(1) Shakir Ali v Channel 5 Broadcast Ltd

Hearing dates: 5–7 February 2018

Contents

Introduction

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

The Claimants' only witnesses were the Claimants themselves.

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.

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

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

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.

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

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.

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

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

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.

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.

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.

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.

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

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), and if the rent...