Suresh v Samad & Ors

In this libel action the claimant complains of the publication of videos on Youtube and Facebook, which impugned his conduct as Chairman and trustee of a charity, the Oriental Fine Arts Academy of London (“OFAAL”). This is the adjourned hearing of the claimant’s application for orders striking out the defences of the first to third defendants and/or for summary judgment on his claims against them. It is also the hearing of a cross-application by those defendants (“the defendants”) for permission to amend their Defences to plead the affirmative defences of truth and/or public interest provided for by ss 2 and 4 of the Defamation Act 2013. The main issues are whether the defendants’ draft amended pleading discloses a reasonable basis for defending the claims on one or both of those grounds, and if so whether those defences have a real prospect of success.

The claimant’s application first came before me on 27 October 2016. The hearing had been delayed, due to the late service of evidence by the defendants just before a hearing that had been due in the summer. The defendants again served late evidence, which reached me only minutes before the hearing began before me. I handed down a reserved judgment on 31 October 2016, [2016] EWHC 2704 (QB) (“my October judgment”). By a consequential order dated 2 November 2016 I struck out the defences except for those parts that addressed (1) the issue of whether any of the defendants were responsible in law for the Youtube publication and (2) the question of whether publication on or via the third defendant’s Facebook page caused serious harm to the claimant’s reputation. I granted summary judgment in respect of the Youtube claim on the issues of publication, reference, meaning, serious harm and (to the extent it had been raised by the defendants) innocent dissemination. I granted summary judgment against the third defendant in respect of the Facebook claim on the issues of publication, responsibility for publication, reference, meaning, and innocent dissemination.

Otherwise, however, I adjourned the claimant’s application, giving directions that allowed the defendants to apply for permission to amend to plead defences of truth and/or public interest. I set stringent conditions on the content of any draft Defence, which was to be served by 4pm on 9 November 2016, accompanied by a witness statement complying with certain specific conditions laid down in the order.

I set out the main reasoning behind this decision at paragraphs [59]-[65] of my October judgment. These explained that neither the Defence nor the Rejoinder which the defendants had pleaded set out reasonable grounds for defending the claim on the basis that the words complained of were true. Nor was any proper basis set out for a defence of public interest. But with hesitation I had concluded that it was appropriate to allow a further and final opportunity to frame an adequate defence.

I made these observations:

“Truth

…

59.

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.

60.

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 … grant the application [to strike out] while allowing a further opportunity to recast the pleading (Ashcroft v Foley [2011] EMLR 30). …

61.

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.

Public interest

63.

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. …

64.

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. …

65.

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.”

By an application notice dated 9 November 2016 the defendants applied for permission to amend. A draft Amended Defence was attached. It had been settled by Mr Owen-Thomas of Counsel, who appears for the defendants today. It contained pleas of truth and public interest. A witness statement was filed in support. This was made by the second defendant, but is relied on by the first and third defendants as well. The conditions as to timing and evidential support that I laid down had been complied with.

In two respects, however, the draft Amended Defence is inconsistent with my October judgment. The first is that it asserts that the words complained of bore a “Chase Level 3” meaning, that there were reasonable grounds to investigate whether the claimant had been guilty of certain kinds of wrongdoing. I held that the words were not capable of bearing a meaning less serious than Chase Level 2. The second inconsistency is that paragraph 24 of the draft takes issue with the claimant’s case on serious harm in a way that cannot stand, given the terms of my October judgment. Both these points have been acknowledged by Mr Owen-Thomas in oral argument. Paragraph 22 must go, and paragraph 24 will need adjustment. Otherwise, there is no challenge to anything in paragraphs 1 to 28 of the draft Amended Defence. Nor is any issue taken with paragraph 31. To that extent I grant permission to serve an Amended Defence in the form of the draft.

What is controversial is the pleading in paragraph 29 of the defence of truth and the pleading in paragraph 30 of the defence of public interest. To the extent that paragraph 29 asserts the truth of the Chase Level 3 meaning to which I have referred, it is accepted that for the reasons already given it cannot stand. The contest has been over:

Given this last sentence, it is relevant to note the defendants’ case as to responsibility for publication. It is common ground that the videos in question were recorded in question and answer sessions, in which the third defendant asked the questions and the first and second defendants gave answers: see my October judgment for details. At paragraph 11 of the draft Amended Defence, however, the defendants deny that they were responsible for publication of the videos, and at paragraph 14 the first and second defendants plead that they did did not know or intend that the videos were to be published “let alone online to as many people as possible”.

The legal principles relevant to the claimant’s application are largely set out in my October judgment at [20]-[28] and need no repetition here. Each side has made some short additional points, which are not controversial and which I accept:

The principles that apply to the defendants’ application for permission to amend are, in substance, the mirror image of those referred to above. The defendants’ draft statement of case must disclose a reasonable basis for defending the claim, and be shown to have some real prospect of success. In this respect the burden lies on the defendant. But as Mr Santos fairly conceded, this is not a case in which the burden of proof is going to be decisive.

I shall refer to other legal principles of specific relevance to the defences of truth and public interest as I address those defences, below.

At paragraphs [29]-[30] of my October judgment I set out my approach to the claimant’s applications. This was influenced by the fact that the defendants were unrepresented, which is not the case today. But it remains necessary to consider the case against and for each defendant separately, as I did then. And I also accept the submission of Mr Owen-Thomas that I should allow a degree of leeway. My approach now as then is that I should “seek to avoid undue reliance on anything that could sensibly be viewed as a mere technicality” (October judgment paragraph [30]). Mr Owen-Thomas and his clients had a short time in which to prepare the draft Amended Defence, and it bears some signs of having been prepared in haste. But some of the deficiencies which have been identified in the course of argument are in principle capable of fairly simple resolution. It would not be right to rule against the defendants on the basis of anything that could fairly be called a mere “pleading point”.

At this hearing, unlike the last one, I have the benefit of a clear statement of what it is that the defendants set out to prove. I am able to review the factual matters that are asserted in the particulars under paragraphs 29 and 30 to see if they are capable, if proved, of substantiating the pleaded defences. In doing so I keep in mind that there are four strands to the pleaded case of truth. (The same applies by implication to the defence of public interest, though in that context I have to consider the full range of meanings that might reasonably be in the mind of the publisher). This means that it would in principle be possible to grant permission to plead, for instance, that there were reasonable grounds to suspect wrongdoing in respect of the £23,000 cheque (“imputation (a)”) but refuse it in relation to the £480,000 fraud (“imputation (b)”). But the four strands are also interlinked, and I need to avoid considering them in isolation from one another. So, for instance, when testing whether there is a tenable case in respect of imputation (a), it is appropriate to consider what I shall call imputation (c). A failure to answer legitimate questions about financial matters, or reasonable grounds to suspect such a failure, might contribute to reasonable grounds to suspect fraud.

Adopting the approach I have just outlined, and in the light of the principles to which I have referred, I have reached the following conclusions.

I have considered whether, in the light of the conclusions at (3) above there is any “compelling reason” to allow the first and second defendants to take to trial a defence of public interest. My answer is that there is none. It would merely waste precious resources. The appropriate improvements to the drafting of paragraph 30 may be agreed but if not they can be reviewed and settled at or after the time at which this judgment is handed down.

These conclusions mean that there will be a trial of the following issues: meaning; whether any of the defendants is responsible for the publication on Youtube; whether the publication on Facebook caused serious harm to the claimant’s reputation; and (if and to the extent the issue arises) damages. Following the handing down of this judgment there will be a hearing at which the court will carry out case management and costs management in relation to those issues.

It is convenient to start by considering the pleaded case. I am bound to say that this falls well short of the requirements identified in my October judgment at [22]-[24] and above. The “Lucas-Box” meanings in paragraph 21 set out the nature of the allegations which the defendants seek to prove are true. That is clear enough. But the factual basis on which the defendants seek to prove the truth of those allegations is not. And, to the extent that the factual allegations are clearly made, they are not sufficient to support the “charge” that they are supposed to support.

Imputation (a) concerns a cheque for £23,807.84 signed by the claimant on or around 21 June 2011. The pleaded case in support of reasonable grounds to suspect fraud and theft amounts to eight sentences. The first asserts, perfectly clearly, that the claimant signed such a cheque “drawn on an account of OFAAL … in favour of Bingley Trading Limited (“the Company”), a company registered in the British Virgin Islands owned or controlled by himself.” The facts that follow are said to demonstrate reasonable grounds for suspecting this cheque to have been a fraudulent vehicle for stealing that sum from the charity of which the claimant was Chairman and a trustee.

There are allegations (at (ii) and (iii)) that “OFAAL’s accounts do not reflect a properly incurred liability” to the Company or to the claimant. This is unclear, and upon investigation it appeared that the intended case is not that the statutory accounts do not reflect any such liability but rather that the company’s accounting records do not do so. Quite what is meant by a “properly incurred liability” is entirely obscure. The phrase seems to allow for the possibility that a liability is shown but that it is not shown to be “properly incurred”. It is then said that “according to the accounts, no such genuine expenditure was made by the Claimant from his own funds for the benefit of OFAAL”. This appears to be a positive assertion that the accounts show the absence of any “genuine expenditure”, but on inquiry it seems to be little or nothing more than a different way of saying the same thing as paragraph (iii). Again, confusion is sown by the reference to “genuine” expenditure. Oddly, although the defendants’ case is that the cheque was made out to the Company there is no allegation that “according to the accounts” no “genuine expenditure” was made by the Company.

At (iv) it is said that as a trustee the claimant was not entitled to remuneration, other than to reimburse “genuine expenditure”. Quite what “genuine expenditure” means is unclear. At (v) it is said that the claimant “chose to depart from” a practice of having another trustee sign cheques for expenses to any trustee which is said to have been “OFAAL’s usual practice, and one followed from time to time by the claimant”. It is hard to understand this. If the claimant did not follow this practice all the time, how is a failure to do so on this occasion a “departure”? Does the assertion that he “chose to” depart from a practice have any significance, other than its prejudicial overtones?

Finally, at (vii) and (viii), it is alleged that the claimant had declared a sum of some £9,000 as reimbursement for expenses but had not declared the sum of £23,807.84 as reimbursement for expenses. No date is given for the “declaration”, nor are any other details provided.

This is a muddled and unclear statement of case, which it would be unfair and unreasonable to expect the claimant to confront as it stands. Moreover, the case seems to boil down to little more than an assertion that the cheque could only have been proper if it was reimbursement of expenses, and OFAAL has no documentation to show that this was the case. I have borne in mind that a failure to explain an accounting discrepancy of this kind might lend some support to a case of reasonable grounds to suspect, but as I shall explain, there is nothing of any substance in the defendants’ pleaded case of failure to explain. The defendants’ proposed factual case – to the extent it is clear at all – seems to me to fall a long way short of supporting imputation (a).

The plea in support of imputation (b) is still less satisfactory. The defendants’ case is that the claimant is to be suspected of defrauding a charity of nearly £0.5m. The gist of the case appears to be that in 2009 there was a discrepancy of some £60,000 between the examination fees which OFAAL should have received from examinees in the UK and mainland Europe, and the sums shown in its accounting records as having been received; that the same or a similar discrepancy existed in each of the years 2003-2008 and 2010-2012; and that the claimant is to be suspected of having stolen the difference.

The factual basis for making these grave allegations is set out in just ten sentences. In similar fashion to the particulars of allegation (a), these ten sentences contain a substantial number of obscurities. Paragraph (ix) illustrates this. “As of 31^st March 2009, OFAAL charged students in Germany a total of €44,580, in France a total of €19,436, in Norway a total of €42,670 and in Holland a total of €3,009.” It turns out on enquiry that this is meant to be a reference to the total fees that should have been charged by OFAAL to students in those countries in the year to 31 March 2009. It is said that “Total exam fee income for the year to March 2009 ought to have been therefore €109,695 or £101,569.” It seems, but it is not said, that this is a reference to total European Exam Fee Income. Nothing is said about the timing of payments by examinees. It is then alleged that the claimant “caused OFAAL to report to its Members and the Charity Commission that its total European Exam Fee income was £41,665.” It is not explained how, where or when the claimant “caused” this figure to be reported. But the most gaping hole in this sentence is of course the period for which this figure was provided.

The next paragraph asserts that “The claimant has failed to explain, in OFAAL’s accounts or otherwise, the application of the balance of the money received, £59,904.” This involves an unexplained jump from fee income that “ought to have been” received to an assumption that it was in fact received. There is no allegation that the claimant himself received the money. The allegation of failure to explain is left hanging, with no explanation of when or how or why such an explanation was called for. There is then an entirely general and unparticularised assertion that the charity’s bank statements and accounts “show that there is a substantial difference between the fees that should have been received according to the register of students, and the amount recorded as having been received.” Which documents are relied on for this purpose is wholly unclear.

I have not addressed every element of this part of the pleading, but the above will be enough to demonstrate why I regard it as unacceptably vague and lacking in specifics. The worst aspect is however paragraph (xvi), where the bare allegation is suddenly made that “The total difference between the examination fees expected from students between 2003 and 2012 was no less than approximately £480,000.” The allegation is unexplained. It cannot be regarded as a particular of the case of truth. It amounts instead to “a repetition of the libel”, to use the language of the older authorities. I am left quite unsure on what basis this allegation is made. It seems to be the defendants’ case that there are grounds to suspect that for the 6 years before 2009 and the 3 years afterwards the claimant was “skimming” the exam fee income to the same or a similar extent as he is to be suspected of doing in 2009. But that is not even asserted. No grounds are stated or referred to. I suppose it might be possible to invite an inference to this effect. But no such inference could be drawn from the facts asserted in respect of 2009. There would have to be more, much more. Against this background the fact that if the alleged shortfall of 2009 is multiplied by 9 one arrives at a much higher figure than £480,000 is really of no moment.

Imputation (c) is that “the claimant refused to answer legitimate questions about these matters”. “These matters” are of course the frauds of which it is said the claimant was to be suspected. The particulars are a little unorthodox, as they refer to items of correspondence which are annexed to the draft statement of case. But that does aid clarity to some extent. In particular, it helps to make clear one obvious flaw in the particulars, which is that they contain nothing to show that the claimant was ever asked any questions, legitimate or otherwise, about the suspected £480,000 fraud. The particulars of imputation (c) therefore fail to make out the full breadth of the imputation. By the same token they cannot contribute to the case of reasonable grounds to suspect a £480,000 fraud.

It is alleged that the claimant was asked about the cheque. The pleaded case is that there was a public meeting at Dormers High School “on or around January 2014” at which

“… parents of children at the West London Tamil School asked the claimant and other trustees …

3.

Why the claimant had written a cheque to a company with which he was connected

(v)

to which no proper response was received.”

The particulars do not support the pleaded imputation. An assertion that “no proper response was received” to a question put to the claimant and others is not the same as saying that “the claimant refused to answer” a question. Moreover, “no proper response was received” implies that some response was received, and asserts that the response was not “proper” without disclosing what it is said to have been or why it was not “proper”. It is an unexplained evaluative assertion which fails to disclose its factual basis. This is an unacceptable pleading, and by the same token it fails to lend support to imputation (a) (or, for that matter, imputation (b)).

Two other communications are relied on in support of this imputation. The first in time is an email sent “Around 3 March 2012 … by Mr Kangasanthran to the Claimant asking questions about the governance of the charity” to which it is said “the Claimant refused to respond”. This email is annexed. It contains a good deal of complaint about alleged manipulation of the OFAAL constitution. It contains an allegation of financial irregularity which is irrelevant to the issues raised by the draft Defence. It contains nothing about the alleged £480,000 fraud or about the cheque of 2011. It is incapable of supporting the pleaded imputation.

The second communication relied on is an email sent by the first defendant “to the claimant” on 12 February 2014. The email is annexed to the draft Amended Defence. It is said that there was “no proper response giving any details that were requested of the claimant”. This is similar in form to the allegation of “no proper response” that I have dealt with above. On this occasion however the fact that there was a response is expressly stated, and the response is identified. It is annexed to the draft statement of case. It is an email of 24 February 2014. Examination of these documents makes clear that they cannot support the pleaded imputation.

The first defendant’s email was not sent to the claimant but to Dr Rasiah. There are many criticisms in the email, and these include allegations of “a great degree of financial mismanagement” pertaining to OFAAL “over many years”. The email contains other allegations, directed at the permanent trustees including but not limited to the claimant. But all the allegations are general, and unspecific. There is no allegation of misappropriation of exam fees, nor is anything said about the £23,000 cheque. The email does not request the claimant for details of anything. The reply was sent by the claimant. It does contain a request for details, asking for “all evidences to substantiate these serious allegations” and gave 7 days. These conclusions make it all the more obvious that it is unsatisfactory to allege generally the absence of a “proper response” to questions raised at the school meeting.

Allegation (d) is shortly pleaded. In sum, it is that “at some point in 2009 or thereabouts” the claimant altered the OFAAL constitution to prevent his own role from coming to an end, and manipulated things so that 5 personal friends of his were appointed as trustees. The friends are identified by name. This is said to have happened “other than by a due and proper process”. The pleading is deficient in particularity, but that could be cured by further information. If there were a properly pleaded case under allegation (b) I might well have permitted this plea to go forward. But as there is no such properly pleaded case, the facts alleged in support of reasonable suspicion of nepotism cannot be allowed to stand. The imputation which it is sought to defend as true is not merely reasonable grounds to suspect nepotism. It is reasonable grounds to suspect that the claimant “made nepotistic appointments to help him cover up his wrongdoing” (my emphasis). It seems to me that only the larger alleged fraud could be relevant for this purpose, as the cheque fraud is supposed to have taken place after the allegedly suspect appointments. But I have found in any event that there is no properly pleaded case in support of the cheque fraud allegation.

I turn to the question of whether there is any real prospect of a successful plea of truth in respect of any of these imputations. Put another way, should I allow the defendants another chance to plead a case, or would that merely waste further time and money? Consideration of this issue requires, of course, an assessment of the evidence against and for the view that is a real prospect of such a defence being made out at a trial. I have considered the entirety of the evidence filed on behalf of the claimant and on behalf of the defendants. But that does not mean that I have conducted a mini-trial. A Court confronted with a summary judgment application is not required to suspend its critical faculties, or to treat the volume of evidence as an indication that there must be something worthy of a trial. The evidence before me is reasonably voluminous, but not enormously so. The factual issues are not unduly complex. I am able to form a clear view, and form clear conclusions. These are that there is no prospect that the defendants could muster a defence with a chance of success at trial, and every reason to bring this issue to a close at the present stage. It has already been unduly expensive in terms of costs and time.

As to imputation (a), the fact that such a cheque was made out to the Company, and signed by the claimant, is common ground. The claimant has however presented a clear case, supported by documents, that this was legitimate. His evidence is that the cheque was (i) by way of reimbursement of expenses incurred by the Company on behalf of OFAAL; (ii) contrary to the defendants’ draft pleading, signed by a fellow trustee.

It is of course clear, and implicit in the defendants’ own case, that payment by way of reimbursement of expenses is legitimate. The use of a corporate credit card to pay charity expenses may in some circumstances be irregular from the perspective of the company, but that has no significant bearing on the issues before me. The documentary evidence in support of the claimant’s case is significant and powerful. It includes emails from February and April 2010 in which the claimant complains that he is being expected to meet OFAAL expenses using his credit card and cash, and that he has been doing so for the previous eight years. It includes a handwritten expenses claim form in the sum in question, dated 10 June 2011. There is a print out listing all the expenses by date, amount and description. This has a handwritten notation referring to the cheque “Paid 21/6/11”. The evidence also includes copy receipts for over 95% of the underlying expenses, and an explanation for the remaining 5%.

Before the court in addition are witness statements from Messrs Selvendran and Navendran, both of whom confirm these were genuine expenses. The evidence that the cheque was signed by a fellow trustee comes from the signatory himself, Mr Navendran.

The evidence for the claimant is comprehensive and, on its face, overwhelming.

The evidence relied on by the defendants is substantially as it was at the previous hearing. Given what I said in my October judgment, the fact that there is nothing new is itself a ground for concluding against the defendants on this issue. But I go further.

There is a challenge to the authenticity of the documents, or some of the documents, relied on by the claimant. This is to be found mainly in the witness statement of Mr Amurathasan, of 16 July 2016. But the challenge is principally circumstantial, and it is uncorroborated by documents, or by any other evidence. It is contradicted not only by the claimant’s witness statements but also, critically, by his production of the copy receipts. In order to make out a case of reasonable grounds to suspect fraud and theft the defendants would have to prove that the claimant has perjured himself and forged the claim form, the list of payments, and the copy receipts. They would have to show, in addition, that the supporting witnesses have perjured themselves and conspired to pervert the course of justice. It is in my judgment fanciful to suppose that the defendants might establish such a case at a trial.

Mr Amutharasan was a trustee from 2009 to 2013. The claimant’s evidence is that he was shown evidence of OFAAL’s income and expenditure for the period 2008 to 2013 in the form of bank statements, cheque counterfoils, deposit book counterfoils and the OFAAL Accounts, and in September 2013 confirmed that these were in order. Mr Amutharasan has produced a further statement for the present hearing which does not challenge those propositions. The second defendant was himself a trustee from 2012 to 2014. The uncontradicted evidence is that he was given access to OFAAL accounting documents, and raised no queries at that time.

Both the first and second defendants have accepted in terms that “it may be that the Claimant may have spent his own money”. That admission is perhaps not necessarily inconsistent with a case that there were at the time of publication reasonable grounds to suspect that he had not done so, but had engaged in a fraud. But it certainly does nothing to support such a case, and is hard to reconcile with the suggestion of forgery which is contained in the earlier statement of Mr Amurathasan.

More significantly, the defendants’ own evidence includes documentary material which supports the claimant’s case and contradicts the case which, as it now appears, the defendants would wish to make. That case is that there are no relevant records in OFAAL’s accounting documents. But the defendants themselves have produced accounting working papers, obtained from OFAAL. These include a printed record of the cheque payment, showing the date, the amount and the identity of the payee, with the legend “Reimbursement exp paid to Suresh”.

I find that the claimant has shown that there is no real prospect that imputation (b) could be made out by the defendants at a trial. The pleaded case is hopeless, for the reasons already given. Beyond that, I see nothing of substance to support the imputation.

The first reason for that conclusion can be shortly stated. It is that the whole premise of this part of the defence is unsound. The case of grounds for suspicion depends on a comparison between (a) income or supposed or expected income in the calendar year 2009 and (b) accounting records for sums received in the the financial year 2008-2009. The process is misconceived. OFAAL’s accounting year ended on 31 March. So the overlap between the two is only 3 months (ie, January to March 2009). The defendants are not comparing like with like, and the consequence is that no safe conclusions can be drawn.

Secondly, the claimant has made and produced calculations of his own which, though they may be open to some criticisms, satisfy me of the following:-

Thirdly, it is clear enough that whatever the right figures are, a proper calculation would not reveal any such major discrepancies between actual or expected income and recorded income as those alleged by the defendants.

Fourth, accounting discrepancies do not necessarily involve fraud. One certainly does not make out a case of reasonable grounds to suspect an individual of fraud merely by demonstrating a basis for supposing that there may have been a shortfall in the recorded or banked income. A good deal more than that would be needed. There is nothing, or nothing cogent, to support such suspicions in the case of this claimant.

Fifth, there is nothing in the evidence that begins to justify the multiplication involved in translating the supposed shortfall of 2009 into an annual figure for each of the 9 years from 2003 to 2012.

To require the claimant to go further in demonstrating that this aspect of the defendants’ case is hopeless would be to require him to prove a negative, in the abstract. The defendants have been given ample opportunity to show a basis for supposing that they might prove the truth of this imputation if the matter went to a trial. The claimant’s evidence is sufficiently powerful to show that they have wholly failed to do so.

I do not rest my decision on the point, but it is of some reassurance when assessing the prospects of a successful plea of truth in this respect to note that the uncontradicted evidence is that complaints were made by the second defendant to the Charity Commission and to the police, alleging financial misconduct by the claimant, and in each case found to be unsubstantiated. A Metropolitan Police email of 12 March 2015 records that in the last week of December 2014 the police informed the complainants “that there was not enough evidence for the matter to be taken forward.” A review by the Charity Commission reported on 11 February 2015 that it had received complaints but no evidence that financial abuse had taken place or that funds had been lost to the charity.

Given my conclusions on imputations (a) and (b) it is clear that imputation (c) could not be sustained at a trial, whatever might be proved about the nature and circumstances of the appointments relied on. In the absence of any case of financial wrongdoing there can be no basis for suggesting that anyone was appointed to cover it up.

The pleading in support of imputation (d) is largely based on annexed documents. To that extent my analysis of those documents means that the defendants’ case must fail on the facts as well as on the pleading. There is no real prospect of proving, on the basis of those documents, a refusal to answer legitimate questions. In my judgment such evidence as there is of the January 2014 parents’ meeting also falls well short of suggesting a real prospect of success on this point.

The defence relied on is the one provided for by s 4 of the Defamation Act 2013.

“4.— Publication on matter of public interest

(1)

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.

(2)

Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

(3)

If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the clamant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

(4)

In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.

(5)

For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion.

(6)

The common law defence known as the Reynolds defence is abolished.”

In Economou v De Freitas [2016] EWHC (QB) at [139] I set out some broad points about this section which were not in dispute. Some of these are relevant to the present case:

(1)

It is not enough for the statement complained of to be, or to be part of, a publication on a matter of public interest. It must also be shown that the defendant reasonably believed that publication of the particular statement was in the public interest.

(2)

To satisfy this second requirement, which I shall call “the Reasonable Belief requirement”, the defendant must (a) prove as a fact that he believed that publishing the statement complained of was in the public interest, and (b) persuade the court that this was a reasonable belief.

(3)

The reasonable belief must be held at the time of publication.

(4)

The “circumstances” to be considered pursuant to s 4(2) are those that go to whether or not the belief was held, and whether or not it was reasonable.

(5)

The focus must therefore be on things the defendant said or knew or did, or failed to do, up to the time of publication. Events that happened later, or which were unknown to the defendant at the time he played his role in the publication, are unlikely to have any or any significant bearing on the key questions.

(6)

The truth or falsity of the allegation complained of is not one of the relevant circumstances.

(7)

It is not only those who edit media publications who are entitled to the benefit of the allowance for “editorial judgment” which s 4(4) requires …”

It is not in dispute for present purposes that the statement arguably was or formed part of a statement on a matter of public interest. Argument has focused on the requirement at s 4(1)(b), “the Reasonable Belief requirement”. In Economou at [241] I held as follows:

“I would consider a belief to be reasonable for the purposes of s 4 only if it is one arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case. Among the circumstances relevant to the question of what enquiries and checks are needed, the subject-matter needs consideration, as do the particular words used, the range of meanings the defendant ought reasonably to have considered they might convey, and the particular role of the defendant in question.”

I am not persuaded by Mr Santos’ argument that the s 4 defence is not even arguably open to the defendants, so long as they maintain that they did not intend to publish at all. The argument is simple: a person cannot have a reasonable belief that the publication of a particular statement was in the public interest if (as these defendants maintain) he did not intend that statement to be published. This seems to me to be a point best addressed at a trial, in the light of the court’s conclusions of fact. It is unusual, but I do not think it is inherently improper, to plead alternative cases in this way. I approach this defence on the assumption that the court may reject the defendants’ denials of responsibility for publication, and go on to consider their state of mind as to the public interest.

Mr Santos’ next point is that the defendants have not put in any evidence to support the assertion of fact in the draft Amended Defence that they believed that publication was in the public interest. That is a point which deserves attention. My order of 2 November 2016 provided that failure to comply with its requirements would result in summary judgment being entered against the defendant who failed to comply. The requirements included an express provision that a witness statement which I required to be filed in support of an amendment application must “verify that the defendant believes the contents of the draft statement of case to be true”. None of the defendants’ witness statements does so. That said, the application notice contains a section signed by each of the defendants, in which it is stated that they will rely on the attached draft statement of case and that they believe “the facts stated in this section to be true”. In the circumstances, applying the guidance in the authorities, I would be prepared to grant relief from that sanction, pursuant to CPR 3.9. The breach was not serious or significant.

I would also proceed on the footing that the defendants may be able to prove at a trial that they did in fact believe that the publication of what they said was in the public interest.

In my judgment the first and second defendants’ application to amend must fail for more substantial and fundamental reasons. These are that, on the assumptions (i) that they are held responsible for publication, and (ii) establish that they held the necessary belief as a matter of fact, they have not pleaded nor could they hope to establish at a trial, any facts which could satisfy the Reasonable Belief requirement.

The case for these defendants has to be approached in the knowledge that it was they who spoke the defamatory words complained of. They were the interviewees. The third defendant was the interviewer.

The draft Amended Defence contains, in compliance with my Order, a section headed “WHY THE DEFENDANTS’ BELIEF WAS REASONABLE”. It is short, and it is convenient to set it out in full.

a.

The Defendants had, through their perusal of the Accounts, the registers and their knowledge of the way in which the Charity operated, gained credible information that OFAAL’s accounts disclosed significant discrepancies.

b.

The Defendants had attempted to raise the matters internally with the Claimant but had received no or no adequate response.

c.

The subject matters set out above are matters of general public importance.

d.

OFAAL is a small charity with little external oversight, and little publicity.

e.

Many of the members of OFAAL have little experience of the charity regime in the United Kingdom, of accountability and governance in the UK, and may have little experience in challenging and holding to account charitable organisations in the UK

f.

The accountability of OFAAL therefore depends to a large extent on the honesty and integrity of its Trustees and the ability of its members to question its trustees.

g.

The affairs of the Charity would otherwise stand very little scrutiny if limitation were put on legitimate protest and the raising of such questions as the Defendants have raised in the Videos.”

Paragraph (a) is acceptable as a matter of pleading, though woefully short on detail. I work on the assumption that it refers to imputations (a) and (b). On that assumption it is unfounded on the evidence; there was no such credible information. Paragraph (b) is again acceptable in principle, but lacking in clarity. It must be intended to rely on the facts pleaded in support of imputation (c). On that footing, for the reasons given above, it must fail. Paragraph (c) adds nothing to the case on the Reasonable Belief requirement. For all these reasons, the first and second defendants’ case must inevitably fail. There was nothing in the way of suspect or questionable financial conduct that they could reasonably have believed should be made public via the publications complained of.

But it goes further than this. Taking paragraphs (d) to (g) together the contention is, in summary, that it was reasonable to believe that the public should be told that there were reasonable grounds to suspect that, or (it may be) to investigate whether, the claimant was guilty of the frauds referred to in the videos, and the other alleged wrongdoing, because there were no other avenues through which those matters could be raised. That case seems to me plainly insufficient, on its face. These are serious allegations. It is a matter of common knowledge that charities are regulated by the Charity Commission. The fact that many OFAAL members are inexperienced in raising such matters goes nowhere. It is not alleged that these defendants were ignorant of the role of the Charity Commission, or unable to raise matters with them. The draft pleading fails to set out sufficient facts to found a reasonable belief that these publications were in the public interest.

It goes still further, because the evidence demonstrates that as a matter of fact the Charity Commission and the police had both been approached by these defendants, and the Charity Commission had informed them that there was no evidential basis for investigating or making findings of financial impropriety. I would readily accept that it may in some circumstances be legitimate to make allegations public even if they have been put to and rejected by the competent authorities. I do not say that a person could not reasonably believe that this was in the public interest. But no such circumstances are alleged in this case and I cannot see any disclosed in the evidence.

The third defendant’s position was different. He had not been involved in the facts in the way that the first and second defendants had. His role as the interviewer was closer to the role of the media, reporting the allegations of others. The draft Amended Defence does not reflect this, and does not as it stands set out a reasonable defence of public interest on his behalf. I suspect that is because in the short time available to him Mr Owen-Thomas was focusing on the position of the first and second defendants, who have taken the lead on the defence side. I could not give the third defendant permission to amend in the form of this draft. But nor can I reach the conclusion that he would be bound to fail on this issue at a trial. In his case, therefore, I am prepared to allow time for a re-cast defence of public interest to be prepared.

Any such defence would need to reflect what the evidence asserts about his role, and what he knew and did. In short, as recorded in my October judgment at [70], he says that he did not know either of the first and second defendants before 20 September 2014. As I read his evidence he was working on the basis of what he was told by others about the relevant matters. It might be said that he failed to make sufficient checks or enquiries, and failed to give the claimant a chance to comment before publication; but since his role in the publication is also uncertain at this stage I do not consider that the requirements for summary judgment are met.

I will need to set a tight, albeit sensible timetable for any further draft amended pleading on his behalf. But I will give him that opportunity and decline to find for the claimant on this issue in his case.