Alsaifi v Trinity Mirror Plc & Anor

This is the Claimant’s appeal against the Order of Master McCloud of 21 December 2017 dismissing his claim and entering judgment for the Second Defendant. I granted permission to appeal on 11 April 2018. Before I turn to the decision appealed, I need to set out some of the history to the claim. As I explain below, judgment has already been entered for the First Defendant on the claim (see [7] below). The proceedings now concern only the Second Defendant.

I can gratefully adopt the description of the background and detail of the Claimant’s claims from Warby J’s judgment of 27 June 2017 ([2017] EWHC 1444 (QB) [3]-[9]). The claim arises from the publication online of an article in the Newcastle Chronicle published by the First Defendant from 15 March 2016 (set out in [25]). Three slightly different versions of the article were published, following some amendments that were made at two points, but the differences in the versions are not material for present purposes. The Second Defendant was sued on the basis that it was also liable for part of the publication, having given a statement to the media part of which appeared in the final three paragraphs of the article. The article was a purported report of a decision of the National College for Teaching and Leadership (“NCTL”) given on around 29 February 2016 (“the Decision Notice”) as a result of which the Claimant was prohibited from teaching.

Subsequently, the Decision Notice of the NCTL and the order prohibiting the Claimant from teaching were quashed by the High Court: [2016] EWHC 1519 (Admin) (Andrews J) on 24 June 2016.

When the matter came before Warby J, there were two applications for determination:

The Second Defendant had not issued any application itself, but it was a respondent to the Meaning Application. It filed a skeleton argument and made submissions to the effect that the Meaning Application was pointless. The Second Defendant accepted that the comments of its spokesperson included in the article were defamatory (at common law), but, as there was no application to determine the actual meaning as a preliminary issue, any ruling limited to whether the article was capable of bearing the Claimant’s meaning, “will not limit the defences which [the Second Defendant] may advance to the claim.”

I should note here that it was no part of the Second Defendant’s argument before Warby J that meaning had to be assessed in light of the decision in Curistan -v- Times Newspapers Ltd [2009] QB 231 (i.e. for the purposes of determining meaning, the parts of the article protected by privilege could not be treated as words complained of). The argument advanced by the Second Defendant was that it was only responsible for the publication of the last three paragraphs of the article, and the meaning had to be ascertained looking solely at those paragraphs.

In relation to the Summary Judgment Application, the Judge granted the application and dismissed the Claimant’s claim against the First Defendant. The Judge found (a) that the publication of paragraphs [1]-[13] was protected by privilege as the newspaper’s fair and accurate report of the NCTL’s decision (minor inaccuracies and 'tweaking' did not displace privilege ([74])); and (b) paragraphs [14] and [16] (insofar as they conveyed any defamatory allegation) were opinion ([85]). In consequence, he found that a claim against Trinity Mirror based only on paragraph [15] of the article was Jameel abusive:

In relation to the Meaning Application relating to the Second Defendant, the Judge concluded:

Having rejected the Second Defendant’s submission that the meaning should be assessed by considering only the last three paragraphs of the article, the Judge ruled (at [65]) that the words complained of against the Second Defendant were capable of bearing the meaning (“the Capable Meaning”):

“[The Claimant] had misconducted himself by inappropriate behaviour towards a 17-year-old pupil in the ways found proved by the NCTL in its Decision Notice; that he had thereby behaved in such a way as to justify his immediate suspension, subsequent dismissal, and ultimate prohibition from teaching; and that this last outcome was a pleasing and satisfactory one.” (underlining added)

Consequent upon his ruling, the Judge made an order which contained the following:

“(2)

The statement complained of in the claim against the Second Defendant is capable of bearing a meaning defamatory of the Claimant and is capable of bearing meanings that he had misconducted himself by inappropriate behaviour towards a 17 year old pupil in the ways found proved by the NCTL in its Decision Notice; that he had thereby behaved in such a way as to justify his immediate suspension, subsequent dismissal, and ultimate prohibition from teaching; and that this last outcome was a pleasing and satisfactory one.

(3)

The statements complained of are not capable of bearing any other meanings advanced by the Claimant.”

No party sought to appeal those orders.

No doubt encouraged by the success of the First Defendant’s summary judgment application, on 14 August 2017, the Second Defendant issued its own Application Notice seeking to dismiss or strike out the Claimant’s claim as having no real prospect of success, alternatively that it would be Jameel abusive to allow it to continue. Reliance was placed on [85]-[87] of Warby J’s decision on the Summary Judgment Application in relation to the submission that paragraphs [14] and [16] of the article were protected by a defence of honest opinion. A witness statement from the Second Defendant’s solicitor, Russell Ward, explained the basis of the applications.

The Second Defendant did not seek a determination of the actual meaning of the words (which would have required a trial of the preliminary issue).

The Second Defendant’s Application was heard by Master McCloud on 21 December 2017. Ms Wilson represented the Second Defendant and Mr Alsaifi appeared in person.

In her Skeleton Argument for the hearing, Ms Wilson made the following submissions:

The Claimant made several points in answer to the Second Defendant’s application. Principally, for present purposes, however, he complained that, as Warby J had found that the words complained of were capable of bearing the Capable Meaning, it could not be said that the defence of honest opinion was bound to succeed; a defence of opinion cannot protect defamatory allegations of fact. He filed evidence disputing that the allegations against him, which were the subject of the NCTL Decision, were true.

In respect of his argument in relation to honest opinion, the Claimant relied upon and referred to my decision in Alsaifi -v- Trinity Mirror plc & Another [2017] EWHC 2873 (QB) (Alsaifi -v- Trinity Mirror (No.2)). There, I had dealt with an application for summary judgment in a similar case arising from the publication of a subsequent article in The Chronicle. In that case, the Second Defendant was a spokesman for the Secretary of State who gave a statement that was quoted in the article reporting a later Court decision (see [3] above) which quashed the NCTL’s order banning the Claimant from teaching. The analogy was very close. Dealing with the Second Defendant’s contention that it was bound to succeed with a defence of honest comment, I said this [98]:

“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)

The Second Defendant has not satisfied me that the court would be bound to find that the words complained of only contain the expression of opinion. The meaning I have found the words are capable of bearing (see paragraph 50(iii)) arguably contains factual elements. The actual meaning has not been determined. Conventionally, if a defendant wishes to seek a ruling as to whether the words complained of are an expression of opinion rather than an allegation of fact, that is done by seeking to have meaning and fact/opinion determined as preliminary issues. It is only in clear cut cases that summary judgment would be granted against a claimant when neither meaning nor fact/opinion has been finally determined…”

The Claimant’s argument, relying on this case, was described by Ms Wilson as “wholly misconceived – that is a claim in respect of a different article.”

Dismissing the Claimant’s claim and entering judgment for the Second Defendant, the Master held (with the paragraph references in brackets):

The Claimant sought to appeal that decision. This is a difficult area of defamation law, conceptually, and I can only pay tribute to Mr Alsaifi’s efforts to articulate what he thinks is wrong. Granting permission to appeal, I considered that it was arguable that the Master had failed to note that the Capable Meaning included a defamatory allegation of fact (shown underlined in [9] above). As such, any defence of honest opinion was not going to protect the publication of such an allegation. In relation to the dismissal of the claim as Jameel abusive, I noted:

“Insofar as the Master also dismissed the Appellant’s claim on the grounds that it was Jameel abusive, it is arguable that the Master has failed to consider and apply the principles from Ames -v- Spamhaus Project Ltd [2015] 1 WLR 3409 [33]-[36] guiding the exercise of this ‘exceptional jurisdiction’, in particular (from [36]) ‘If a libel claimant has a real prospect of establishing a tort which is real and substantial, the court should be very reluctant to conclude that it is unable to fashion any procedure by which the claim can be adjudicated in a proportionate way, and that the only remaining way of dealing justly with the case is to dismiss it’. These principles were applied – on similar facts – in Alsaifi -v- Trinity Mirror [101]-[106] and it is arguable that many of the same considerations apply in this case.”

The Second Defendant filed a Respondent’s Notice on 1 May 2018. Its primary position is that the Master’s decision should be upheld for the reasons she gave. However, in the alternative, the Second Defendant advanced the following arguments:

The Claimant essentially adopts the points made when permission to appeal was granted. He also complains that the Second Defendant should not be able to rely upon the defence of honest opinion or truth because the facts reported about his case are not correct.

Ms Wilson’s submission on the appeal is succinct. The Master considered Warby J’s judgment and, although not bound to follow it, gave due weight to it. She was right, for the same reasons as Warby J had found, that paragraphs [14] and [16] were expressions of opinion and that a defamation claim based only on [15] against the Second Defendant was just as much an abuse of process as the claim against the First Defendant had been found to be.

As I have noted (see [12] above), Ms Wilson accepts that, at least arguably, the Capable Meaning contains a defamatory allegation of fact. She contends, however, applying Curistan, Warby J’s finding that the publication of paragraphs [1]-[13] of the article was protected by reporting privilege affected the “actionable meaning upon which [the Claimant] could maintain any claim”.

There is no doubt that this is a new point. It was not argued before Warby J when he was deciding the issue of capable meaning (and if correct, the principle would apply equally to determination of the meanings that words are capable of bearing). Perhaps more importantly, it was not argued before Master McCloud.

Relying upon this, Ms Wilson contends that the effect of Curistan in this case is that the meaning of paragraphs [14]-[16] of the article must be ascertained without regard to the privileged parts (paragraphs [1]-[13]).

In relation to Jameel abuse, Ms Wilson argues that, as paragraphs [1]-[13] have been held to be protected by qualified privilege, the Claimant “cannot obtain vindication in respect of the serious and specific allegations about him in that part of the article.”

I asked Mr Alsaifi, at the hearing, to tell me what he hoped to achieve by his claim against the Second Defendant. He identified three things:

I should start by setting out the final three paragraphs of the article that contain the words complained of against the Second Defendant (using the same paragraph numbers):

This has been held to bear the Capable Meaning, which contains a defamatory allegation of fact ([9] above).

Warby J held that:

It might be argued that, having not appealed the Capable Meaning, it is too late now to raise a point on Curistan.Nevertheless, in my judgment and on the facts of this case, Curistan makes no difference.

The finding that paragraphs [14] and [16] were an expression of an opinion was only of limited assistance to the Second Defendant. The factual element of the Capable Meaning arises, substantially if not entirely, from paragraph [15]. The Master was right to decide: (a) that [14] and [16] were likely to be protected by a defence of honest opinion; and (b) that the Claimant has no real prospect of showing that Mr Lewin did not believe the opinion he expressed. However, when dividing up a publication like this, it was necessary to bear well in mind the Capable Meaning. That showed that a defamatory allegation of fact was capable of arising from the publication, on which the defence of honest opinion could have no bearing. The fact that this arose from a single paragraph ([15]) did not diminish that paragraph’s capacity to cause reputational harm. The short point is that the honest opinion defence was not a complete answer to the Claimant’s claim.

It is right that, to the extent that the Second Defendant was left to face a claim based on a single paragraph, its position was the same as that of the First Defendant. Principally for that reason, Ms Wilson submits that it should suffer the same fate as the claim made against the First Defendant.

I therefore turn to consider whether the Master was correct to dismiss a claim based on this paragraph as Jameel abusive.

The Court has jurisdiction to stay or strike out a claim where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures: in other words, “the game is not worth the candle”: Jameel [69]-[70] per Lord Phillips MR and Schellenberg -v- BBC [2000] EMLR 296,319per Eady J. The jurisdiction is useful where a claim “is obviously pointless or wasteful”: Vidal-Hall -v- Google Inc [2016] QB 1003 [136] per Lord Dyson MR.

Nevertheless, striking out is a draconian power and it should only be used in exceptional cases: Stelios Haji-Ioannou -v- Dixon [2009] EWHC 178 (QB) [30] per Sharp J.

It is not appropriate to carry out a detailed assessment of the merits of the claim. Unless obvious that it has very little prospect of success, the claim should be taken at face value: Ansari -v- Knowles [2014] EWCA Civ 1448 [17] per Moore-Bick LJ and [27] per Vos LJ.

The Court should only conclude that continued litigation of the claim would be disproportionate to what could legitimately be achieved where it is impossible “to fashion any procedure by which that claim can be adjudicated in a proportionate way”: Ames –v- Spamhaus Project Ltd [2015] 1 WLR 3409 [33]-[36] per Warby J citing Sullivan –v- Bristol Film Studios Ltd [2012] EMLR 27 [29]-[32] per Lewison LJ.

Although not at the forefront of Ms Wilson’s submissions, some caution needs to be adopted where part of the the alleged abuse is said to arise from the contention that the claimant’s reputation is already so damaged that nothing of value could be salvaged from the proceedings (see discussion in Alsaifi -v- Trinity Mirror (No.2)[101]-[105]).

In light of the Claimant’s stated objectives ([28] above), it is important to note that the vindication that a claimant hopes to obtain from defamation proceedings relates not only to the past damage to reputation in the eyes of those who read the words complained of, but can also legitimately include protection against the risk of future reputational harm: Sobrihno -v- Impresa Publishing SA [2016] EMLR 12 [54] per Dingemans J). In many cases, where there is continued publication by a defendant, one aspect of the prevention of future harm may be provided by a final injunction. But the principle is wider than that, as Tugendhat J explained in McLaughlin -v- London Borough of Lambeth [2011] EMLR 8 [112]:

“It is true that the number of addressees of the emails complained is small. But they are all persons who are or have been concerned with education and with the School. The words complained of are in electronic form. They may be stored indefinitely, and easily searched and republished, both generally to those concerned with education, and in particular to others in the Department for Education or in the first defendant. The damage so far suffered by the claimants may be small... But the main point of defamation proceedings is vindication. Vindication includes preventing, or reducing the risk of, future publications of the words complained of. The fact that the damage suffered so far may be small (if it is), is no indication of the extent of the damage which is prevented from occurring in the future, when a claimant in a libel action obtains a public retraction or a judgment in his favour from the court.” (emphasis added)

A well-known feature of harm to reputation is the propensity for defamatory statements “to percolate through underground channels and contaminate hidden springs”: Slipper -v- BBC [1991] 1 QB 283,300per Bingham LJ. As a result, a claimant may encounter a defamatory allegation being raised with him/her by someone many years after the libel action against the original publisher was concluded. Where libel proceedings have been pursued, such a person is equipped, either by means of an apology or retraction from the original publisher or a judgment in his or her favour, to refute the defamatory statement whenever and wherever it resurfaces in the future.

In respectful disagreement with the Master, I am satisfied that the Claimant’s claim should not be dismissed as an abuse of process.

At the heart of any assessment of whether a claim is Jameel abusive is an assessment of two things: (1) what is the value of what is legitimately sought to be obtained by the proceedings; and (2) what is the likely cost of achieving it?

But it is clear from Sullivan that this cannot be a mechanical assessment. The Court cannot strike out a claim for £50 debt simply because, assessed against the costs of the claim, it is not ‘worth’ pursuing. Inherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of vindicating legal rights – as part of the rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigants but society as a whole.

In assessing the value of the Claimant’s claim, the starting point is that the Second Defendant accepts that he has a viable claim for defamation arising from the publication of the three paragraphs of a statement that its representative, Mr Lewin, made to the publishers of The Chronicle. Were this not the case, it would not need to have recourse to the Jameel jurisdiction to strike out the claim. As such, the Court should only prevent the Claimant from pursuing this claim, in the exercise of his legal rights, on a clear and compelling basis.

I am satisfied that the Claimant can identify something tangible or of value for which it is worth fighting; for him, it is vindication (in the extended sense I have explained in [41]-[42] above).

As is clear from Mr Ward’s witness statement ([29] above), the Second Defendant has stated an intention to defend defamatory allegations of fact, reflected in the Capable Meaning, based on a defence of truth. Whether the Second Defendant does defend the publication on this basis remains to be seen. Other responses to the claim are available and, no doubt, the Second Defendant will consider all options open to it. But if it does rely upon a defence of truth, then that opens the prospect that the Claimant can, if ultimately successful, obtain vindication from the allegation(s) made against him. It is quite clear to me that this is something that is of genuine concern to the Claimant and I do not doubt the sincerity of his attempts to secure it. He feels wronged by the findings of the NCTL and has sought to challenge them ever since they were made. In particular, he denies that there was ever any touching (sexual or otherwise) of Miss A.

In some cases, an effort to attack findings like these by a subsequent libel action might be impossible or even impermissible (e.g. if it amounted to a collateral attack on findings of the court). The Claimant’s case is unusual in this respect and he is, perhaps, in a particularly unfortunate position.

A significant part of Ms Wilson’s submissions relies upon these factors as demonstrating that the Claimant's claim against the Second Defendant is Jameel abusive. She relies particularly upon Warby J’s conclusion in [91] ([7] above) that the three paragraphs for which the Second Defendant is responsible do not “add materially to the overall defamatory sting of the article”. The reputational harm that is caused by the publication is therefore the same, with or without the three paragraphs. As such, she submits, nothing of value can be achieved.

I do not accept this submission, or Ms Wilson’s suggestion that, if I were to reach a different conclusion from Warby J, our judgments would be “inconsistent”. In the underlined passage in [91] from his judgment, it is clear that a significant part of the Judge’s conclusion was that, judged against the article as a whole, it would be illegitimate and disproportionate to allow a claim against the First Defendant for publication of a single paragraph of a statement made by the Second Defendant. In my judgment there are important differences between the claim against the First Defendant based on paragraph [15] and a claim against the Second Defendant on the same paragraph.

I also reject Ms Wilson’s submission that the Claimant cannot now obtain vindication for the allegations made in the part of the article for which the Second Defendant is responsible. Plainly he can, for the reasons I have explained ([48] above). The fact that the Claimant is unable to bring a libel claim against the publishers of The Chronicle makes the claim against the Second Defendant more (not less) important or valuable to him. It now affords him the only opportunity to obtain vindication for the defamatory meaning conveyed by the article; an article which is still being published online. I accept that the claim against the Second Defendant, if successful, may provide only limited opportunity to repair past reputational harm, and is extremely unlikely to lead to an injunction being granted against the First Defendant regarding further publication of the article. But there is no reason to suppose it cannot effectively provide him with some redress against past harm and it would give him protection against future reputational harm.

If, as it has indicated it may, the Second Defendant does rely upon a defence of truth, unless disposed of in some other way, the proceedings will resolve with a determination of whether the allegations made against the Claimant (that were the subject of the NCTL’s – now quashed – findings) are proved true. Everything would, of course, depend upon the ultimate parameters of the litigation, but if the Claimant were to prevail against a plea of truth, several tangible benefits would potentially follow:

Based on this assessment, I am satisfied, at this stage, that there is something of real value to the Claimant that could be achieved by these proceedings. In my judgment, it certainly cannot be said that this claim is obviously pointless.

In terms of the other side of the analysis ([44] above) – the cost of achieving the identified benefit – that clearly favours the Claimant. In her judgment, the Master did not consider whether it would be impossible “to fashion any procedure by which that claim can be adjudicated in a proportionate way”: Ames –v- Spamhaus Project Ltd. In fairness, she can hardly be criticised for this. No defence had been pleaded and the time for filing one had not arrived. Some general indications are given in the witness statement of Mr Ward as to possible defences upon which the Second Defendant might rely, but that is no substitute for seeing the pleading and being able to identify the issues and the parameters of the litigation.

No costs budgets or other estimates of costs were before the Master. It follows that it would have been impossible for her to have formed anything other than a very broad and impressionistic assessment of the likely costs. It comes as no surprise, therefore, that she did not embark on this exercise.

These factors point firmly towards the conclusion that, at this stage of the case, it is impossible fairly to reach the conclusion that continued litigation of the Claimant’s claim will yield no tangible or legitimate benefit to the Claimant proportionate to the likely costs and use of court procedures to achieve it. As I noted in Alsaifi -v- Trinity Mirror (No.2) [102]:

“… 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.”

Precisely the same can be said about this claim.

For the reasons I have given, I am satisfied that the Master should not have dismissed the Claimant’s claim as an abuse of process. As it is not suggested that an honest opinion defence could dispose of the whole of the Claimant’s claim, the Second Defendant was not entitled to summary judgment on that basis. The Order of 21 December 2017 will be set aside. I will hear submissions as to the appropriate order to be made consequent on this judgment.

I should deal with one further matter. At the hearing, the Claimant sought an order granting him judgment on his claim pursuant either to CPR Part 24 or s.8 Defamation Act 1996. No time was taken up with this. There are several reasons why such an order cannot be justified, but the substantive one is that the Claimant cannot satisfy the requirements for a judgment to be entered against the Second Defendant on either basis. The nature of the potential defences available to the Second Defendant is set out in Mr Ward’s witness statement. The issues they raise could not fairly be determined on any summary basis at this stage of the claim.