Mirza & Anor v Ali & Ors

This is a reserved decision following a Disposal Hearing on 28 April 2021, heard remotely by telephone and at which the Claimants were in attendance and represented by their Direct Access Counsel, Mr Hirst. The Disposal concerns the claims against First, Second and Third Defendants, none of whom were present at the hearing. The claim against the Fourth Defendant was settled by consent earlier this year. For the purposes of this judgment, therefore, the collective term “Defendants” means the First, Second and Third Defendants unless otherwise stipulated. Again, unless stipulated, nothing I express below intends to refer to the Fourth Defendant.

The hearing was listed for 1 February 2021 but adjourned owing to a late appearance on behalf of the Second Defendant. The Second Defendant was represented by a Solicitor at that hearing, only instructed for the specific purpose of seeking an adjournment and in anticipation of instructions from the Second Defendant to set-aside the default judgment dated 8 August 2019. The Claimants did not object to the adjournment application as it enabled them to ensure personal service of the hearing bundle on the First and Third Defendants.

As matters transpired, no application was subsequently issued by the Second Defendant to setaside. But for the limited representation on 1 February 2021, none of the Defendants have taken any active part in the claim following service of the Claim Form, hence the default judgment, through to the Disposal Hearing on 28 April 2021. There is no evidence I am asked to consider on behalf of the Defendants.

Time was taken at the commencement of the hearing by Mr Hirst taking me through the careful and comprehensive material assembled by the Claimants by which they establish that the Defendants have had ample notice of the hearing and been provided with the relevant materials had they wanted to participate. I was referred to the principles in Sloutsker v Romanova[2015] EWHC 2053 (QB) applicable where a remedies hearing proceeds in the absence of, as here, litigants in person. I expressed satisfaction at the commencement of the hearing that, in consequence to the meticulously prepared and presented materials, it was fair to proceed and that I was satisfied that the Defendants knew about the hearing but had chosen not to attend. I remain so satisfied, having again reviewed that material in the course of this reserved judgment.

This is as follows:

As against the First Defendant, the Claimants rely upon two publications:

As against the Second and Third Defendants, the Claimants rely upon seven articles or publications:

The detailed Particulars of Claim pleads specific meanings for all of the publications.

I have carefully read the transcript of the First Publication, as set out as Annex 1 to the Particulars of Claim. Consistent with his non-appearance, there has been no challenge to the accuracy of the transcript by the First Defendant. This was a video published on or around 14

The transcript illustrates what was an extended and at time garrulous monologue by the First Claimant. The First Defendant’s messages and statements present in a mixed and repetitive manner. However, whilst it may be difficult to decipher any underlying core evidence, logic or reasoning, the ensuing effect is clear and damaging. I agree with the Claimants pleaded case that the natural and ordinary and/or inferential meaning of the First Publication was that through operating and promoting an investment scheme in the form of Leverage, the First Claimant was:

I agree with the Claimant’s pleaded case that the meaning of this publication is that the Second Claimant had similarly facilitated, enabled or conspired in a Ponzi-scheme on those who had joined the scheme and that his involvement was responsible for behaviour that was best reported to Action Fraud, MIMIC Fraud Line or the Charity Commission.

The Claimants plead in their Particulars of Claim that by 12 June 2019, the date of its Statement of Truth, the First Publication had been shared on Facebook 12 times, “liked” 42 times and had recorded over 2864 viewings.

I have carefully read the Second Publication, as appears as Annex 2 to the Particulars of Claim.

The article suggests that despite the proliferation generally of fraud in society, an effective remedy for members of the public to remedy the problem is solely to target MEN. It names and suggests the Claimants should be part of that target. It suggests that their conduct will readily attract Police attention, in particular the First Claimant’s scams. It suggests that by reporting the Claimants to HMRC, investigation of their tax evasion will lead to investigation of their criminal activity, as is expressed to have been fraud, by the Police. The article clearly incites for such allegations to be raised against the Claimants by providing web links to investigative or administrative organisations such as HMRC Fraud Hotline or the Charities Commission.

I agree that the natural and ordinary and/or inferential meaning of the Second Publication at Annex 2 is that through operating and promoting an investment scheme in the form of Leverage, the Claimants were each guilty of having perpetrated a fraud on those who joined the scheme.

Seven publications created by the Second and Third Defendants are relied upon. The Claimants’ case is that the Second Defendant is a resident of Canada and the Third Defendant is resident within this jurisdiction. Together, the Second and Third Defendants jointly run a website that proclaims its purpose is to 'produce hard-hitting facts and opinion to build conversations on the issues that matter in the Muslim market‘. The Second and Third Defendants together maintain a website for that purpose www.muslimreviews.org ('Muslim Reviews') and a linked Facebook site that carries similar content ('Muslim Reviews FB'). The Claimants’ case is that that the Second and Third Defendants are jointly responsible in fact and law for the output on Muslim Reviews and Muslim Reviews FB. They are therefore joint tortfeasors in respect of these seven publications.

I have read and carefully considered all publications falling within this part of the claim. By way of summary, the extracted pages from the website, include a photograph of the Al Madina Mosque in Barking with inset photographs of five individuals including the Claimants. The banner headline to the photograph is “Al-Madinah Mosque Secretary Complicit in Leverage

The 17 November 2018 article entitled “Exposed: Did Ashfaq Siddique use his position as Secretary of Al Madina Mosque Barking to enable MEN’s “Ponzi Scheme”?” purports to elaborate the “public discourse” about the Claimants and draws upon the apparent insight of “a representative of Muslim Reviews” who had been present in “discussions”. The consequence of such discussion clearly implies that the Second Claimant had involved the Mosque in the dubious activities of MEN, despite him denying any impropriety. A sub-heading promises “We will look further at some of these claims”. It offers “several irrefutable evidences [sic] that suggests either Ashfaq Siddique used the mosque’s Good Will and his privileged position as Secretary to intently promote the questionable business of MEN – of that Al Madina Mosque’s management was entirely involved in the promotion of MEN, thereby disproving claims made by both MEN and Ashfaq Siddique”. There is thus a clearly intended impression of adverse association portrayed between the Second Claimant, MEN and the Second Claimant’s introduction and association of MEN with the Mosque. The article remarks that “MEN are accused of promoting an elaborate Ponzi scheme and taking advantage of vulnerable people’s money for their own business interests. It is also alleged that they may have engaged in the misuse of funds, including tax and accounting fraud”. It suggests ten things the Mosque should do or “think about” including: investigating an internal investigation; to consider whether the Second Claimant had a conflict of interest between his official role as Secretary to the Mosque and his “personal business interests”; to investigate whether the Second Claimant abused his role as Secretary by giving MEN preferential treatment; whether it could be established that the Second Claimant used charity funds for MEN projects; the connotation that if both Claimants had “brought the Mosque into disrepute” then then the Second Claimant should be removed from his office as Secretary.

The November 2018 publication provides readers with a pro-forma to use to report the First Claimant to HMRC. The opening instruction is the reader, as “A Good Samaritan” should complete the form whether a Leverage Member “who is owed money” or even if not : in respect of the latter “we encourage you to still report them – we have a version for you”. Whilst the form provides no specific allegation that might be presented to HMRC, it is utterly clear from the introduction to the form and preceding general narrative on the website the aim of the Second and Third Defendants was to incite any form of reporting to HMRC, even if without any foundation, in order to vex both Claimants and besmirch their reputations. The exercise sought specifically to undermine the Second Claimant’s reputation and appointment as Secretary of the Mosque.

Of significance is the December 11 2018 publication was published in response to a Before Action claim letter written on behalf of the Claimants. Far from there exercising caution in the face of an intimated legal claim, it sought to repeat the very allegations of defamation relied upon as subject to proposed legal claim. Having summarised the complaint against Muslim Reviews, the following paragraph and plain implication of the Claimants appears:

“The team at Muslim Reviews worked tirelessly, without financial reward or fame, to raising awareness of potentially fraudulent business propositions. Vulnerable cash-strapped Muslim were targeted, with our mosques and charities suddenly embroiled in unattainable goals – our work helped to limit MEN’s overreach from causing significant harm in our communities”.

Muslim Reviews Face Book site has 23,000 followers. I agree that the sizeable proportion of which are to be inferred as within the jurisdiction. As ever with web based publications, the recorded number of “likes” or “shares” does not necessarily indicate the overall traffic reading the publication. This information would only be accessible to the Second and Third Defendants who have, of course, played no part in the claim and therefore that information has never been made known.

As to the extent of publication, the pleaded case (again as uncontroverted) is that, as at the date of the Particulars of Claim:

The First of these publications had been shared on Facebook 12 times, liked 42 times and recorded over 2864 viewings;

The Second Publication on Facebook attracted 7 comments, 3 share and 17 likes;

The Third Publication on Facebook attracted 13 comments, 4 share and 15 likes (or

The Fourth publication attracted on Facebook comments, 3 shares and 10 likes;

The Fifth publication attracted on Facebook 3 shares and 9 likes;

The Sixth publication attracted 10 shares and 26 likes;

The Seventh publication attracted 2 shares and 15 likes.

The meaning, both individual and cumulative, of these seven publications is that the Claimants, together and individually, had with others run a scam, the fraudulent enterprise MEN, using a vehicle called Leverage to defraud money from hundreds of people using, to their further discredit, a mosque as a base to do so.

Mr Hirst has helpfully produced a tabulated summary of all publications as distils to seven principle false allegations to show which allegations feature where. I annex that table to this judgment because it provides a helpful visual depiction of the relationship between the range of the allegations to the extent of their publication, as I find occurred. Effect of the publications

In his Witness Statement dated 2 December 2019, the First Claimant explains the nature of his project since the 1990’s to establish a collaborative approach to business projects, particularly through social media, whereby the labour and contribution of a few can result in a considerably larger number coming together for mutual and co-operative benefit. Hence, MEN was a continuation of his previous work and experience and “Leverage” was its method. He explains how his role in MEN was limited to acting as a consultant or advisor for its concepts and business plans rather than specific products.

The First Claimant sets out a plausible explanation for the ultimate motive behind the publications, in that his brother in Dubai had had a dispute with a business partner, Jagger Babuin, who in turn was a connection of the Second Defendant. The First Claimant’s case is that Leverage was chosen by Babuin as a subject for attack in order to exert tactical pressure in the with his brother. It was therefore entirely in bad faith as well as vindictive towards the First Claimant who had no direct dispute with Babuin. Similarly, the Second Defendant had a grudge against MEN owing to it not having continued to use his marketing consultancy services. Ultimately, this developed into a co-ordinated conspiracy between the First, Second and Third Defendants intended to cause direct damage to the First Claimant.

The First Claimant describes having sustained serious harm to his reputation as an entrepreneur in consequence. He describes the sense of distress and fear caused both to him and to his family by the allegations. In social, religious and business terms, the First Claimant describes how relationships broke down or ceased because of the unwillingness of others to be associated with him. Even trying to rent office space proved difficult. He was asked not to enter the office of a local mosque. The escalating effect of the published allegations even caused parents of his childrens’ friends to avoid his children and any association with their family. His wife fears people might turn up at their home, having been incited to cause trouble owing to what they had read in the publications. The First Claimant maintains that potential business associates, or those proposing to provide services to him such as landlords, would frequently raise queries about the allegations in the publications having discovered them as part of usual internet research about him. Although not presenting any claim for specific loss, the First Claimant provides a specific example of a joint venture that collapsed upon his partner hearing of the allegations and withdrawing.

The First Claimant describes having sustained “irreparable damage” to his and his family’s reputation “for the foreseeable future” and so sets out a convincing basis why injunctive relief is required.

Evidence of the effect of the publications on the Second Claimant is set out in his Witness Statement dated 2 December 2019. He refers to his charity and voluntary work following a commended career in the Police. He describes the unequivocally expressed threats by the First and Third Defendants at a meeting with him in November 2018 to publish damaging material about him and his work at the mosque, a Charity. In a telephone call from the First Defendant the next day, the First Defendant made clear to the Second Claimant that the First, Second and Third Defendants would be adopting any tactics necessary, even if this meant publishing false allegations. There was mention of a publicity campaign.

The Second Claimant describes having sustained continuous harassment over many months, all he maintains were conscious decisions motivated by bad faith. He believes he has suffered a loss of trust and confidence by variously politicians, business contacts, investors, creditors and co-volunteers. Whilst also not presenting a claim for specific loss, the Second Claimant believes that financial opportunities have been lost owing to his loss of reputation. Including, for example, an inability to take up offers to work for the Police in retirement because, the Second Claimant anticipates, he would not be successful in the necessary subsequent security vetting process. He summarises having experienced distress, embarrassment and humiliation in his role as an experienced community volunteer, leader and trustee for which vindication is his primary goal. There remains a need for injunctive relief in circumstances where there has never been any process of apology or formal retraction.

Whilst the principles of assessment are familiar to the court, in fairness to the absent Defendants and consistent with the meticulous way in which, thoroughly and fairly, the Claimants through Counsel have presented their claim, I was referred to the recent reviews of such principles in Sloutsker v Romanova [2015] EWHC 2053 (QB) and in Suttle v Walker [2019] EWHC 396 (QB) at [44].

I am satisfied that I should grant the Claimants relief and award damages on the basis of their unchallenged Statements of Case because I have the jurisdiction to do so and the relevant legal threshold has been met. The awards of damages are intended to compensate each Claimant for the loss of reputation they each establish to have be incurred, to seek to restore as best as can be achieved the position had not the libels been published, to serve as an overt signal of their vindication and to compensate, as individuals, their feelings of hurt and distress.

In reading the various publications, I have had regard to the gravity of the allegations. I am satisfied these go to the root of each of the Claimant’s personal integrity, reputation and honour. I note and appreciate that these qualities sound on numerous levels, from the obviously personal in terms of family and friends, in the context of voluntary public service and further in the context of the Claimants’ respective faith and associations with, in particular, the Barking Mosque.

Whilst the underlying purpose or motive of the libels appears to have been to serve a collateral purpose (that is, to exert pressure in the dispute with the First Claimant’s brother), this provides no mitigation or qualification to the personal consequences for the Claimants. Whether ultimately intended to serve a direct or indirect purpose, the foreseeable effect of the publications was deliberate and malicious, without foundation or reasonable belief in the meaning of the publications. I accept the publications caused, individually and cumulatively, each Claimant meaningful distress and serious harm to reputation.

I remind myself that the Claimants evidence is that they never received any financial benefit from Leverage. Further, the First Claimant had transferred substantial personal sums by Summer 2018 to assist the refund process. The Defendants have never sought to justify or defend their allegations as true, neither has any of them ever sought (despite an 11^th hour intimation from the Second Defendant), to set aside the default judgment. I am accordingly satisfied on the Claimant’s evidence that the allegations were wholly false.

Although the publications share, at least in parts, material common to both Claimants, they each have separately been defamed and so I assess their damages severally. In terms of the awards to each Claimant reflecting joint libel, however, the First, Second and Third Defendants are both jointly and severally liable.

In the context of the extent of publication as relevant to the assessment of damages, I have already cited the viewing figures known and relied upon by the Claimants as at the date of the

I take into account that neither the First, Second nor Third Defendants have ever publicly retracted or apologised at any time. No undertaking not republish has ever been provided although, I am told, the Claimants believe that most of the publications had been removed from public access by the time of the hearing.

A modest qualification to the above observation, if only as should be mentioned for the sake of confirming it was evidence put before the court rather than having any mitigating effect in the assessment of damages, is the telephone call and subsequent e-mail sent by the Third Defendant to the First Claimant (but not Second) in January 2019 acknowledging that the First

I accept the Claimants’ emphasis upon the serious nature of allegations of fraud and dishonesty for those in positions of respect and trust such as they enjoyed. I accept their evidence as to the effect of the publications, though unchallenged, as reasonable and compelling. I reiterate that none of the Defendants have ever sought to justify their allegations or put forward any evidence in support. Significantly, many of the publications instead present as overtures to see if any recipient might have such evidence to contribute. Accordingly, there seems no mitigation I might take into account as part of the court’s necessary objective assessment of the Claimants’ alleged losses, again in the absence of any appearance or representation from the Defendants.

My attention has been drawn by Mr Hirst to various comparable quantum awards. In particular, Reachlocal UK Ltd v Bennett [2014] EWHC 3405 (QB) and Metropolitan International Schools Ltd v Designtechnica Corp [2010] EWHC 2411 (QB). I also have found helpful Greenaway v Poole [2003] EWHC 1735 (QB), Cray v Hancock (unrep.) 4.11.02 (QB) and Emlick v Gulf News (unrep.) 23.07.09.

I assess the First Claimant’s damages as :

I assess the Second Claimant’s damages as :

The circumstances of the publications, the absence of any form of retraction or apology and the availability of either the same or similar means for continuing such publications are such that it is appropriate for the First, Second and Third Defendants each to be restrained, whether by themselves individually, or by their agents or employees or howsoever from publishing or causing to be published the words complained of or any similar such words as are defamatory to each of the Claimants.

By way of the same reasoning, the publication of a summary of this judgment by way of relief under s.12 of the Defamation Act 2013 is appropriate.

Costs follow the event. The First, Second and Third Defendant should pay each of the Claimant’s costs, as incurred by way of respectively the instruction of solicitors, instruction of Direct Access Counsel and further sums as reflect their personal work in preparing and assisting in the preparation of their cases throughout. I add that I am quite satisfied significant personal work would have been incurred by each of them.

Given the Disposal Hearing was listed for a half day, I see no reason why I should not follow the presumption and summarily assess the entirety of costs. The time and expense incurred in directing a Detailed Assessment would be entirely disproportionate : even more so in circumstances where there has been no participation by the Defendants in the litigation throughout.

Two points, however, require further clarification in that exercise.

First, I would like to see copies of the invoices generated by the firm Bates, Wells and Braithwaite for work performed for the Second Claimant in the period 14.11.18 to 18.06.19. The figures alone, being a total of £16,656 plus VAT, would not immediately seem proportionate having regard to the subsequent work as required (and that I can observe from my involvement in case managing the claim to-date). However, I assume either the narratives to each of the invoices will provide further information. Or alternatively that some other brief explanation and introduction might be provided. Such information should, of course, be sent to the Defendants in the event they wish to comment in response to that further information. [However, only to that extent].

Secondly, Mr Hirst quite properly concedes that cost before the compromise agreement reached with the Fourth Defendant in December 2020 cannot fully be pursued against the retained Defendants and suggests at 25% reduction of the pre-December 2020 figures. I agree with that pro-rata approach. Although it may initially strike one as somewhat broad brush, I am satisfied it is nonetheless both logical and unavoidable in the absence of submissions to the contrary.

To achieve that reduction, the distinction between pre and post-December 2020 work presumably is to be achieved by deducting 25% from all invoices and fee notes dated before December 2020 before then summarily assessing the resultant sums. However, I ask the Claimants to confirm that this chronological approach is applicable having regard to whatever appears in the narratives for the respective fee notes and invoices. It could be, for example, that some of these fee notes after December 2020 still relate to work incurred before December 2020.

Upon provision of that information, costs will summarily be assessed on the papers.

I ask for a working draft Order following the handing down of this judgment that reflects the above decisions and provides for insertion of the relevant costs awards once assessed.

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