(1) Shakir Ali v Channel 5 Broadcast Ltd

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Arnold
Judgment Date22 February 2018
Neutral Citation[2018] EWHC 298 (Ch)
Docket NumberCase No: HC-2016-002012

[2018] EWHC 298 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS

BUSINESS LIST (CHANCERY DIVISION)

Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

Mr Justice Arnold

Case No: HC-2016-002012

Between:
(1) Shakir Ali
(2) Shahida Aslam
Claimants
and
Channel 5 Broadcast Limited
Defendant

William Bennett and Felicity McMahon (instructed by Hamlins LLP) for the Claimants

Antony White QC and Tom Blackburn (instructed by Lee & Thompson LLP) for the Defendant

Hearing dates: 5–7 February 2018

Mr Justice Arnold

Contents

Topic

Paras

Introduction

1

The witnesses

2–9

The Claimants' witnesses

2–4

Channel 5's witnesses

5–7

Missing witnesses

8–9

The facts

10–140

The Claimants

11–15

The Claimants' tenancy of the Property

16–21

The possession proceedings

22–34

The Claimants' position as people about to be made homeless

35–43

The telephone conversation on 30 March 2015

44

The difference between enforcement by a County Court Bailiff and by an HCEO

45–46

The Writ of Possession

47–48

DCBL

49–50

Professional standards for HCEOs and HCEAs

51–54

CPWTIA

55–66

The Main Contributor Release Form

67

The production bible

68–69

The eviction

70–115

At what point did the Claimants become trespassers in the Property?

116–117

After the eviction

118

The story synopsis

119–120

Postings by the Ahmeds on social media

121–122

Mrs Aslam's letter to the Council dated 18 May 2015

123

Mr Ali's telephone call to BFL on 17 June 2015

124–125

The Programme

126–137

Viewing figures

138

Mr Ali's email to the Head Teacher dated 2 October 2015

139

Has CPWTIA led to a change in practice?

140

Did the Claimants have a reasonable expectation of privacy?

141–170

The general principle

141

Assessment

142–170

Evictions

147

Dignity

148

Personal appearance

149

Photography

150–151

Effect on children

152–155

Scale and duration of publication

156

Events in the street

157–162

The consequences of one's own unlawful conduct

163

Political figures

164–166

Tone

167

Previous publications

168

Overall assessment

169–170

Did the Claimants consent?

171–179

Balancing the Claimants' Article 8 rights and Channel 5's

180–210

Article 10 rights

The law

180–183

Assessment

184–197

Public interest

184–197

Fairness and accuracy

198–205

Editorial discretion

206

The OFCOM Code and OFCOM adjudications

207–209

The ultimate balancing test

210

Damages

211–220

The law

211–214

Assessment

215–220

Introduction

1

On 2 April 2015 the Claimants, Shakir Ali and Shahida Aslam, were evicted from the home they had been renting at 137 Fanshawe Avenue, Barking, Essex (“the Property”) by High Court Enforcement Agents (“HCEAs”) enforcing a Writ of Possession obtained by their landlord Rashid Ahmed. The eviction was filmed by a television production company called Brinkworth Films Ltd (“BFL”). Edited footage of the eviction was broadcast by the Defendant (“Channel 5”) as part of a programme (“the Programme”) in the third series of a strand called Can't Pay? We'll Take It Away (“CPWTIA”). The Programme has been viewed by 9.65 million people. The Claimants contend that the broadcasting of the Programme amounted to misuse of their private information and claim damages. Channel 5 denies that the Claimants had a reasonable expectation of privacy, and in the alternative contends that the balance between the Claimants' right to respect for their private life and Channel 5's right to freedom of expression comes down in favour of the latter due to the public interest in the matter. This might appear to be quite a narrow dispute, but it involves a surprisingly complicated factual and legal background. I am grateful to all four counsel, in particular for the assistance they gave me on the landlord and tenant issues.

The witnesses

The Claimants' witnesses

2

The Claimants' only witnesses were the Claimants themselves.

3

Counsel for Channel 5 submitted that Mr Ali was a highly unsatisfactory witness of little credit. I agree that he was an unsatisfactory witness: he frequently gave long, rambling answers which failed to respond to the questions he was actually being asked, and he continued to do so despite several interventions from me asking him to focus on the questions. Moreover, some of his evidence was confused, and he tried to resile from an important concession made in his witness statement. On the other hand, he volunteered some information which was potentially adverse to the Claimants' case. Overall, I consider that Mr Ali was endeavouring to give truthful evidence, but he was not a wholly reliable witness. It follows that his evidence must be treated with caution, but I do not reject it entirely.

4

Counsel for Channel 5 submitted that Mrs Aslam was also an unsatisfactory witness. I think this criticism is slightly unfair: Mrs Aslam understandably became rather emotional when giving evidence. In any event, what matters more is that Mrs Aslam adopted her husband's evidence.

Channel 5's witnesses

5

Malcolm Brinkworth is a television producer. He is the founder and a director of BFL. He was a straightforward witness.

6

Paul Bohill was the senior of the two HCEAs who carried out the eviction. He has worked for Direct Collection Bailiffs Ltd (“DCBL”) since the end of 2014. He was also a straightforward witness, but for the reasons explained below I do not accept his evidence on two points.

7

Simon Raikes was a Factual Commissioning Editor at Channel 5 from 2012 to 2015 who was responsible for commissioning CPWTIA. He was not cross-examined.

Missing witnesses

8

Understandably, neither side called either Rashid Ahmed or his son Omar Ahmed, who featured quite prominently in the Programme. I mention this only because it is necessary for me to bear in mind that I have not heard their side of the story regarding their dispute with the Claimants except in so far as it can be gathered from the evidence before the Court. The same goes for Munawar Hussain and Mohammed Hanif who appear to have acted as agents respectively for the Claimants and Rashid Ahmed at the time that the Claimants became tenants of the Property.

9

Channel 5 did not call any of the film crew who filmed the eviction, namely Chris Christodoulou (assistant producer), David Rea (cameraman) and Joel Bartholomew (sound recordist). Nor did Channel 5 call either Katy Ferguson, the edit producer at BFL, or Susan Crook, the series producer at BFL. Counsel for Channel 5 submitted that it was unnecessary to do so, since the unedited raw footage (“rushes”) formed an accurate and fairly comprehensive record of what had transpired during the eviction, since it was not alleged that the filming was unlawful and since Messrs Brinkworth and Raikes had addressed the editorial processes involved in making the Programme. I accept all that, and I draw no inference adverse to Channel 5 from its failure to call the missing witnesses. It follows, however, that there is no evidence from the film crew to explain what happened on the day of the eviction. Nor is there any evidence from either Ms Ferguson or Ms Crook as to their decision-making.

The facts

10

I shall set out my findings of fact topic by topic and approximately chronologically in relation to each topic. I have found it convenient also to consider and resolve in this section of the judgment certain background legal issues.

The Claimants

11

Mr Ali, who is also known as Shakir Qureshi, was born in Pakistan in 1966. Mrs Aslam was born in Pakistan in 1969. They were married in 1997. They came to the United Kingdom in 2001. They have two children, a daughter born in January 2003 and a son born in January 2004.

12

At one time Mr Ali worked in a kebab restaurant. By the period that is relevant to this case, he was self-employed, although his evidence did not reveal in what capacity. It appears from the evidence that Mrs Aslam did not work.

13

Mr Ali has had a heart condition and high blood pressure since 2012. On 2 April 2015 he was still taking a lot of medication. In addition, sometime in March 2015, he had had accident and injured his left foot. For this reason, on 2 April 2015 his foot and lower leg were encased in a surgical boot and he was using crutches.

14

From approximately 2013 to 2015 Mr Ali was the Media Secretary of the Pakistan Muslim League (Nawaz) (“PML(N)”) in the UK. The PML(N) is a centre-right political party in Pakistan. The role of Media Secretary in the UK was an unofficial, unpaid one. Mr Ali was not a politician, but he had strong political views. He and a number of other Britons of Pakistani origin had set up their own group in the UK as followers and supporters of the PML(N). Mr Ali was also the Chairman of Karwan-e-Fikr, a political think tank and discussion group.

15

In his capacity as Media Secretary of PML(N) in the UK or as Chairman of Karwan-e-Fikr, Mr Ali gave a number of interviews to, or otherwise participated in, a number of television programmes which were of interest to the Pakistani diaspora in the UK. Recordings of these are available on YouTube.

The Claimants' tenancy of the Property

16

On 1 December 2012 the Claimants became tenants of the Property. The tenancy agreement between the Claimants and Rashid Ahmed of that date provided that it was “intended to create an assured shorthold tenancy as defined in section 20 of the Housing Act 1988 and the provisions for the recovery of possession by the landlord in section 21 shall apply accordingly” (clause 2). The term of the tenancy was 6 months and the monthly rent was £1,325 payable in advance (clause 1). Interest was due on late payments of rent (clause 10),...

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    • Court of Appeal (Civil Division)
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