Al Amoudi v Brisard and another
|England & Wales
|THE HON. MR JUSTICE GRAY,Mr Justice Gray
|12 May 2006
| EWHC 1062 (QB)
|Case No: HQ04X03998
|Queen's Bench Division
|12 May 2006
 EWHC 1062 (QB)
The Hon. Mr Justice Gray
Case No: HQ04X03998
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Desmond Browne QC and Jonathan Barnes (instructed by Nabarro Nathanson) for the Claimant
Adam Speker (instructed by Reynolds Porter Chamberlain) for the Defendants
Hearing dates: 5 May 2006
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
Mr Justice Gray:
This application raises the question whether and, if so, in what circumstances it is open to a claimant complaining of an item on an Internet website open to general access to rely on a presumption that substantial publication of that item has taken place within the jurisdiction of the court. The Claimant, Mr Mohammed Hussein Al Amoudi, contends that there is such a presumption, albeit a rebuttable one. The Defendants, M. Jean Charles Brisard and JCB Consulting International SARL, maintain that no such presumption exists, rebuttable or otherwise. Their case is that the Claimant must prove publication in the ordinary way.
In the event that the Claimant is successful on that question, I am asked to strike out or in the alternative to give summary judgment in favour of the Claimant in relation to those parts of the Defence which deny that there was publication on the website within the jurisdiction.
The background facts
I can take the background facts against which those questions fall to be resolved quite shortly.
The Claimant is described as a prominent and respected international businessman who is well known in the major financial centres of the world, including London. He was born in Ethiopia but has made his home in Saudi Arabia. He is said to spend a total of approximately two to two-and-a-half months a year in England for business and personal reasons. He has a home in London.
The first Defendant, M. Brisard, who is a French national resident in Switzerland, asserts that he is an author and international expert and investigator on terrorism financing. The second Defendant was a limited liability Swiss company of which M. Brisard is the managing partner, the majority shareholder and one of the two authorised signatories. The company is said by M. Brisard no longer to be in existence.
The claim is in respect of two publications. The first is entitled " OSAMA BIN LADEN ECONOMIC ENVIRONMENT JULY 2001 FINAL REPORT Jean Charles Brisard". That "Final Report" was described on the Defendants' website as "…a 'First International Report on the Al Qaeda financial network for the intelligence community' published by the French National Assemby (Money Laundering Committee), October 2001". The Claimant's case is that the extracts from that publication which are the subject of his complaint bore the following meanings defamatory of the Claimant:
i) that he is or, alternatively, there are strong grounds to conclude that he is, a knowing participant in the economic, financial and/or terrorist networks of the terrorist Osama Bin Laden and/or is likely to have knowingly facilitated ties with the said network; and/or
ii) that, being himself a part of the vast financing system that is the trademark of Osama Bin Laden's terrorist operations, he has knowingly financed and/or facilitated the financing of Osama Bin Laden's terrorism.
The second publication described itself in the following terms: "TERRORISM FINANCING – routes and trends of Saudi terrorism financing – report prepared for the President of the Security Council United Nations Dec 19, 2002 – New York, USA, Jean Charles Brisard – JCB Consulting". Within the body of the document the Claimant is listed as one of the "Main individual Saudi sponsors of Al Qaeda". I do not need to set out the defamatory meaning which the Claimant says this publication bears.
I should record without comment that the Claimant challenges the Defendants' description of the two publications and in particular disputes the claim that the second publication was prepared for anyone at the United Nations.
A Defence has been served on behalf of both Defendants. It contains no substantive defence. What is for present purposes relevant is that the Defendants join issue with the Claimant on his claim that there was any publication within the jurisdiction of this court of either of the reports sued on.
The pleadings in relation to the issue of publication
In relation to the issue of publication, a convenient starting point is to set out the way the Claimant puts his case in the Particulars of Claim:
"3. Until at least May 2004 the Defendants owned and maintained a website at http://jcbconsulting. com that was at all material times open to general access by any user of the Internet.
Until the date identified in paragraph 3 above the Defendants published or caused to be published on the Internet at http://www.jcbconsulting. com to a substantial but unquantifiable number of readers in this jurisdiction [the words complained of]."
The same formulation is to be found in paragraph 9 of the Amended Particulars of Claim dealing with the second publication complained of.
The reason why there is no complaint of publication prior to 9 December 2003 is that any claim in respect of earlier publication would have been statute—barred: the claim form was issued 9 December 2003 and the limitation period in defamation is one year. The Defendants claim that the website was disabled on 12 February 2004 and that it became totally inaccessible from 28 March 2004. These claims are hotly contested by the Claimant.
Pursuant to an Order of Master Eyre dated 28 July 2005, the Claimant amended the Particulars of Claim to particularise his case for saying that publication within the jurisdiction took place. The added particulars assert that the purpose of the Defendants' website was to promote publicly and to the world at large the business of both Defendants including in the UK and recite various admissions said to have been made by or on behalf of the Defendants in regard to the accessibility of their website and the number of hits made on it. In addition the Claimant relies on a number of occasions when various individuals both within and outside the jurisdiction downloaded the words complained of.
The Defence contains a useful preliminary summary of the Defendants' case, which, so far as material, states that it is the Defendants' case:
2.3 That in the relevant period the reports containing the words complained of were not downloaded within this jurisdiction;
2.4 Alternatively, if and insofar as the Claimant can prove that the reports were downloaded within this jurisdiction within the relevant period, they were downloaded by lawyers acting for the Claimant or for others named in the reports or by persons or friends or business associates of the Claimant and hence reliance upon such publications amounts to an abuse of process as defined by the Court of Appeal in ;
2.5 That, save as identified in 2.4 above, the Claimant has failed to plead publication to third parties who downloaded the words complained of in the relevant period;
2.6 That a jury properly directed could not reasonably infer from the matters pleaded at 4A and 9A that the words were published to a 'significant but unquantifiable number of readers in the jurisdiction';
2.8 That any proved publication (which is denied) would result in no more than nominal damages (the Claimant having chosen not to plead facts and matters to support his claim in damages despite being invited to do so at the hearing before Master Eyre and before service of the Amended Particulars of Claim); and
2.9 That, in the light of the above, the cost of pursuing this action will be wholly disproportionate to the outcome".
In answer to the Claimant's contention that the website was at all times open to general access by any user of the Internet, it is pleaded in paragraph 5 of the Defence:
"5.1 It is admitted that the Defendants were responsible for the owning and maintaining of the website at the address incorrectly set out. The correct address was http://www.jcbconsulting. com.
5.2 It is not admitted that the website was open to general access by any user of the Internet since it is not within the Defendants' knowledge that that was the case but it is admitted that no restrictions were placed upon access by the Defendants…"
Later on in the Defence the Defendants plead to the detailed particulars contained in paragraphs 4A and 9A of the Amended Particulars of Claim. There is no need for me to recite these parts of the Defence.
The progress of the action
The action has made slow progress, in part because the Defendants, when acting in person, made an application to stay the proceedings on the ground of forum non conveniens and, after they instructed solicitors, on the ground that the action is an abuse of the process. No order was made on those applications when the case came before Master Eyre in July 2005. At that time it was not suggested on behalf of the Claimant that there was any presumption that publication had taken place within the jurisdiction.
Thereafter on 21 December 2005 M. Brisard served his List of Documents. In it he claims that documents relating to persons accessing the website www.jcbconsulting. com are no longer in his control. He explains that the webmaster no longer works for the Second Defendant and reasonable enquiries have been made of him for documents. He adds that the Second Defendant moved offices in...
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