Alsaifi v Trinity Mirror Plc & Board of Directors & Anor

The Claimant issued an Application Notice on 31 July 2017 seeking:

In the draft order accompanying his Application Notice it is clear that the principal remedies Mr Alsaifi seeks against the First Defendant are limited to an injunction requiring it to remove the Second Article from the Website and prohibiting its republication. As against the Second Defendant, he seeks an injunction to prevent republication and damages of £10,000.

The First Defendant issued its application notice on 25 August 2017. It was supported by the witness statement of Jennifer Agate, the First Defendant’s solicitor.

As it had done in the First Article Proceedings, the First Defendant seeks the summary disposal and/or striking out of the claim, principally on the same basis as it was successful in the First Article Judgment: that Mr Alsaifi’s claim has no real prospect of success because defences of privilege and honest opinion are bound to succeed in relation to the publication of the Second Article. Separately, it is contended that Mr Alsaifi’s second action against it is an abuse of process.

Somewhat belatedly, the Second Defendant issued her Application Notice on 25 September 2017. In it, the Second Defendant seeks orders summarily dismissing or striking out Mr Alsaifi’s claim on the grounds (1) that he has no real prospect of showing that the words complained of are defamatory of him and/or that their publication meets the serious harm requirements of s.1 Defamation Act 2013; and/or (2) that his claim is an abuse of process under the Jameelprinciples.

In her skeleton argument for the hearing, under the heading “Additional matters that the Court should not need to consider”, Ms Michalos also contended that the Second Defendant would have a defence of honest opinion under s.3 Defamation Act 2013. This argument was not pressed at the hearing, but I will deal with it (shortly) below (see paragraphs 95-97 below).

I shall deal with the meaning application, followed by the Defendants’ applications.

The Meaning Application is similar to an application he made to Warby J and which is also dealt with in the First Article Judgment. In [39] Warby J asked, “What’s the point?”. That is because since the abolition of the presumption of jury trial in defamation claims in the Defamation Act 2013, the need to delimit the range of meanings that words are capable of bearing is almost completely redundant. These days, there is nothing to stop the Court from determining the actual meaning of the words complained of (which used to be the exclusive province of the jury). It is now commonplace for the Court to determine the meaning, usually early in the proceedings, as a preliminary issue.

Nevertheless, principally for the same reasons Warby J articulated, I consider that it does serve a useful purpose to determine the Meaning Application. There is an additional factor in play in this case. Here, it is a plank of the Second Defendant’s application to contend that the Claimant has no real prospect of establishing that the words complained of the publication for which she is responsible bear any meaning that is defamatory of him. The issue at the heart of that submission traverses the same ground as the Meaning Application.

Here I can do no better than set out and adopt Warby J’s analysis from the First Article Judgment:

The Claimant has (quite naturally) based his submissions principally on the reasoning of Warby J from the First Article Judgment adjusted for the fact that the underlying articles are different. His written submissions strayed into contentions that he wishes to make about the underlying factual position. That is an understandable way of approaching matters from his perspective, but at the stage of determining meaning the truth/falsity of what has been alleged is irrelevant. Given his position as a litigant in person, I shall adopt the same fair approach adopted by Warby J and “[identify any] defamatory meaning which the words complained of are capable of bearing, even if it [differs] from any that [Mr Alsaifi] himself had identified” [51].

It is important to address the two versions of the Second Article as they are materially different and are unlikely to bear precisely the same meaning.

The First Defendant contends that highest defamatory meaning the online version of the Second Article is capable of bearing is:

“…that in his capacity as teacher of a teenage girl, the Claimant had been found by the Secretary of State for Education, as his regulator, to have behaved inappropriately towards the girl by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; the Secretary of State had found his conduct to be sexually motivated; he had thereby conducted himself in a way that merited his indefinite prohibition from teaching; the Secretary of State’s decision was subsequently struck down by the courts on the technical ground of law that the girl could not be classed as a pupil because she studied only part-time and therefore that the Secretary of State had no power to investigate, find, against or act against the Claimant; the Secretary of State was disappointed at the court’s decision [because she believed her decision to have been right and just and because the procedures she adopts are sound in law and practice].”

For the print version, it is submitted that the highest capable meaning is as set out above but without the words in square brackets. That is because parts of paragraph [16] and the whole of paragraph [17] are omitted from the print version.

Sensibly, the First Defendant does not contend that the words complained of bear no defamatory meaning of the Claimant.

The Second Defendant’s submissions are bound up, naturally, with the issue of whether Mr Alsaifi has a real prospect of demonstrating that the words complained of are defamatory of him at all. This includes submissions on serious harm (which I will deal with separately when considering the Second Defendant’s summary judgment application). For the purposes of the Meaning Application, it is submitted that the words are not defamatory of Mr Alsaifi because the words for which the Second Defendant is responsible (i.e. [16] and [17]) do not refer to Mr Alsaifi. Further, it is submitted that the expression of disappointment in these two paragraphs is “a response to the Court’s criticism and the adverse costs order and not actually about the Claimant personally at all”. The Second Defendant contends that Mr Alsaifi’s meaning – “the Claimant’s success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children” – is a forced or strained meaning. In her Skeleton Argument, the Second Defendant submits that “this is a case where the words mean exactly what they say, namely”:

It is submitted that this meaning is not defamatory of Mr Alsaifi. The first sentence of the quotation attributed to the NCTL spokesperson “does not import sufficient reference to the Claimant” and the balance does not refer to Mr Alsaifi at all.

If the Court were to find that the words did refer to Mr Alsaifi, then the Second Defendant submits that the meaning falls below the Thornton threshold of seriousness and is therefore not defamatory.

The way that the First Defendant has cast the meaning offends the repetition rule. Phrases like “the Secretary of State had found…” or “the Secretary of State was disappointed that…” signal that clearly. Equally, the Second Defendant’s formulation that “the NCTL were disappointed/insists/are confident…” falls foul of the same rule. The repetition rule requires the ascertaining of the objective meaning of the attributed statements, in the context of the Second Article as a whole. The structure of Mr Alsaifi’s meaning adopts the correct approach because it rightly focuses on the conduct or attributes that Mr Alsaifi contends the words mean when objectively judged.

I have come to the clear decision that the words of the online version of the Second Article are at least capable of bearing the meaning pleaded by Mr Alsaifi. In fairness to him, and given the task is to identify and delimit the defamatory meanings the words are capable of bearing, I consider that, with some tweaks, the online version of the Second Article is also capable of bearing the following, arguably higher, defamatory meaning:

“… that in the Claimant’s capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct and actions made the teenage girl upset within the classroom and feeling uncomfortable at being in the same room; his conduct was so serious that it merited his indefinite prohibition from teaching; the Claimant’s success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught”.

The most substantial change is to the final component. Mr Alsaifi contends that it means:“the Claimant’s success in his appeal is a disappointing one because he might not meet the required standards by NCTL toward the safety and welfare of children”.I consider that the words complained of are also capable of bearing the meaning: “the Claimant’s success in his appeal was disappointing because the original decision to ban the Claimant from teaching was the right one; by his conduct the Claimant had demonstrated he posed a risk to the safety and welfare of the [school] children he taught”.

This meaning emerges, in my view naturally, from the statement that the NCTL was “disappointed” with the decision, which the reader knows from [2] had come about as a result of a “legal technicality”. The obvious meaning of this is that it considered that the original decision banning Mr Alsaifi was fully justified. Why was it fully justified? The reader is told immediately: “Nothing is more important than the safety and welfare of children”. In other words, the ban on Mr Alsaifi’s teaching ban was justified because his conduct demonstrated that he posed a risk to the safety and welfare of the [school] children he taught.

I have put square brackets around “school” because I can see arguments that both are capable meanings. In favour of “school” being included in the meaning are the following: paragraph [16] refers immediately to concerns over maintaining the highest possible standards or personal and professional conduct from all “teachers and school staff”; the article does not refer to the age of the person that had complained about Mr Alsaifi’s conduct; paragraphs [2], [3] and [8] refer to her as a “pupil”; paragraph [6] and [16] refer to “teacher”; “teacher misconduct” is mentioned in [17]; and the headline and paragraph [6] refer to the “classroom”. Against inclusion of “school” are the following: the reference to “student” in the headline and paragraph [4], the reference to “lecturer” in the headline and paragraph [2] and “tutor” in paragraph [1] and the institution is identified as a “College” in the headline and paragraphs [1] and [3]. The reference to the pupil being only “part-time” [8] is likely to suggest to most readers that this was not a school (as school children generally do not attend on a part-time basis). The words “teenage student” [4] and “teen” [5] are equivocal. They are consistent with either meaning.

There is a danger of being over analytical here, but I remind myself that I am focusing on the capacity of the words to bear defamatory meanings; I am not ascertaining the actual meaning. Mindful of the exhortation to have regard to my impression of the article on first reading (see the principle from Charman referred to in paragraph 29 above), I indicated at the hearing that I distinctly remembered the moment at which I had focused on the point. I read Andrews J’s decision in the Appeal Judgment after I had read the Second Article. I remember noting that Mr Alsaifi had been teaching at a higher education institution and not a school and that being highly material to the decision that the NCTL had lacked jurisdiction. Up to that point, insofar as it is any guide, I must have been under the impression that Mr Alsaifi had been teaching at a secondary school or equivalent college (otherwise the point would not have struck me as it did). That impression can only have come from reading the Second Article.

Ultimately, the decision whether this part of the meaning is part of the single meaning may not prove to be particularly significant because the gravity of the defamatory sting is not likely to be materially different whether the word “school” is included or not. I have particularly in mind Andrews J’s dismissal of Mr Alsaifi’s challenge to the substantive decision of the NCTL to impose a ban and particularly her comments in [42], [48] and [66].

The print version of the Second Article has seven fewer paragraphs and, critically, omits the substance of paragraphs [16] and [17] of the online version (only the bald expression of disappointment remains in the print version). This does have an impact on the overall meaning of the print version. As I noted above (see paragraph 9 above), Mr Alsaifi does not attribute a separate meaning to the print version in his Particulars of Claim. The full meaning that he has pleaded is not a meaning that the print version is capable of bearing, because of omission of certain key passages. In my view, applying the principles I have set out, the print version is capable of bearing the following meaning:

“… that in the Claimant’s capacity as a teacher of a teenage girl/a pupil he behaved inappropriately towards he by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account; his conduct was so serious that it merited his indefinite prohibition from teaching, a decision that was subsequently quashed as a result of a legal technicality.”

I do not consider that the balance of the Claimant’s pleaded meaning is a capable meaning because of the absence of paragraph [10] and the substantive comments from the NCTL spokesperson in paragraphs [16] and [17] in the online version. Some readers may have picked up from the quotation from Andrews J’s judgment in [7] of the print version – “I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken…” that this was effectively an endorsement and reaffirmation of the NCTL’s findings by the Judge, but I think the ordinary reasonable reader would only collect such a meaning as a result of a close analysis of the text or by approaching the article as a lawyer would.

In determining the meaning of the part of the Second Article for which the Second Defendant is liable, I agree with and adopt the approach by Warby J in the First Article Judgment [64]-[65]. I approach the issue on the basis that it is clear that the Second Defendant’s spokesperson quoted in [16]-[17] had issued the statement to the media (including The Chronicle) to be reported. From the context, it is clear that s/he was commenting directly on the Appeal Judgment and would recognise that his/her comment would be likely to appear in the context of a report of the decision. The spokesperson was entitled to assume that such a report would be a fair and accurate one - and the Second Defendant cannot be held responsible for any inaccuracy or unfair "spin" which the rest of the article contained, if that was not known to the spokesperson - but it would not be right to limit consideration to the two paragraphs in question “in blinkers, as if the rest of the article did not exist.”

I reject the Second Defendant’s submissions that the words complained of (as against the Second Defendant) do not refer to Mr Alsaifi and are not defamatory of him.

Mr Alsaifi also contends that the statement attributed to the Second Defendant in the print version of the Second Article is capable of being defamatory of him. However, I reject that. The mere expression of disappointment cannot, in context, be understood as reflecting in him in any defamatory way. The reader is not told (and would be guessing) the reason for the disappointment. I suspect most readers would simply regard this as the sort of disappointment that any losing party in litigation feels. As such, Mr Alsaifi has no real prospect of succeeding in his claim against the Second Defendant in relation to the publication of the print version of the Second Article. There is no other reason why the claim over this publication should to trial. On the contrary, as the claim is bound to fail, the sooner it is disposed of the better for both parties. The Second Defendant is granted summary judgment disposing of the claim over the publication of the print version of the Second Article.

For the reasons I have given I find that the publications complained of by Mr Alsaifi are capable of bearing these meanings.

Paragraphs 50(i) to (iii) are rulings as to the capacity of the words complained of to bear meanings that are defamatory of Mr Alsaifi. Determination of the actual meanings the words complained of bore would fall to be resolved, if the claim continues, at a later point together with consideration of serious harm under s.1 Defamation Act 2013.

In its Application Notice, the First Defendant’s applications are put on a variety of bases, but the argument and submissions have properly concentrated on the following two issues:

Although she bases her application to dismiss or strike out Mr Alsaifi’s claim on separate grounds, Ms Michalos on behalf of the Second Defendant also adopts the argument in relation to Henderson –v- Henderson.

The principle from Henderson –v- Henderson can be summarised that a party is expected to bring forward their entire case in a single action and that it is an abuse of process to raise in later proceedings matters which could and should have been raised in the earlier proceedings.

The principle was endorsed by the House of Lords in Johnson –v- Gore-Wood & Co [2002] 2 AC 1. In his speech, Lord Bingham explained the rationale and extent of the principle (p.31):

“… Henderson –v- Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

Lord Millett, however, urged caution as to the limits of the principle (at pp.59-60):

“It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression. In Brisbane City Council –v- Attorney General for Queensland [1979] AC 411, 425 Lord Wilberforce, giving the advice of the Judicial Committee of the Privy Council, explained that the true basis of the rule in Henderson –v- Henderson 3 Hare 100 is abuse of process and observed that it "ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation". There is, therefore, only one question to be considered in the present case: whether it was oppressive or otherwise an abuse of the process of the court for Mr Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the company's action. This question must be determined as at the time when Mr Johnson brought the present proceedings and in the light of everything that had then happened. There is, of course, no doubt that Mr Johnson could have brought his action as part of or at the same time as the company's action. But it does not at all follow that he should have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court. As May LJ observed in Manson –v- Vooght [1999] BPIR 376, 387, it may in a particular case be sensible to advance claims separately. In so far as the so-called rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position. The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action.

The rule in Henderson –v- Henderson 3 Hare 100 cannot sensibly be extended to the case where the defendants are different. There is then no question of double vexation. It may be reasonable and sensible for a plaintiff to proceed against A first, if that is a relatively simple claim, in order to use the proceeds to finance a more complex claim against B. On the other hand, it would I think normally be regarded as oppressive or an abuse of process for a plaintiff to pursue his claims against a single defendant separately in order to use the proceeds of the first action to finance the second, at least where the issues largely overlap so as to form, in Sir James Wigram V-C's words, at p. 115, "the same subject of litigation".

Particular care, however, needs to be taken where the plaintiff in the second action is not the same as the plaintiff in the first, but his privy. Such situations are many and various, and it would be unwise to lay down any general rule. The principle is, no doubt, capable in theory of applying to a privy; but it is likely in practice to be easier for him to rebut the charge that his proceedings are oppressive or constitute an abuse of process than it would be for the original plaintiff to do so.”

In the more recent case of Virgin Atlantic –v- Zodiac Seats UK Ltd [2014] AC 160, Lord Sumption observed [24]:

“The principle in Henderson –v- Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigations points which could and should have been raised before”

and at [25]:

“It was clearly not the view of Lord Millett in Johnson –v- Gore-Wood that because the principle in Henderson –v- Henderson was concerned with abuse of process it could not also be part of the law of res judicata… Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive duplicative litigation.”

In Aldi Stores Ltd –v- WSP Group plc [2008] 1 WLR 748 [6], the Court of Appeal approved Clarke LJ’s summary of the principles to be derived from Johnson –v- Gore-Woodin Dexter –v- Vlieland-Boddy [2003] EWCA Civ 14 [49]:

In Dexter,Clarke LJ added the following by way of further clarification:

Mr Stables for the First Defendant accepts that the burden is on his client to demonstrate that to allow Mr Alsaifi’s claim to continue against it would be abusive. It is insufficient that Mr Alsaifi could have brought the claim in the First Action; to be abusive the Court must be satisfied that he should have done.

Nevertheless, he submits the following:

In summary, Mr Stables submits that, on a broad merits-based approach, and even allowing for the fact that Mr Alsaifi is acting in person, his conduct is properly to be characterised as abusive. He is seeking twice to vex the First Defendant with a claim that he could and should have brought in the First Action. The First Defendant, he submits, did everything it could to try and encourage the Claimant to bring forward all his claims in the First Action.

Ms Michalos accepts that the Second Defendant (a) is in a materially different position from the First Defendant in that her client has not previously faced a libel claim brought by Mr Alsaifi; and (b) could only succeed on the point if the Court has upheld the submission in relation to the First Defendant. In other words, if the First Defendant fails to demonstrate that the claim should be struck out under the Henderson principle, then she could not invite the Court to strike out the claim as against the Second Defendant on this basis.

Nevertheless, she submits that the Court should also strike out Mr Alsaifi’s claim against the Second Defendant as well. The starting point for her submissions is that, if the Court decides that bringing the Second Action against the First Defendant is abusive, then it is abusive to bring the claim against the Second Defendant also. Mr Alsaifi also had all the necessary information to bring a claim against her client at the point he brought the First Action. If Mr Alsaifi wanted to bring defamation proceedings in relation to the Second Article, he should have included all of those whom he held responsible for the publication of that article (or any part of it) in the same proceedings. In the sphere of defamation, the policy justification for the rule in Henderson –v- Henderson, she submits, applies with equal force to the situation where a party brings successive actions against different parties over publication of the same article. That would potentially be hugely wasteful of resources, particularly the Court’s resources which could, potentially, be required to accommodate two actions that could traverse either the same or substantially the same issues perhaps all the way to trial.

Ms Michalos fairly accepts that her client is in the position of party C in the example given by Clarke LJ at principle (iii) as further explained in [50]-[53] and so the hurdle she has to surmount to demonstrate that the action against her client is abusive is correspondingly higher. She submits that if she fails to clear that hurdle that the Court should, nevertheless, have regard to the fact that Mr Alsaifi could have brought his claim against the Second Defendant in the First Action when considering whether his action is nevertheless abusive under the Jameel principles.

Mr Alsaifi submits in answer that he thought, because the two articles were published on different occasions covering different decision and that the Second Defendant in each of the claims was different, that he needed to bring separate proceedings in respect of each.

I have given very careful consideration to whether the current claim by Mr Alsaifi against the First Defendant is abusive under Henderson –v- Henderson. I have reminded myself that it is for the First Defendant to satisfy me that it is and I have carefully considered the principles that I have set out above. I also have attached some considerable weight to the fact that Mr Alsaifi has been acting in person and that the Court should properly give every reasonable latitude to a person who is representing him/herself and who is likely to be unfamiliar with court procedures and the importance of bringing forward all the claims that s/he has in one set of proceedings. Nevertheless, I have reached the clear conclusion that this second action does offend the principle in Henderson –v- Henderson and is an abuse of process.

My reasons for this are as follows:

Mr Alsaifi’s claim against the First Defendant will therefore be dismissed as an abuse of process.

Turning to the Second Defendant, it seems to me that the position is very different. I am not persuaded to the required standard that Mr Alsaifi’s claim against the Second Defendant is an abuse of process. My reasons are as follows:

Put shortly, the First Defendant contends that the Court should grant it summary judgment because Mr Alsaifi’s claim has no real prospect of success in light of the privilege and honest opinion defences that would be relied upon.

Given my decision on Henderson –v- Henderson abuse, a decision on this application is not necessary. Nevertheless, I will rule on it for two reasons: (a) in case I am wrong in relation to the abuse point; and (b) because whether the Second Article is a fair and accurate report of the Appeal Judgment has a bearing on the Second Defendant’s summary judgment application (see paragraph 48(iii) above).

The Second Article is clearly a report of the Appeal Judgment. Under s.14(1) Defamation Act 1996, publication of a fair and accurate report of the judgment, if published “contemporaneously” is absolutely privileged. Alternatively, if the report is not published contemporaneously, s.15(1) and Schedule 1 Paragraph 2 of the same Act provides that a fair and accurate report is protected by qualified privilege (although the section does not protect a publication which is “not of public interest and the publication of which is not for the public benefit” (s.15(3)).

I can gratefully adopt the summary of the proper approach to determining fairness and accuracy from Warby J’s First Article Judgment [74]:

“Fairness for this purpose means fairness in terms of presentation. In order to be fair and accurate for this purpose, an extract or summary need not be verbatim, or indeed accurate in every detail. It can be selective; and a fair, even if very brief, summary of the proceedings will be privileged. Minor inaccuracies and 'tweaking' will not displace privilege. See Cook –v- Alexander [1974] 2 QB 279 (CA), Tsikata –v- Newspaper Publishing [1997] 1 All ER 655, 667b (CA), Ismail –v- News Group Newspapers Limited [2012] EWHC 3056 (QB) [14] (Eady J).”

and [76]

“… privilege may be lost if extraneous material is intermingled with the report, summary, or extract in question, in such a way as to make the whole unfair or inaccurate as an account of the relevant underlying material: Curistan –v- Times Newspapers Ltd [2008] EWCA Civ 432 [2009] QB 231 [28] (Arden LJ)”

There are limited authorities on the interpretation of “contemporaneously”. In the Blog Judgment, Warby J noted that Gatley identified two authorities that had analysed the requirement [73]. In the Blog Proceedings, the words complained of were published from 6 August 2016. Andrews J’s Appeal Judgment was handed down on 24 June 2016. Warby J found that this was not sufficiently contemporaneous for the Blog to be protected by absolute privilege under s.14 [72].

I have not received any submissions on whether a report on 6 July 2016 (therefore following the judgment by some 12 days) would be sufficiently contemporaneous to attract absolute privilege. I would be inclined to think it is not. In §13.37 of Gatley the authors state:

“A report has also been held to have been published contemporaneously when published three days after the proceedings even though that was not the next available issue [of the newspaper] (Crossley –v- Newsquest (Midlands South) Ltd [2008] EWHC 3053 (QB)). However, if a daily paper delayed its report for 10 or 12 days, it would be difficult to say that the report was “published contemporaneously” with the proceedings.”

I need not resolve the point because, like Warby J, if I find that the report is fair and accurate, I need not decide whether the privilege attaching is qualified or absolute. Mr Alsaifi has not seriously advanced a case that the First Defendant was malicious when it published the Second Article (or not one that I regard as having any realistic prospect of success), so even if the privilege attaching is only qualified, it will be a complete defence to Mr Alsaifi’s claim.

As part of his submissions, Mr Stables has provided the Court with a helpful table showing, paragraph by paragraph in the Second Article (both in the online and print versions), from where in the Appeal Judgment the material reported comes. I have reviewed this carefully, and I am satisfied that paragraphs [1] to [15] are a fair and accurate report of the judgment (and likewise for the corresponding paragraphs in the print version). The judgment is long, and a report of it necessarily has to be selective. Overall, I am satisfied that the report is not unfair or unbalanced.

I have given specific consideration as to whether the potential ambiguity as to the age of the complainant and whether she was a school child (see paragraphs 42-43) is material. I am satisfied that this does not introduce inaccuracy or unfairness of such a degree that it deprives the report of privilege. Principally, my reason for this is the same as explained in paragraph 44 above and also because, in large measure, the factors which contribute most strongly to this impression come not from the report of the proceedings but from the comment provided by NCTL in [16] and [17].

As to intermingling, I am satisfied that the reader would clearly understand that paragraphs [16] and [17] were not part of a report, but the comment of NCTL (see [76] First Article Judgment). Their presence does not render the report unfair or inaccurate.

In light of the decision I have reached on Henderson –v- Henderson, I need not consider whether the publication of paragraphs [16] and [17] of the online version of the Second Article is separately defensible as honest opinion or otherwise represents a claim that is so insubstantial that its further prosecution would be an abuse of process under Jameel.

Mr Alsaifi has made an application for summary judgment. This is not dealt with in any detail in his skeleton argument or his witness statement. It appears to be an application based on his contention that the Second Article is not a fair and accurate report of the Appeal Judgment and that the First Defendant has no real prospect of establishing this defence.

My decision on Henderson –v- Henderson means that I need not consider this application, however, given the rulings I have made in relation to the reporting privilege, I would have rejected it.

The Second Defendant sought the dismissal or striking out of Mr Alsaifi’s claim on the basis that he had no real prospect of establishing serious harm to his reputation or the likelihood of it as required by s.1 Defamation Act 2013. In support of that submission, she relied principally on the submission that the publication of the words for which her client was responsible were not defamatory of the Claimant. I have rejected that submission in relation to the online version of the Second Article (see paragraph 48 above).

The question is then whether Mr Alsaifi has a real prospect of demonstrating that he will be able at trial to demonstrate that the publication of the words complained of for which the Defendant is responsible in the online version of the Second Article “has caused or is likely to cause serious harm to [his] reputation” (“serious harm”).

I must bear in mind that the Court has not yet determined the actual meaning of the words complained of. I have found the highest meaning that I consider that the words are capable of bearing and which is defamatory of Mr Alsaifi (see paragraph 50(iii) above). In determining the Second Defendant’s summary judgment application I should assume in Mr Alsaifi’s favour that he will succeed at trial in establishing that the meaning I have found is the actual meaning of the words. Put in the language of CPR Part 24, to succeed in the application for summary judgment, the Second Defendant must show that in this meaning, Mr Alsaifi has no real prospect of demonstrating serious harm.

I accept Ms Michalos’ submission that the Court of Appeal in Lachaux –v- Independent Print Limited [2017] EWCA Civ 1334 has left open the ability to grant summary judgment in appropriate cases where the claimant has no real prospect of success of demonstrating serious harm [79], [82(5)].

Equally, she recognises that where a claimant has advanced a sufficient case on serious reputational harm, by reference to the seriousness of the imputation conveyed by the words used, then ordinarily the case should be left to go to trial [81].

In my judgment, the meaning I have found is sufficiently serious to raise a case on serious reputational harm. That seems to me to be obvious on its face. Ordinarily, that would dispose of the Second Defendant’s application for summary judgment.

However, the Second Defendant contends that the harm occasioned to Mr Alsaifi’s reputation by the Appeal Judgment and the First Article Judgment is so extensive that, in the end, Mr Alsaifi will have no real prospect of demonstrating that he has suffered serious harm to his reputation as a result of the publication of words for which she is responsible in the Second Article. In the alternative, it is submitted that the reputational harm that Mr Alsaifi will be able to establish will be so trivial that his claim should be dismissed under Jameel.

“Serious harm”, under s.1 Defamation Act 2013 is to be determined at the date of publication of the words complained of: Lachaux [67] and [82(2)]. As such, the First Article Judgment, because it post-dates publication of the Second Article, cannot be relevant to any assessment of serious harm.

In any event, Ms Michalos’ submissions appear to fall into the same error identified in the Court of Appeal in Lachaux of failing to distinguish between harm to reputation and the consequences of it (see [27], [32], [59] and [82(2)].

The proper approach to determining the issue of serious harm has been clearly summarised by the Court of Appeal in Lachaux [83(3)]:

“If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.”

The seriousness of the reputational harm is to be judged, at the date of publication, by assessing (1) the seriousness of the imputation conveyed by the words used; and (2) the extent of publication ([73]). Matters that are unrelated to these two issues, upon which a defendant wishes to rely, can be relevant (if relevant at all) to the assessment of the consequences of the reputational harm. In some cases, a defendant may be able to demonstrate that, by reference to these other matters, the consequences of the reputational harm (and the issues at stake in the litigation) are so minimal that there is no substantial tort and continued proceedings would be an abuse under the Jameel principles. In Lachaux, Davis LJ said [79]:

“Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm (quite apart from the question of consequential or special damage) should therefore normally be capable – where the question of serious harm is in issue and is not appropriately to be left to trial – of being relatively speedily assessed at the meaning hearing. If it is, nevertheless, desired by a defendant to put in evidence at an interlocutory stage designed to show that there is no viable claim of serious harm the summary judgment procedure under CPR Part 24 is available if the circumstances so justify. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no-one thought any the less of the claimant by reason of the publication. Whether such evidence is in truth unanswerable and whether such matters are best resolved on a summary judgment application or best left to trial is then for the court to determine. Alternatively, if subsequent events or evidence show that there has ceased to be a "real and substantial tort" then a strike out application, in accordance with the principles of Jameel, may also be available…”

Insofar as the Second Defendant seeks summary judgment against Mr Alsaifi on the issue of serious harm, I reject that application. My reasons are:

This was raised for the first time in the Second Defendant’s skeleton for the hearing, it was not a basis on which the summary judgment was sought in the application notice.

It is submitted that the words for which the Second Defendant is liable as publisher are “plainly a statement of opinion” and therefore protected by the defence of honest comment under s.3 Defamation Act 2013.

The question for me, on a summary judgment application is whether the Second Defendant has satisfied me that Mr Alsaifi has no real prospect of overcoming that defence. She has not. My reasons are as follows:

I turn to consider the alternative basis for dismissing Mr Alsaifi’s claim: Jameelabuse of process. At first blush, it might be thought that, if a claimant establishes a defamatory publication that meets the requirement of s.1 there was little room for an argument that it would be Jameel abusive to allow the claim to continue. However, the Court of Appeal judgment in Lachaux has explained why it has a continuing role that, in some cases, may prove to be important (see [79] quoted in paragraph 94 above).

Jameelestablished the principle that the Court can dispose of proceedings where so little is objectively at stake that it is satisfied that the subject of the claim does not amount to a “real and substantial tort” and the cost of continued litigation is “out of all proportion” to what can be achieved. “The game [is] not merely not … worth the candle, it [is] not … worth the wick” [69]-[70]. The Court should, however, exercise caution before concluding that the prosecution of a viable cause of action would be an abuse. In Ames –v- Spamhaus Project Ltd [2015] 1 WLR 3409, Warby J said this:

Ms Michalos submits that Mr Alsaifi’s claim should be dismissed, now, as an abuse of process. She says that in light of the Appeal and First Article Judgments, his reputation is so tarnished that the ‘game is not worth the candle’.

I do not agree. Mr Alsaifi’s claim has not even got to the stage of a defence being filed. I do not know, at this stage, whether the Second Respondent will defend the proceedings; and even if so, on what basis. I do not know the parameters of the likely litigation or its projected cost. Mr Alsaifi is currently acting in person, so the scale of his costs (when assessed as part of the overall costs of the ‘game’) will be very small indeed. As Warby J noted, this action like all other actions will be the subject of costs budgeting. I cannot say, at this stage, that it would be impossible to fashion a way of dealing with this case in a manner that is proportionate.

In any event, the basis of the alleged abuse – that there is nothing left of Mr Alsaifi’s reputation worth protecting following the Appeal and First Article Judgments - seems to me to have a very uncertain foundation.

Insofar as it is contended that Mr Alsaifi will not be able to demonstrate the causation of the reputational harm from the publication complained of because of these two judgments, that seems to me to fail for the following reasons:

Insofar as it is contended that these two judgments can be relied upon in mitigation of any award of damages and (presumably) to reduce any notional award to vanishing point, that also appears to be far from clear.

Interesting though they are, I do not need to resolve these issues because it simply would not be right to dismiss Mr Alsaifi’s claim as an abuse of process at this stage. The Court will, as always, strive to manage this litigation in a way that is proportionate to the issues at stake. If it were to transpire, later, that there is no proportionate way of adjudicating the claim taking into account what is at stake, that is the time that the Court would consider dismissing it as an abuse. That stage has not been reached.

At the completion of the hearing, I invited the Defendants to submit any further submissions and authorities they wished that bore on the issue of the role objective meaning of the words played in assessing the fairness and accuracy of a report.

The parties helpfully submitted further submissions on this point. Ms Michalos also included a section headed “Qualified privilege and s.4 Defamation Act 2013”. This sought to argue that the Second Defendant ought to be granted summary judgment on Mr Alsaifi’s claim on the additional ground that she has a defence of qualified privilege either at common law or under s.4 Defamation Act 2013.

This was not an argument that was pursued at the hearing (or raised in the Application Notice) and it would not be right for me to deal with it in this judgment. The issues raised by such an application would require specific and careful consideration and Mr Alsaifi would need to be given an opportunity to respond to any such application.

The result in relation to the Second Defendant’s applications is, therefore: