Sharif v Associated Newspapers Ltd (Rev 1)

Before the Court today are two separate libel actions. They have been brought by respective Claimants Mian Muhammad Shabaz Sharif and Imran Ali Yousaf in separate proceedings over the same Article published by the Defendant in the print and online versions of the Mail on Sunday on 14 July 2019 under the headline “Did the family of UK’S foreign aid poster boy steal taxpayers’ cash meant for earthquake victims?” (“the Article”). The online and print versions of the Article are substantially in the same terms and were illustrated by various photographs and captions. The text of the Article, as it appeared in print and online, is set out in the Appendix to this judgment, with paragraph numbers added.

Both the print and online versions included a particular graphic under the heading “How the dirty money was laundered” (“the Graphic”). It showed a map which included the UK and Pakistan and showed arrows to represent four stages of transactions that were marked:

“(1)

In Pakistan, cash is embezzled from state projects and taken in sacks to a man called Shahed Rafiq in Lahore.”

“(2)

Meanwhile, in the UK, honest residents take cash to a Briton called Aftab Mehmood in Birmingham to send to the relatives in Pakistan.”

“(3)

Mehmood sends the clean money in the names of fake investors to accounts held by the family of Pakistani official Shahbaz Sharif.”

“(4)

In Lahore, the honest Pakistani relatives of UK residents are paid with the dirty cash held by Rafiq.”

In the online version of the Article, the Graphic had a caption in the following terms:

“A flow diagram shows how some of the UK’s taxpayers’ cash was laundered by the politician. As much as £500 million of the UK foreign aid was poured into his former province, Punjab, by Britain’s foreign aid budget.”

Mr Sharif is the leader of the main opposition party in Pakistan and former Chief Minister of the Punjab province. Mr Yousaf is Mr Sharif’s son-in-law being the husband Mr Sharif’s daughter Rabia.

Mr Sharif issued his Claim Form on 29 January 2020. In his Particulars of Claim, he contended, so far as he is concerned, that the natural and ordinary meaning of the Article was:

“The Claimant is guilty, or that there are very strong grounds to suspect that the Claimant is guilty, of the embezzlement of hundreds of millions of pounds of public money while Chief Minister of the Punjab, all or most of the stolen money being British public money in the form of DFID aid to the province and using Britain to launder the stolen money, thereby cruelly depriving vulnerable victims of poverty and natural disasters, including in particular the victims of the devastating 2005 earthquake in Pakistan, of the vital aid and healthcare that the DFID money was intended to provide.”

There has been some correspondence between Mr Sharif’s solicitors and the Defendant’s solicitors in which an alternative formulation of the natural and ordinary meaning was advanced on Mr Sharif’s behalf as follows:

“(a)

The Claimant is guilty of being a party to and the principal beneficiary of the laundering of huge sums of stolen money in Britain; and

(b)

There are very strong grounds to suspect that the Claimant is guilty of obtaining the stolen money by his embezzlement of tens of millions of pounds of public money while Chief Minister of the Punjab, all or most of the stolen money being British public money in the form of DFID to the province, including aid intended for victims of the 2005 earthquake in Pakistan.”

Ms Page QC today submitted that this reformulated meaning was offered by the Claimant as an effort to agree the meaning with the Defendant. She made clear, however, that Mr Sharif stood by the meaning that was originally pleaded in his Particulars of Claim which, of course, includes both guilt and strong grounds to suspect meanings that are pleaded and set out in the Particulars of Claim.

Mr Yousaf issued his Claim Form on 13 July 2020. In his Particulars of Claim, he contends, so far as he is concerned, the natural and ordinary meaning of the Article is:

“(1)

That the Claimant was guilty of the most serious criminal misconduct in that he was secretly involved in knowingly receiving proceeds of theft or misappropriation of funds intended for charitable purposes;

(2)

That the individual admitting guilt was the ‘right-hand man’ of the Claimant and therefore undertook criminality under the direction and/or encouragement of the Claimant.”

The Defendant has not yet filed a Defence in either claim. Instead, the Court has directed that the following preliminary issues should be determined in relation to both claims:

In accordance with the now well-established practice for determination of meaning prior to service of a Defence, the Defendant has set out the natural and ordinary meaning that it contends is borne by the Article in relation to each Claimant. The Defendant contends:

The Defendant does not contend that the meanings it has advanced are not defamatory at common law. So, the second preliminary issue that the Court had directed should be determined is, in fact, not contentious between the parties and does not require resolution.

The law I apply in relation to resolution of the first preliminary issue is well settled and is set out in Koutsogiannis -v- Random House Group [2020] 4 WLR 25 [11]-[12].

In Sheikh -v- Associated Newspapers Ltd [2019] EWHC 2947 (QB), Warby J noted the following:

There are two other principles, that arise in this case, that have particular importance to the matters that have to be decided. The first is the Chase levels of meaning. They are explained in Koutsogiannis [13]. The second is the repetition rule; Koutsogiannis [15], Brown -v- Bower [2017] 4 WLR 197 [19]-[32], and Hewson -v- Times Newspapers Ltd & Anor [2019] EWHC 650 (QB) [35]-[42]. Extracting, particularly from Hewson, the proper application of

The modern and approved practice when the court comes to determine the natural and ordinary meaning of the publication in a defamation claim, which I have adopted in this case, is to read the words complained of without reference to the party’s contentions or submissions: Tinkler -v- Ferguson & Ors [2019] EWCA Civ 819 [9] in the judgment of Longmore LJ. The purpose of doing so is “to capture the Judge’s initial reaction as a reader” and only after doing so have I gone on to consider the parties’ pleaded cases and argument.

No evidence is admissible when determining the natural and ordinary meaning. I am aware, in general terms, that there are proceedings involving Mr Sharif in Pakistan. I have deliberately not read anything about those proceedings as they are irrelevant to the determination I have to make.

Ms Page QC asked the Court to note that a comparison of the rival meanings between the parties in Mr Sharif’s claim demonstrates that there is no dispute that the Article means at least that:

“...there are strong grounds to suspect that the Claimant was party to the embezzlement and laundering of tens of millions of pounds public money.”

The dispute, she contends, is over two principal areas:

Ms Page QC highlights, particularly, the following features of the Article. The broad impression is that substantial sums of UK foreign aid sent to Pakistan and the Punjab particularly have been stolen and money laundered. The Article identifies two sources of the laundered funds: the UK grant aid from DFID and kickbacks or commissions. There are two references to kickbacks in the Article, in [8] and [42]. In the latter paragraph, the investigators are said to have identified kickbacks and ‘commissions’ as the source of the funds. Ms Page QC submits that it is clear from the following paragraphs that this is said to involve Mr Sharif’s sons, and [45]-[46], she submits, indicate the scale of the money laundering that took place but the Birmingham laundering scheme is dealing with only part of the total picture.

Ms Page QC has advanced specific arguments that the part of the Defendant’s meaning that expands to include “close members of [Mr Sharif’s] family” should not be permitted. She has relied on Warby J’s decision in Spicer -v- The Commissioner of Police of the Metropolis [2019] EWHC 1439 (QB) [15], that:

“… the Court’s function [in a preliminary issue trial as to meaning] ... is to identify what is the natural and ordinary meaning of the Article, as it relates to the Claimant.”

She argues that allowing the meaning to expand beyond Mr Sharif and unidentified members of his family would risk potentially widening the parameters of a defence of truth to permit evidence of wrongdoing by people other than Mr Sharif. The meaning, she contends, should, for the reasons explained by Warby J in Spicer, concentrate on the defamatory allegation made in the Article against Mr Sharif personally.

Ms Simon-Shore, on behalf of Mr Yousaf, contends that the meaning of the Article as concerns him is Chase level 1. Mr Yousaf is introduced in the Article not by name but by description in [15] and then again in [29], as part of the family of Mr Sharif. Specifically, in [48]-[51], which is, trailed in [15], the Article clearly makes a specific allegation of guilt against Mr Yousaf.

Ms Simon-Shore did not draft the meaning advanced in the Particulars of Claim and, at the hearing today, she has advanced a revised meaning in the following terms:

“The Claimant is guilty of obtaining huge sums of stolen money by his embezzlement of millions of pounds of public money, all or most of the stolen money being British money in the form of DFID aid, including aid intended for victims of the 2005 earthquake in Pakistan.”

Arguably, that revised meaning is a more general meaning than the meaning that was advanced in the Particulars of Claim. Mr Caldecott QC did not object to this, perhaps understandably, given that the Defendant’s pleaded meaning is a form, in part, of a general meaning. It also includes a specific meaning in (3).

In his submissions, Mr Caldecott QC contended that it is important for the Court properly to identify the level of the bane that is included in the Article. Here, he submits, it would be clear to the reader that the bane in the Article consisted largely of the conclusions of the investigators. Also, whilst he accepts that the Article clearly tells readers that there has been money laundering, he submits it is less clear who is said to be responsible for it. Also, the Article divides, he submits, into two clear strands. First, there is the evidence of the money laundering and then the attempt to trace the original wrongdoing or source of that money. Mr Caldecott QC highlighted, in particular, [16]-[17], [24]-[25], [47], [55]-[57] and [61]-[62]. These paragraphs, he submitted, highlighted that, throughout the Article, the nature of the ongoing investigation into the original wrongdoing is drawn to the attention of the reader. That is distinct from the money laundering allegation which is very much stated as a fact in the Article. The clearest example of this, he submits, is in [47] which includes the words

“moving into” which tell the reader that this part of the investigation is very far from complete. [62] contains the important reference to the ongoing investigation into the sources of money that was laundered. The laundering allegations are dealt with in [29]-[30], [32]-[33], [40]-[46]. [29]-[30] contain very specific allegations about the receipt of the payments, and [40]-[44] consist of part of the narrative concerning the involvement of Aftab Mehmood. Mr Caldecott QC accepts that there are two strong statements from the investigators in [6] and in the online caption to the Graphic which refers to “how some of the UK’s taxpayers’ cash was laundered by the politician”.

There is also a material antidote contained in the Article which, Mr Caldecott QC argues, the ordinary reasonable reader would not ignore and which s/he would understand as influencing the overall message in the Article. The allegations are said to be a “political witch hunt”

As to Mr Yousaf, Mr Caldecott’s principal submission in support of his contention that the Court should reject Chase level meaning in relation to [48]-[51] is that they do not suggest that Mr Naveed was acting on the authority of Mr Yousaf.

I should state at the outset that, as part of reading the Article, at the beginning of this exercise once, as an ordinary reader would, I was not immediately struck that any particular distinction was being made in the Article between the embezzlement, or theft of the money, and then the laundering of it. The headline, for example, refers to, “...claims that tens of millions were embezzled and laundered in Britain.” With the benefit of the parties’ submissions, and a careful reconsideration of the Article, I can see that an argument can be raised that there is a difference of emphasis between these two phases of criminal activity and true it is, as Mr Caldecott QC points out that, in [47] particularly, it is said there are two clear phases of the investigation; establishment of the scale of the money laundering and “where and how the laundered funds were stolen”. Nevertheless, I did not initially detect that any significant difference was being made as to the level of guilt. Indeed, the fact that the money had been stolen from ERRA was evidenced by the guilty plea of Ikram Naveed in [48]-[51], identified as Mr Yousaf’s ‘right-hand man’. That has particular importance in relation to what the reader would understand was being said about Mr Yousaf’s involvement in criminal activity. Insofar as there were matters that required further investigation, the reader is told, in [55], “investigators are now examining evidence that other DFID funded schemes were embezzled.” In other words, the impression is that there is no doubt that the funds were embezzled. The investigation was really now focusing on how much and from where. The avenues of enquiry that were being pursued are then identified in [56]-[57].

Mr Caldecott QC argued that there is no necessary connection between those who launder money and those who carry out a criminal activity that gives rise to the need to launder the fund. I accept that, but that is not really a distinction that the reader is likely to find important. As Mr Caldecott QC accepts, the Article is clearly stating that there has been money laundering. There is a question as to precisely what was being laundered, but the victims clearly included UK public grant aid and the corrupt beneficiaries of this money laundering were identified clearly in [6] as Mr Sharif and his family, and Mr Yousaf, in [48]-[51] specifically.

On the authorities, my first impression is more likely to be a reliable indicator of the overall message conveyed to the ordinary reasonable reader than one that is produced only after considering skeleton arguments and performing, as I have said, a careful analytical exercise. Although [24] is a memorable paragraph from the Article, and contains the suggestion that investigators start by identifying suspicious financial transaction and then trace the money back to its origin, most readers would consider that money laundering logically follows some form of illegality. The laundering is necessary to cleanse the money of its criminal origin. To that extent, in the minds of ordinary readers, money laundering presupposes some anterior criminal activity. The real question in the Article is not whether the reader would detect that there had been criminal activity prior to the money laundering but whether they would conclude that Mr Sharif and Mr Yousaf had been involved in that criminal activity.

The starting point is there can be no doubt that the focus of the Article is upon Mr Sharif. He is the “poster boy”, the “top Pakistani politician”, who is identified in the very first paragraph of the Article, whose photograph is included to illustrate the Article, and who had been feted at receptions in Downing Street and the High Commission in Lahore. It is an important point that the headline is in the form of a question, but that is not, itself, determinative. Some Articles that start with questions may, in the body of the Article, very definitely steer the reader to the particular answer. Others in their presentation will genuinely leave readers wondering what the answer is. All depends on the terms in which the Article is written and the effect it has as a whole on the ordinary reasonable reader.

This is clearly a bane and antidote case. There are significant elements of bane in the Article, particularly [6]-[7], [10], [13], [17], [22], [26]-[29] (particularly “The report adds that [Mr Sharif] was the principal beneficiary of this money laundering enterprise”), [40], [42], [45], [47]-[51], and [55]. The Graphic, used to illustrate and explain the Article, is headed “How the dirty money was laundered”. The money laundering is presented to the reader as established fact, not something that gave grounds to suspect as Mr Caldecott QC readily accepts.

The antidote is limited. It appears first in [8], and then later in [59]-[60]. However, the rebuttal by Mr Sharif’s son, which receives slightly more prominence in the online Article, is very general and unfocused. The references to Guantanamo Bay and apartheid in South Africa are difficult to understand in the context of this denial. There is a clear suggestion that the allegations against Mr Sharif and his family were politically motivated by Imran Khan and were targeting a member of the opposition party, but overall, and measured against the detail of the charges that were contained in the rest of the Article, the denial is unconvincing. It would not be understood by the ordinary reasonable reader as casting any real doubt as to the conclusions of the investigation and the evidence presented in the Article. Perhaps, most importantly, the Article that immediately continues, in [61]-[66], with a firm denial of political motivation, a clear statement of the harm done to Pakistan by organised criminal activity, and a statement expressing the hope that, “theft and money-laundering of this magnitude will never happen again.” The effect of this is, at once, to undermine the little by way of antidote or denial that has been included immediately before that in the Article.

Turning the specific areas of controversy between the parties, in my judgment, it is clear that the Article was alleging that at least some of the money had been embezzled from foreign aid provided by the UK. Above the byline is a logo “End the £14bn foreign aid madness”. [7] includes a statement that investigators are convinced that some of the allegedly stolen money came from DFID funded aid project. The connection with the UK aid is emphasised throughout the Article in [2]-[3], [9]-[10], [15]-[16], [20]-[23], [48], [50]-[57]. It is difficult for the reader to conclude how much UK aid money has been stolen or embezzled but the overall impression is that it is a not an insubstantial sum. The second point in the online sub headlines identified that: “£500 million of UK foreign aid has been poured into [Mr Sharif’s] province Punjab.” How much of this sum has been stolen is not really clear, but it is certainly not trivial or de minimis. In my judgment, this is a significant element of the Article that ought properly to be reflected in the meaning.

By the same token, however, I accept Mr Caldecott’s submission that the Article makes a distinct allegation, which cannot be severed in the reader’s mind, that some of the criminal proceeds of crime that have been laundered were obtained as a result of the payment of kickbacks and commission. The Article is far from clear in explaining the distinction between kickbacks/commission and money embezzled from public funds, and how it was then laundered. The Graphic clearly indicates in (1) that the laundered cash has been “embezzled from state projects” but then goes immediately on to refer to the “bulging sack” which echoes

As to whether the meaning should include reference to Mr Sharif’s family, I prefer Ms Page’s submissions. The meaning should concentrate on the defamatory allegation levelled by the Article as it concerns Mr Sharif. I accept that it is quite clear, throughout the Article, that allegations are being levelled against Mr Sharif and his family, but that does not determine the question of the proper form of the defamatory imputation. It may be that a defence of truth might have to explain how the funds were illegally obtained and subsequently laundered, and that that may include allegations of involvement by members of Mr Sharif’s family. However, the principled approach is that the meaning sets out the proper parameters of the defence of truth if any is advanced. If the meaning itself includes alleged involvement of others beyond the Claimant, then that potentially opens up arguments - that are best avoided - as to the admissibility and relevance of facts included in a defence of truth that involve people other than the Claimant. Mr Caldecott QC accepted in his submissions that, as a matter of principle, a defence of truth would have to concentrate on the conduct of Mr Sharif. So, this is an argument more of form than of substance. Nevertheless, the principle identified by Ms Page QC is the correct one: the meaning must focus on the Claimant.

As to Mr Yousaf, in my judgment, the Article makes a clear allegation of guilt against him as set out in [48]-[51]. I reject Mr Caldecott’s submission that it would be material to the impression created in the reader’s mind that the Article does not state that Mr Naveed was acting on Mr Yousaf’s instructing. It would be clear from the reference to him as being Mr Yousaf’s “right-hand man”, and Mr Yousaf being the immediate beneficiary of £1 million of the embezzled funds, that he was personally involved. On the information provided in the Article, a reader would have to be exceptionally naïve to think that Mr Yousaf had no knowledge of, or involvement in, the embezzlement itself.

As to the more general meaning in Mr Yousaf’s case, the ordinary reasonable reader would conclude that Mr Yousaf could well be one of the members of the family of Mr Sharif that was being referred to when that generic term is used in the Article. Save in respect of the specifical allegation that I have dealt with, this allegation is of a very general nature. The ordinary reasonable reader would have nothing beyond the allegation of that family link.

Therefore, this is really like a case in which an individual is subject to an allegation that affects an entire class. If the allegation does identify what, particularly, is being said about the individual member, then the reader cannot reach any real conclusions about the level of culpability of the individual members of the class. The overall effect of the Article is to create suspicion as to the extent to which Mr Yousaf had benefitted as a member of Mr Sharif’s family. That is very much the way in which this affects Mr Yousaf in relation to that more general meaning that is captured by Mr Caldecott’s meaning, paragraphs (1)-(2).

For the reasons I have given therefore, in my judgment, the natural ordinary meaning of the Article as it affects Mr Sharif is as follows:

“Mr Sharif was party to and the principal beneficiary of the money laundering of tens of millions of pounds which represented the proceeds of his embezzlement, whilst he was the Chief Minister of Punjab, of substantial sums public money, including a not insubstantial sum of British public money that had been paid to the province in DFID grant aid and other corrupt payments received in the form of kickbacks or commission from government run projects.”

The natural and ordinary meaning of the Article as it affects Mr Yousaf is as follows:

“(1)

Mr Yousaf had received £1 million which, as he knew, had been embezzled from funds from Pakistan’s Earthquake Relief and Reconstruction Authority, which funds were meant to provide relief to the victims of the 2005 earthquake; and

(2)

there are strong grounds to suspect that Mr Yousaf was the beneficiary, as part of Mr Sharif’s wider family, of millions of pounds of laundered payments which had been embezzled from Pakistan’s public funding, including by kickbacks and commission, and including funds related to public development and welfare projects, and that Mr Yousaf knew that the monies received by him had been embezzled or stolen at the time of receipt.”

By way of further particular explanation for the forms of these meanings as I have captured them:

I should finally record, to repeat a point that as is practically common ground between the parties, that these meanings are defamatory of the respective Claimant at common law.

I have now to decide the issue of costs. Ms Page QC submits that the Court should make an order in favour of Mr Sharif and direct that the Defendant should pay the costs. She submits that, looked at in broad terms, the Claimant has been largely successful in the sense that a larger number of elements of his meaning have been found in the Court’s meaning. She says that this justifies the Court recognising that Mr Sharif is the ‘winner’ and that the starting point is that the costs should follow the event. She submits that if the Court makes an order that costs should be in the case then that in some way encourages parties to take points on meaning and to require the Court unnecessarily to adjudicate on meaning. If parties thought that they were at risk of an adverse costs order, that would lead to more realistic positions being taken by parties on the issue of meaning.

The Court obviously starts from the position that if there is a clear winner then usually costs follow the event. In many applications, it is a relatively straightforward exercise to decide whether a party has been wholly or largely successful. Often that will lead the Court to decide that, in justice, s/he should be awarded the costs (or a significant part of them).

Meaning applications are somewhat different. Firstly, they are a preliminary issue trial. That means that determination of the issue is being advanced. Ordinarily, meaning would be determined as one of several issues to be resolved at the final trial. Modern defamation practice has now recognised that there are very good reasons why meaning should be resolved as a preliminary issue early in the proceedings: see e.g. Morgan -v- Associated Newspapers Ltd [2018] EWHC 1850 (QB) [9]-[10]; and Bokova -v- Associated Newspapers Ltd [2019] QB 861 [3]-[10]. I have to say that my experience, both as a Judge and at the Bar, has been that the instances where parties are agreed about the natural and ordinary meaning in a defamation claim are so vanishingly few as to be statistically insignificant. The reality, in most defamation claims, is that there will be a genuine dispute about meaning between the parties that requires resolution by the court. It is desirable for that dispute to be resolved quickly and economically.

It has to be remembered that, where the Court has accelerated the determination of meaning as a preliminary issue, that is to remove it from being determined at the final trial. Where meaning is resolved at the final trial, unless there is justification for making an issue-based costs order (unlikely in most disputes about meaning), the costs of meaning would simply be swept up in the costs of the action. That means that a claimant could be wholly successful on the issue of meaning, yet ultimately lose the action if the court found for the defendant on a

I do not know ultimately who is going to be successful in this litigation at any trial. Even if it were possible to detect a clear ‘winner’ on the issue of meaning in this case, there is still a potential unfairness by making what is, in effect, an issue-based costs order at this stage. Although that party might have ‘lost’ the meaning issue, the party may yet ultimately ‘win’ at trial. In the ordinary course, therefore, the costs of determination of the preliminary issue of meaning should follow the ultimate event; the result of the action.

The circumstances in which, in my judgment, a Court is likely to be sympathetic to an application for costs following a preliminary issue trial of meaning is where the Court is satisfied that a party has adopted an unreasonable stance on the issue of meaning and that has caused unnecessary costs to be expended. One example might be a case in which a defendant advanced an argument that the meaning of the publication could not be Chase level 1 because

In my judgment, this case is a fairly typical example of litigants who have genuinely been unable to reach agreement about the meaning of an article. There is no clear winner, and no party has taken an unreasonable stance on the issue of meaning. In those circumstances, there is nothing to take this case out of the ordinary. There is no justification for departing from an order that costs of the preliminary issue should be costs in the case. Ultimately, the party that loses overall will pay the costs of determining meaning as a preliminary issue in these cases. __________

He’s the top Pakistani politician who’s been feted in No.10, met THREE aid Ministers and hosted Boris. Now, amid claims that tens of millions were embezzled and laundered in Britain, DAVID ROSE asks…

Did the family of UK’s foreign aid poster boy steal taxpayers’ cash meant for earthquake victims?

Johnson in Pakistan in 2016

• Shahbaz Sharif leads Pakistan's main opposition party and was a chief minister • Up to £500million of UK foreign aid has been poured into his province, Punjab • But, investigators claim, his family was laundering some of the money in Britain