Alaedeen Sicri v Associated Newspapers Ltd

Hearing dates: 2, 3 and 6 November 2020

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

I. INTRODUCTION

On the evening of 22 May 2017, the singer Ariana Grande gave a concert at the Manchester Arena. As the event came to a close a suicide bomber, Salman Abedi, detonated an improvised explosive device in the foyer. He murdered 22 and injured more than 800 people, many of them children and young people. This was the worst terrorist atrocity in the UK for over a decade. It inevitably led to an urgent countrywide investigation, led by the Greater Manchester Police (“GMP”).

At about 04:40 on 29 May 2017, armed police arrested the claimant, Alaedeen Sicri, at his home in Shoreham-by-Sea, West Sussex, on suspicion of offences contrary to the Terrorism Act. Within minutes, the GMP had issued a press release stating that a 23-year-old man had been arrested in Shoreham “in connection with the Manchester Arena attack”. In line with standard practice, the police did not name the claimant. This action arises from the fact that the defendant did.

From 06:45 onwards, the defendant published on its MailOnline website an article (“the Article”), reporting on the arrest of the claimant. Initially, no identifying information was provided. But details were added as the day went on. A version, published at 12:47, identified the arrested man, accurately, as a “trainee Libyan pilot”, gave a version of his first name, identified the location of his home, and gave other details capable of leading to his identification by some. Versions, published from 18:00, gave his name as Alaeedeen Zakry, an alternative spelling, and told readers (again accurately) that he “runs an online marketplace for Libyans from his Sussex home”. From 18:21, the Article gave the conventional spelling of his name, and a number of additional details. By this time, he was identifiable to the world at large.

The reason for the claimant's arrest was that records showed he had received a telephone call from Salman Abedi. The claimant told police that Abedi was a complete stranger, who had called out of the blue seeking to exchange some Libyan currency, a transaction the claimant declined. The police, having spent several days investigating and questioning the claimant, were satisfied that no further action was appropriate. None of this is in dispute. On 3 June 2017, the claimant was released without charge.

The defendant did not report the claimant's release. The Article remained online unamended until February 2018, when it was taken down following receipt of a letter of claim from the claimant's solicitors. The claims advanced at that time were not conceded and, on 21 December 2018, the claimant brought this action claiming damages for breach of confidence and misuse of private information. His claim includes claims for aggravated damages — to compensate for increased hurt to feelings — and for special damages, to compensate for financial loss.

Misuse of private information is part of the “confidentiality genus”, but breach of confidence and misuse of private information are separate and distinct wrongs. At this trial, however, it has been common ground that it is unnecessary to examine their differences. The case can be decided by reference to the latter tort alone, the contours of which have been shaped by Articles 8 and 10 of the Convention.

This case has come to trial less than six months after the decision of the Court of Appeal in ZXC v Bloomberg LP [2020] EWCA Civ 611 [2020] 3 WLR 838 (“ ZXC CA”). The Court dismissed an appeal from the decision of Nicklin J, [2019] EWHC 970 (QB) [2019] EMLR 20 (“ ZXC1”), that the publication of information which identified the claimant as the subject of a criminal investigation represented a misuse of private information. In ZXC CA at [82] the Court of Appeal held that, in law:

“… those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion.”

ZXC was not the first case in which the Court reached such a conclusion. Mann J had done so earlier in Sir Cliff Richard's claim, Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch) [2019] Ch 169. The issue had been extensively discussed in earlier cases. But ZXC was the first such case to reach an appellate court. ZXC is of course binding on me.

II. THE ISSUES

The main issues that arise for decision are as follows:

(1) Did this claimant have a reasonable expectation of privacy in relation to the information that he had been arrested in connection with the Manchester terrorist attack (“the Information”)? This requires consideration of (among others) these questions:

(a) whether the general rule identified in ZXC CA applies to this claimant, in all the circumstances of this case including, but not limited to

(b) the nature and gravity of the terrorist atrocity of which the claimant was suspected of being involved; and

(c) the existence and extent of other local and national publications on and after 29 May 2017 which contained identifying details about the claimant.

(2) If the answer to (1) is yes, did the rights of the defendant and others to disseminate and receive information on matters of public or general interest outweigh the claimant's expectation of privacy?

(3) If the claimant succeeds on liability:

(a) can he recover damages for injury to his reputation?

(b) should there be an award of aggravated damages?

(d) what sum should he be awarded in general damages? And

(e) what, if any, award of special damages should be made?

Issues (1) and (2) are not necessarily binary questions. The defendant's case is that the answers may depend, at least in part, on how knowledge of the story evolved in the claimant's locality and the media on and after 29 May 2017. Issue 3(a) and 3(c), if they arise, call for consideration of (i) an alleged inconsistency between what was said about damages for reputational harm by Mann J in Richard v BBC and by Nicklin J in ZXC1; (ii) whether the “rule” in Dingle v Associated Newspapers Ltd [1964] AC 371 applies in the tort of misuse of private information generally, and/or on the facts of this case.

There is no connection between the issues in this case and those being looked at by Sir John Saunders in the Manchester Arena Inquiry. At the time of this trial, that Inquiry, established on 22 October 2019, was hearing evidence relating to the Arena Complex and the Security Arrangements. Its terms of reference have no overlap with the issues in this case.

III. THE TRIAL

Thanks to the parties' efficiency, and the efforts made to reduce the scope of the issues, the trial lasted three days rather than the original estimate of five. The facts are substantially uncontroversial. The main areas of factual investigation at trial were the extent to which the Information was public or general knowledge in Shoreham-by-Sea and beyond, other than by virtue of the Article; the defendant's editorial decision-making processes; and issues relating to the claimant's claims for damages.

After opening statements by Counsel for each party, the claimant gave evidence and was cross-examined by Mr White QC, for the defendant. The claimant adduced evidence from five other witnesses. One of these was his solicitor, Tamsin Allen, who gave evidence relating to damages and was cross-examined by Mr White. Four other witnesses gave evidence that was relevant wholly or mainly to damages. They were Nezar El-Harushi, an aircraft engineer; Jacqueline Verrall and Dec Mooney, directors of English Language Homestays Limited (“ELH”), for which the claimant worked in 2017; and Mohamed Elazoumi, an employee of Conduent, another company for which the claimant worked after his work with ELH came to an end. The statements of these witnesses were unchallenged, and were read, rather than adduced live on oath or affirmation. All of this was accomplished within the first day of the trial.

The defendant's evidence was adduced on day two. Four editorial staff of MailOnline, who were involved with the Article, were called as witnesses to describe how they dealt with the story and why. In descending order of seniority, they were Marianna Partasides, (UK News Editor), Amanda Williams (now Executive Editor, but an Associate Editor at the time), Tom Savage (UK Night News Editor), and Mark Duell (Senior News Reporter). All four gave evidence live. Ms Partasides was cross-examined by Mr Tomlinson QC, the others by Ms Mansoori. The defendants also called evidence from Barry Keevins and Jaya Narain, two freelance journalists who were engaged by the defendant on 29 May 2017 to carry out enquiries. Mr Keevins gave evidence in court and Mr Narain by video-link. Both were cross-examined by Mr Tomlinson.

After a break for Counsel to prepare their submissions, I read and heard closing argument on what would have been day five, but ended up as day three of the trial.

IV. THE FACTS

The claimant

The claimant was born...