapers Ltd [2012] 2 AC 273. I accept Mr Schama’s submission that there are three requirements before a Reynolds defence can be established (see Gatley §15.5):

The Court must not take an unduly restrictive view of matters of public interest. It is certainly not constrained to topics of national political importance. Discussion of local issues, not involving public figures, can legitimately be matters of public interest (GKR Karate –v- Yorkshire Post Ltd [2000] EMLR 410). The fact that it may raise issues that concern a particular sector of a community does not mean that the subject matter is not of public interest (see Al-Fagih –v- HH Saudi Research & Marketing (UK) Ltd [2002] EMLR 215, where the publication concerned a small Saudi community in the UK).

Taken as a whole, I am satisfied that the Article was of sufficient public interest. I accept the evidence from the Defendant that there was substantial interest in the conviction of Mr Deepchand at Southwark Crown Court on 21 October 2013 on 3 counts of illegally providing immigration advice and services. That appears to me to provide a sufficient public interest in the topic which was the focus of most of the Article.

The test is to ask whether, given the subject matter as a whole is a matter of public interest, it was reasonable to include the material complained of as part of the overall picture. In Jameel,Lord Hoffmann held [51]:

“The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no purpose. They must be part of the story. And the more serious the allegation, the more important that it should make a real contribution to the public interest element in the article.”

This principle was tempered by the House of Lords in the later decision of Flood. Rejecting the suggestion that the inclusion of extraneous material meant that privilege was lost, Lord Dyson observed [194]:

“… such a general rule is inconsistent with another important principle which is that, although the question of whether the story as a whole was a matter of public interest must be determined by the court, the question of whether defamatory details should have been included is often a matter of how the story should have been presented. On that issue, allowance must be made for editorial judgment: see per Lord Hoffmann in Jameel's case [2007] 1 AC 359, para 51, quoted by Lord Mance JSC at para 132 above. Moore-Bick LJ recognised the importance of this point [2011] 1 WLR 153, para 100. He said:

‘It has been recognised that a considerable degree of deference should be paid to editorial judgment when deciding whether the inclusion of the defamatory material was justified and undoubtedly setting out the allegations and naming DS Flood added force and credibility to the story. The paragraphs about various Russian oligarchs, their business affairs and their relationship with the Kremlin, were no doubt included essentially for colour and presentational purposes.’”

Mr Schama submits that the inclusion of the Perjury Allegation was gratuitous. Even making allowances for the fact that Mr Deepchand alleged that the Claimant was the person who had “instigated” [5] his prosecution that led to his conviction at Southwark Crown Court, the relevance of the Perjury Allegation to that was at best tangential. It is not stated expressly that Mr Deepchand’s refusal to participate in the “devious act” was the motivation for the Claimant’s role in his criminal prosecution (although I accept that some readers might make that assumption). But it was an allegation of such exceptional seriousness that its inclusion must have made a real contribution to the public interest element, not merely be a piece of interesting background or part of the narrative. This is not a matter of making an allowance for editorial judgment. That margin of appreciation is reserved to cases where the relevance of the particular matter to the story as a whole is a matter of fine judgment, upon which there could be a reasonable disagreement. In my judgment, the inclusion of the Perjury Allegation was simply not justified by the overall public interest that attached to the general theme of Mr Deepchand’s interview. It was gratuitous and unjustifiable and would therefore not be protected by any Reynolds privilege.

That finding is sufficient to dispose of the defence, but in case I were wrong about that, I will go on to consider whether the Defendant has met the standards of responsible journalism.

The familiar non-exhaustive list of factors the Court should consider when assessing whether a publisher has behaved responsibly in publishing a defamatory statement are drawn from Lord Nicholls’ speech in the Reynolds case [2001] 2 AC 127, 205:

These factors are not to be applied mechanistically. The weight to be attached to these (and any other relevant factors) will vary from case to case.

A point arises in this case as to the standard of responsible journalism by which it is appropriate to judge the Defendant. He was a volunteer in acting as editor of the newspaper. In his evidence, the Defendant told me it was not a full-time job. He did it, because he loved his community and wanted to give back to it. He was, therefore, and I accept, a public-spirited volunteer not a professional journalist.

In Lukoviak –v- Unidad Editorial SA [2001] EMLR 46, Eady J found that the assessment of the Reynolds criteria had to take into account the different editorial standards that might apply in different countries [46]:

“… when the courts in England have to consider whether a particular defendant had, or may have had, a duty (legal, social or moral) to publish the particular words complained of, it must surely be necessary to take into account the circumstances confronting the hypothetical defendant at or prior to publication. These would include circumstances applying outside this jurisdiction. It cannot be right, as a matter of principle, that the issue of duty should be judged by an English court on the hypothetical basis that the publication was only taking place in England and Wales. The court is considering whether or not there is a duty to communicate the relevant information to the world at large; that is to say, to place it in the public domain generally. It would not be appropriate to attempt to draw fine distinctions in such cases between duties that might be owed, for example, with reference to one jurisdiction and not others.”

This is authority for the proposition that assessment of the responsibility of the journalism can take account of ‘local conditions’. Counsel have not been able to identify any authority that has direct bearing on the question of whether the Court should make allowances for a journalist who is not a professional, but a part-time volunteer. In my view, under Lord Nicholls’ framework and taking into account all relevant circumstances, it is a relevant matter to consider, but it cannot be pressed too far. It is to be remembered that the Reynolds privilege, if upheld, deprives a claimant of a remedy in respect of a defamatory publication. The demonstration of journalistic responsibility in relation to a matter of public interest is what justifies that result. There has to be a minimum standard to be satisfied. Amateurs, however well-meaning, who involve themselves in publishing defamatory allegations can reasonably be expected largely to meet these standards if they wish to avail themselves of this defence to defamatory publications. This is not an onerous requirement. Most of Lord Nicholls’ factors are born of basic fairness that even an amateur journalist can understand and should observe.

I have heard evidence from both the Claimant and the Defendant. The balance of the Claimant’s witness statements were admitted without challenge by the Defendant.

The issues to be determined on the evidence have been reduced by the abandonment of the justification defence. There are now two issues upon which the evidence bears: (1) Reynolds privilege; and (if it arises) (2) damages. I will deal with these separately

In his evidence, the Defendant stated that Mauritius Now had a circulation of between 1,000-2,000 print copies. The edition for November 2013 had a circulation of 1,000 which was circulated mostly (but not exclusively) in London. He estimated that there were around 50-60 subscribers, to whom the newspaper would be sent. He accepted that he hoped that the paper would be widely read and that it was the most important paper for the Mauritian community.

The draft of the Article had been provided to him by Mr Rawat, who had also provided him with documentary material consisting of court documents from two cases involving Mr Deepchand. Those cases were referred to in the Article: the harassment claim that Mr Deepchand had brought against the Claimant (in Brentford County Court) (“the Harassment Action”) at the end of November 2010 and documents relating to Mr Deepchand’s recent prosecution at Southwark Crown Court. The Defendant said the Article had been published after careful consideration by him of these court documents. Included within the Harassment Action documentation were some documents relating to a previous money claim brought by the Claimant in 2009 against his former partner, Rajesh Babajee in Wandsworth County Court (“the Debt Action”).

It matters now only by way of background, but in the Debt Action it was alleged by the Claimant that Mr Babajee had received £10,000 from Mr Deepchand for a 30% share of the Mr Babajee’s solicitors’ practice, Benn Cameron Solicitors. The Claimant’s claim against Mr Babajee was for just £3,817 which he contended was paid by him as an investment in the firm. The fact that Mr Deepchand had paid £10,000 to Mr Babajee was only material, not because it increased the value of the Claimant’s claim, but because it showed that Mr Babajee had the funds to repay the Claimant.

The Harassment Action documents contained allegations, made by Mr Deepchand, that the Claimant had attempted to get him to “make up evidence” in support of the Claimant’s Debt Action. These allegations were contained in the Particulars of Claim in the Harassment Action and also in two witness statements from Mr Deepchand (one dated 26 November 2010 and an undated (and unsigned) further supplemental statement). As the Defendant accepted in his evidence, this was the totality of the evidence that he had that bore on the Perjury Allegation. He accepted that he also had, and had read, the Claimant’s Defence and Counterclaim in the Harassment Action, and the various statements from the Claimant in those proceedings in which he denied that he had sought to get Mr Deepchand to give false evidence for him in the Debt Action. The Claimant had given a full account in response to Mr Deepchand’s allegations in those documents. No Court had adjudicated upon the Perjury Allegation, it simply featured in the evidence in the Harassment Action.

The Defendant was cross-examined by Mr Schama by reference to the 10 criteria from Reynolds.

Seriousness of the allegation

The Defendant accepted that he realised that the Article was making the allegation that the Claimant had tried to get Mr Deepchand to commit perjury and that was a serious allegation. As was a regular feature of his evidence, he maintained that he was not making that allegation, it was being alleged by Mr Deepchand. He believed that it was up to readers what they made of Mr Deepchand’s allegation. He accepted that perjury was a criminal offence and that had the Claimant been prosecuted and convicted he was at risk of being sent to prison, but he said that it was not for him to make that judgment. Pressed about the seriousness of alleging, against a solicitor, that he had acted in a way that could see his career destroyed and his possible imprisonment, the Defendant maintained that this was an interview, it contained an opinion and that it was the role of the newspaper to make this sort of material available to readers. In response to a direct question whether he had considered the consequences for the Claimant, my note of the Defendant’s response was: “It is not for me to consider the consequences for [the Claimant]. It was for us to give the community the news that they were after. We always thought that [the Claimant] would have a chance to counteract anything said about him.” He said that he believed the Claimant to be a man of good character and he accepted that he had been a respected member of the Mauritian community who had lived in the UK for 50 years.

Nature of the information

The Defendant accepted that the Claimant was not a politician or a public figure; that he did not exercise any influence on public opinion; was not regarded as a role model or a celebrity. He was just an ordinary immigration solicitor. The Defendant did not accept that the information was of limited public concern. He said that there were a lot of people who were trying to find out about the case. What he meant by that was Mr Deepchand’s Southwark Crown Court case. When asked by Mr Schama whether the Perjury Allegation was of limited interest, the Defendant replied that he had seen the documents. Pressed again, he accepted that the Perjury Allegation was of limited public concern.

Source of the information

The Defendant said that the “paperwork” had been handed to him by Mr Rawat. He said he looked over the documentation and did not know whether there was any other source beyond Mr Deepchand. Mr Schama asked him whether he had contacted any of the witnesses in the Crown Court case. The Defendant replied that he was not a police officer, he was working on the newspaper on a voluntary basis. He confirmed that he had not interviewed anyone beyond Mr Deepchand for the Article. When he received the draft of the Article from Mr Rawat, he said that he had “toned it down” because there were a number of references to the Claimant. He accepted that it was clear that there was a dispute of some history between the Claimant and Mr Deepchand and that Mr Deepchand had alleged in the article ([8]) that he thought he was the victim of a “planned vendetta against [him] to further tarnish my position in the Mauritian community”. Nevertheless, the Defendant maintained that he did not think that Mr Deepchand had an ‘axe to grind’ in relation to the Claimant. He said: “I just thought Mr Deepchand was trying to clear his good name.”

Steps taken to verify the information

It is common ground that the Defendant had information provided by Mr Deepchand and the documents he had provided. He took no further steps to verify that information. The Defendant said that he thought he had pressed Mr Deepchand when he interviewed him to provide supporting evidence. He claimed that he had gone online and read some documents and he thought that Mr Rawat had made some calls. Pressed by Mr Schama, he accepted that, in relation to the Perjury Allegation, he had no further information beyond what was contained in the documentation he had received.

Status of the information

The Defendant said that he had asked Mr Deepchand whether he had reported the Perjury Allegation to the police. He said that he thought his answer was that he did not want to appear in Court. He accepted that the allegation was 4 years’ old and there was no active police investigation. The issue had not been adjudicated upon by any Court or other body.

Urgency

The Defendant thought that he had about 3-4 weeks between the time he had received the documents and the date of publication. He made the point that Mr Deepchand had been sentenced on 21 October 2013 at Southwark Crown Court and that he was anxious to get the interview into the next edition of the paper whilst it was still topical and a matter of interest in the Mauritian community. However, he agreed that the Perjury Allegation was not ‘perishable news’. It was included because it was part of the interview, but its publication was not urgent.

Whether comment was sought from the Claimant

This is an issue of substantial dispute. In his witness statement, the Defendant said: “… we have made reasonable attempts to try to get in touch with [the Claimant] at his office, but his office was closed, his office number including his mobile number… was not working. We later found out that his office was closed… I strongly believe that even if we would have met [the Claimant] he would not have said or told us of anything more than what we were aware of already or which could have changed the context of the answer”.

The Claimant’s evidence was that his mobile telephone was working during the relevant period in the run up to publication of the article. He accepted that his firm had stopped trading, but the office was not closed. It was a serviced office and that there was a lady there who, had she been contacted, would have been able to provide his contact details at his new office in Thornton Heath

The Defendant was cross-examined about the newspaper’s letter dated 4 December 2013 (wrongly dated 3 November 2013) in response to the Claimant’s complaint about the Article. Mr Schama asked why there was no reference in this letter to attempts having been made to contact the Claimant prior to publication. The Defendant said that the letter had been prepared by the newspaper’s lawyers. He accepted that the first mention in correspondence of attempts having been made to contact the Claimant prior to publication was in 2015. The Defendant maintained that even after publication he was still anxious to try and get the Claimant’s response and that he had tried to contact him on a number of occasions. He was asked, if that was true, why had he not simply included a request that he provide an interview in the letter dated 4 December 2013. The Defendant contended that he thought that they had made such a request in that letter. He accepted that he had not made any note of the attempts that he had made to contact the Claimant. He said that he was a volunteer and that he did not feel that he had to keep records like a police officer. He did not visit the office in Illford because, he said, he had been told that the office had been closed. When he telephoned the office, he said he was told that the office was closed. He said that he had asked the woman who had answered whether she had contact details but she said that she did not. Asked what other attempts he had made to trace the Claimant, the Defendant said that he had visited the Companies House website and carried out other online searches. He estimated that, in total, he had spent 3-4 hours in trying to trace the Claimant.

Whether the Article contained the gist of the Claimant’s side of the story?

The Defendant had to accept that the Article did not include the Claimant’s side of the story. Mr Schama asked him about the failure to include mention of the fact that the harassment injunction had been obtained ex parte and had later been replaced by mutual undertakings to the Court from both Mr Deepchand and the Claimant that each would not harass the other, but on the basis that no admissions were made as to earlier alleged harassment. The Defendant accepted that he knew about this information from the papers he had read and that he also knew from the documents what the Claimant had said in response to the Perjury Allegation. Asked why none of this had been included in the Article, he said that it was an interview with Mr Deepchand. He accepted that, in that respect, it was one-sided.

Tone of the Article

The Defendant accepted that the allegations were simply put forward by Mr Deepchand. There was no call for an investigation into the Perjury Allegation. When it was put to him that there was nothing in the Article which could suggest to readers that it had not been established whether the allegation was true or not, the Defendant said that that was not the style of writing that they would use. He said that readers could decide for themselves and that they would have given the Claimant a chance to respond, “ideally in the next issue”.

Other circumstances relevant to publication including timing

The Defendant denied that the Article was an attempt to please Mr Deepchand as an advertiser. He thought that the Article was a “hot topic” following the Southwark Crown Court case, but accepted that this public notoriety did not extend to the Perjury Allegation. The Perjury Allegation was in the draft Article when it reached him. He did not think about removing it as the Article was an opinion from Mr Deepchand.

At the end of his cross-examination, the Defendant was asked whether he had believed the allegation of perjury when it was published in November 2013. He confirmed that he did. In light of the abandonment of the justification defence, he was asked when his belief had changed. The Defendant said: “yesterday” (i.e. the first day of trial). Asked what had changed his mind, he said that it was what the Claimant had said in evidence that day. Mr Schama pressed him that nothing that the Claimant had said in the witness box was any different from what he had said in his witness statement for the proceedings. The Defendant’s response, as I have noted it, was “I just had the chance to listen to [the Claimant], to understand the whole scenario.” He was asked, in light of his acceptance that the Perjury Allegation was untrue, was he prepared to publish an apology to the Claimant. The Defendant confirmed that he was. He said that he would speak to Mr Rawat and that he would do so regardless of the outcome of the case.

There is no dispute that the Perjury Allegation was very serious. The information had emerged in the context of a dispute between Mr Deepchand and the Claimant. In that respect, it was a limited matter of public concern. Mr Deepchand was the sole source for this allegation. Although it could be said that he had direct knowledge of the matters he was alleging, it was also clear (or should have been clear) that there was a very real risk that he had an animosity towards the Claimant and that he was using the platform of an interview to ‘have a go’ at the Claimant. That should have been obvious to the Defendant and it should have caused him to adopt a heightened degree of scepticism about Mr Deepchand’s motivation and whether it was right for the newspaper, uncritically, to publish what he had to say.

There was no real attempt to verify the allegations. The Defendant kept referring in his evidence to the fact that he had received and had read the documentation from the various court proceedings. However, insofar as those documents shed any light on the Perjury Allegation, they simply recorded earlier occasions on which Mr Deepchand had made the same allegation. In the law of evidence, those are regarded as previous consistent statements and they have very little evidential weight. It should have been obvious to the Defendant that it was no real verification of the allegation to establish, only, that Mr Deepchand had made it before.

The Perjury Allegation had no real status. It was simply an allegation that Mr Deepchand had made in documentation in earlier court proceedings. As I have noted, the Court had not adjudicated on the allegation, and the Defendant knew that. The allegation remained untested but, critically, it was vigorously disputed by the Claimant, as the Defendant knew from the documents that he had.

There was no urgency to publish the allegation and, given its seriousness, certainly none which could justify its publication before the Claimant’s response to it had been obtained.

There is a substantial dispute on the issue of the efforts made by the Defendant to contact the Claimant. Having seen the Defendant give evidence and be questioned about this and generally, I have reached the clear conclusion that I cannot accept his evidence on this point. I do not believe that any efforts were made to contact the Claimant prior to publication. A recurring theme in the Defendant’s evidence is that he did not regard it as his role to act as an investigator. He believed his role was to offer a platform to Mr Deepchand, a person who was in the news because of his recent conviction, so that he could have his say and that his readers could hear what he had to say. If the Defendant considered, at all, prior to publication whether there was any need to get a response from the Claimant, I am satisfied that he thought that it would be sufficient to allow him to have a say in a later edition. The clearest support for this conclusion comes from the absence of a number of things which would have happened had the Defendant been anxious to contact the Claimant prior to publication:

The reality in this case is that, had the Defendant (or anyone else at Mauritius Now) really set about trying to contact the Claimant at any time in the 3-4 weeks they had prior to publication, they would have managed it. The Claimant has an unusual name. He lives and works in a small community. He was a solicitor, still in practice. His old office was still staffed, even if his firm no longer traded. His mobile telephone was operational. The contention that it was impossible to contact the Claimant is simply not credible. On the evidence, I am satisfied that they did not try. In reality, the Defendant simply did not see this as part of his responsibility. It is unfortunate that he has not candidly accepted this and instead has put forward this untruthful account of his attempts to contact the Claimant as an attempt to defend the claim.

One of the consequences of not contacting the Claimant was that anything that he might have had to say in his defence was neither considered (possibly with a view to removing the Perjury Allegation from the Article altogether) nor published in the Article (possibly to mitigate its impact in the eyes of readers). But this point is made much worse because, even without contacting the Claimant, the Defendant had documents which spelled out the Claimant’s answer to the Perjury Allegation. The decision not to include any of the Claimant’s side of the story in the Article was a serious error. Again, however, this failure is consistent with my view that the Defendant saw his role as conduit or platform, and not investigator.

It is true that, because it was an interview, the Article’s tone was not as damning for the Claimant as it would have been had the newspaper produced the Perjury Allegation to readers on the basis that it was their conclusion based on an investigation. Nevertheless, the tone of the resulting Article, because it lacked any balance whatsoever, is only marginally less damaging. The effect of the repetition rule in this case is that the objective damage to the Claimant’s reputation is the same.

For those reasons, had a decision on the responsibility of the Defendant’s journalism been material, I would have found that the Reynolds defence would have failed on this ground. Stepping back, this was a very serious allegation presented in a wholly one-sided way in circumstances where the Defendant had failed to contact the Claimant and had failed to represent, from material he had, what could fairly have been said on the Claimant’s behalf in answer to the allegations.