Dr Ashti Hawrami v Journalism Development Network, Inc.

Hearing dates: 17–18 June 2024

Approved Judgment

This judgment was handed down remotely at 14:00 on 23 August 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HON. Mrs Justice Steyn DBE

A. Introduction

This is a libel claim brought in respect of an article which has been published online (subject to two amendments) since 22 May 2021, under the heading “ The Rise and Fall of a U.S. Oilman in Iraq” (‘the Article’). Appendix A to this judgment sets out the original text of the Article, as published on 22 May 2021 (‘Version 1’). Appendix B contains the additional text added to the end of Version 1 and published on 30 August 2022 (‘Version 2’), while Appendix C contains a further sentence added to Version 2 and published on 12 September 2022 (‘Version 3’). Save where it is necessary to distinguish between the three versions, I shall refer to ‘the Article’.

In accordance with an order of Master Dagnall dated 8 April 2024, this has been the trial of the question whether parts of the Article (as pleaded by the defendants) are protected by qualified privilege pursuant to s.15 of the Defamation Act 1996 (‘the 1996 Act’), and of the issue of meaning.

The claimant, Dr Ashti Hawrami, has had a lengthy career in engineering and production in the oil and gas industry, having been awarded a doctorate in Oil and Gas Reservoir Engineering by the University of Strathclyde in 1978. He served as the Minister of Natural Resources in the newly formed Kurdistan Regional Government of Iraq (‘the KRG’) from May 2006 until July 2019, and then as the Assistant Prime Minister for Energy Affairs in the KRG from July 2019 until early 2022.

The first defendant, Journalism Development Network, Inc, is incorporated in the state of Maryland, USA. It publishes as “ The Organised Crime and Corruption Reporting Project” (‘the OCCRP’). It operates a website at https://www.occrp.org which is freely accessible to the public and has a substantial readership in England and Wales (‘the Website’). The Article was, and continues to be, published on the Website. The OCCRP describes its mission, on the Website, as being “ to expose crime and corruption so the public can hold power to account”. The second and third defendants are journalists based in London.

B. The procedural history

The claim was issued on 19 May 2022. It was served on the defendants, together with Particulars of Claim dated 13 September 2022, within the four-month time limit. A Defence was filed, pursuant to agreed extensions of time, on 5 December 2022, and an Amended Defence was filed on 18 April 2023. The defendants deny the Article bears (or bore) any meaning defamatory of the claimant at common law, and pleaded defences of statutory reporting privilege under s.15 of the 1996 Act and publication on a matter of public interest under s.4 of the Defamation Act 2013 (‘the 2013 Act’).

The s.15 defence is based on the judgment given by Christopher Clarke LJ on 13 December 2013, following a lengthy trial in the Commercial Court, in Excalibur Ventures LLC v Texas Keystone Inc and others [2013] EWHC 2767 (Comm) (‘the Excalibur judgment’), and transcripts of the Excalibur proceedings.

On 13 February 2023, the claimant applied for summary judgment seeking dismissal of the s.15 defence. In short, the claimant contended that the s.15 defence had no real prospect of success because the Excalibur judgment and proceedings contain nothing capable of being defamatory or in any way discreditable to the claimant, but, on the contrary, the judgment records statements to the claimant's credit. So, if the Article is defamatory of him (as the claimant contends), it cannot be a fair and accurate report of the Excalibur judgment or proceedings. Whereas, if it is not defamatory of him, the s.15 defence is otiose.

Master Dagnall heard the summary judgment application on 2 June and 11 December 2023. He gave judgment on 22 February 2024 ( Hawrami v JDNI [2024] EWHC 389 (KB)), dismissing the application save in respect of two passages of the Article (§5, second bullet point and §37) which he ruled were not protected by qualified privilege. In respect of those passages, he observed at [106]:

“I do not see how they can possibly be said to be a ‘fair and accurate report’ of the Judgment when the essential underlying statement i.e. that there was a legal requirement on the claimant to cancel the Shaikan PSC, did not appear in the Excalibur Material and, further, the Article did not say what the Judgment did state that the claimant had done in the circumstances for the benefit of KRG i.e. ensure that the benefits under the [Representation Agreement] actually went to KRG (and not to Dabin or GKP/GKI) being somewhat equivalent of a forfeiture of them.”

Master Dagnall's order dated 8 April 2024 records that the claimant confirmed, through his Counsel, that it is no part of his case that the defendants, or any of them, published the Article with malice; and the parties confirmed, through their respective Counsel, that they did not propose to adduce witness evidence on the issue of whether the Article was of public interest and/or whether its publication was for the public benefit for the purposes of s.15(3) of the 1996 Act. In those circumstances, Master Dagnall made the following order:

“6. There shall be a trial of the following preliminary issues (‘the Preliminary Issues Trial’):

a. The natural and ordinary meaning of the Article;

b. Whether the Article, in the meaning found at subparagraph (a) above is defamatory of the Claimant at common law; and

c. Whether the paragraphs of the Article pleaded in the Defendant's second schedule served pursuant to paragraph 3 of the Order of 2 June 2023, with the exception of the statements at paragraph 2 above, are protected by s.15 of the Defamation Act 1996.

7. The order and manner in which the issues at paragraphs 6(a)-(c) above are determined at the Preliminary Issues Trial shall be reserved to the Judge hearing the Preliminary Issues Trial upon consideration of the parties' submissions.”

The paragraphs (or parts of paragraphs) of the Article pleaded in the defendants second schedule (as identified in paragraph 6(c) of Master Dagnall's Order) are shown as shaded in Appendix A, with the exception of the two passages in respect of which the summary judgment application succeeded. There is no issue as to whether any part of the Article is a statement of opinion as it is common ground that it contains statements of fact.

C. The order in which the issues should be determined

The claimant submits that, applying Curistan v Times Newspapers Ltd [2008] EWCA Civ 432, [2009] QB 231, the court first needs to answer the question whether and to what extent the Article attracts qualified privilege. Secondly, having done so, the court can then determine the meaning(s) of the Article (in each version), either applying the modified approach to meaning identified in Curistan (if any part of the Article is protected by qualified privilege) or applying the ordinary approach (if the qualified privilege defence has been rejected). Thirdly, the court should then determine whether the Article is defamatory of the claimant at common law, in the meaning(s) found.

The defendants contend that, in circumstances where they have put in issue whether the Article bears any meaning defamatory of the claimant, the court should first determine the natural and ordinary meaning of the Article and whether it is defamatory of the claimant at common law, without reference to any issues arising from their reliance on statutory qualified privilege. Only if that exercise leads to the conclusion that the Article is defamatory at common law should the court then address the issue of whether and to what extent the Article is protected by qualified privilege. If it is, the defendants contend the court should then determine the meaning afresh applying Curistan and decide whether that meaning is defamatory of the claimant at common law.

Curistan concerned an article published in The Sunday Times. Gray J held that certain passages attracted qualified privilege under s.15 of the 1996 Act, as a report of statements made by Peter Robinson MP in Parliament; and the publication bore a Chase level one meaning. The Court of Appeal dismissed the claimant's appeal against the former ruling, finding that the passages in question were protected by privilege. The Court allowed the defendant's cross-appeal, holding that the publication bore a Chase level two (rather than Chase level one) meaning. In reaching those conclusions, the Court of Appeal addressed the approach to the determination of meaning of a publication comprised of privileged and non-privileged material (‘a hybrid publication’).

The initial stage of the defendants' proposed approach requires the court to determine the natural and ordinary meaning of the whole Article, applying the repetition rule (pursuant to which reports of allegations made by a third party will generally bear the same meaning as the underlying allegations themselves) to the whole Article. Not only does this approach potentially lead to the court determining meaning twice, in my judgment, it is inconsistent with Curistan.

As Nicklin J observed in ...