Al-Fagih v HH Saudi Research and Marketing (UK) Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE SIMON BROWN,LORD JUSTICE MANTELL,LORD JUSTICE LATHAM
Judgment Date05 November 2001
Neutral Citation[2001] EWCA Civ 1634
Docket NumberCase No: A2/2000/3681
CourtCourt of Appeal (Civil Division)
Date05 November 2001
Al-Fagih
Respondent
and
H.H. Saudi Research & Marketing (U.k.) Ltd
Appellant

[2001] EWCA Civ 1634

Before:

Lord Justice Simon Brown

Lord Justice Mantell and

Lord Justice Latham

Case No: A2/2000/3681

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(Mrs Justice Smith)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Miss Adrienne Page QC & Mr Harvey Starte (instructed by Davenport Lyons of London W1S 3NL) for the Respondent

Mr Andrew Caldecott QC & Mr Timothy Atkinson (instructed by Wedlake Bell of London WC2E 9HF) for the Appellant

LORD JUSTICE SIMON BROWN
1

This is the defendant's appeal in a libel action against that part of Smith J's interim order on 28 July 2000 which ruled that the publication complained of, an article in the defendant's newspaper Ash-Sharq Al-Awsat on 7 March 1996, was not protected by qualified privilege. Following that ruling, a further hearing took place before Smith J on the issue of damages, resulting in a final judgment for the claimant on 28 November 2000 for £65,000.

2

The words complained of comprised an allegation made by Dr Mohammed Al-Mas'aari (AM) about the claimant (AF) in the course of a dispute between the two men, both prominent members of a Saudi Arabian dissident political organisation known as the Committee for Defence of Legitimate Rights (the Committee) which is opposed to the existing Saudi Arabian government and seeks by non-violent means to bring about human rights reforms. The defendant's newspaper supports the Saudi Arabian government and is in part owned by the Saudi Arabian royal family. It sells about 1500 copies a day in London mainly to persons from the Saudi Arabian community with a particular interest in Saudi Arabian affairs and personalities. The newspaper reported the unfolding dispute over a period of some two weeks.

3

The particular report complained of stated that AM had told the defendant's journalist, Mr Al-Khamees (AK), that AF had spread malicious rumours about him (AM) and had said that AM's mother had procured women to have sexual intercourse with him at his home. At the liability hearing it was common ground that AM had made that allegation to AK and that it was in fact untrue. Although there was a defence of justification, this was based not upon the truth of that allegation, but rather upon a particular letter allegedly written by AF to AM's elderly father, a founder member of the Committee, which contained serious allegations of sexual impropriety against AM. The appellant contended that this letter showed AF to be a purveyor of malicious and scurrilous gossip so that the words complained of were substantially true and their publication was incapable of doing further harm to AF's reputation. That defence, however, was roundly rejected, the appellant failing to satisfy the judge either that AF was the author of the letter or, even if he was, that it would have sustained the defence of justification. There is no appeal from that part of the judge's order.

4

As to the appellant's claim for qualified privilege, the judge in her subsequent damages judgment summarised her earlier ruling as follows:

"The defendant also claimed qualified privilege, submitting that his readership had a need and right to know what [AM] and the claimant were saying about each other. The defendant had done no more than provide an accurate day-to-day account of the unfolding dispute. It had not taken sides. It had not adopted the allegations and counter-allegations as true but had merely reported what each had said. Its staff had no reason to believe that the words complained of were not true. The defendant had observed the standards of responsible journalism. I rejected that defence as I did not accept that the defendant had observed the standards of responsible journalism. [AK] had made no attempt to verify the truth of [AM's] allegation as he could and should have done. When the series of articles was viewed as a whole, I considered that the defendant had taken sides and had implied that the allegation was true. Although I recognised that there was some public interest in the reporting of this dispute, I held that the potential harm to the claimant from the publication of the unverified allegation outweighed the public interest in publication."

5

The principal argument advanced below was to the effect that where two politicians make allegations against each other relating to their policies and fitness for office, reports of that debate are of such public importance that provided the exchanges are clearly attributed and fairly and accurately reported, and a fair opportunity is given for each to explain or contradict, public interest requires publication and the usual requirement for verification does not apply. The duty on the publisher was contended to be an "intermediate duty", intermediate that is between the full range of duties associated with responsible journalism in a case where the newspaper investigates a story and reports the facts as true, and the minimal duties of fair and accurate reporting of public proceedings in cases falling within schedule 1 to the Defamation Act 1996.

6

Since the ruling below, the appellants has instructed fresh solicitors and counsel and Mr Caldecott QC on its behalf has abandoned the contention of an intermediate duty. He accepts that the claim for qualified privilege falls to be determined in accordance with the approach laid down by the House of Lords in Reynolds v Times Newspapers Limited [2001] 2 AC 127, and submits that on that approach it should be upheld. "Reportage" (a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper), he argues, certainly in the context of a political dispute such as arose here, should more readily attract qualified privilege than publications, as in Reynolds itself, by which the newspaper makes the allegation its own. The essential distinction, he submits, is between on the one hand the press's role as "watchdog" to report on matters of public concern, and on the other its role as "bloodhound" which it pursues by investigative journalism. Mr Caldecott abandons too the appellant's earlier contention that the claim for qualified privilege fell to be judged in the light of its coverage of the whole dispute; rather he contends that the court should focus on the more immediate context in which the publication complained of was set, in particular the articles published on 6, 7 and 8 March 1996.

7

With that relatively brief introduction let me turn now, as inevitably I must, to the more detailed facts of the case which for the most part I gratefully take from the admirably careful and thorough judgment below.

8

Both AF and AM had been in prison in Saudi Arabia on account of their political activity but on release in about 1994 each had come to London. AF became the manager of the Committee's London office; AM its official spokesman. Differences arose between the two men which came to a head in March 1996. AF disapproved of AM's association with another Muslim dissident group and thought he should be replaced as spokesman. He postponed action on this, however, because AM was preoccupied with his asylum application. This had not been granted. Instead the Home Secretary had ordered his removal to the Dominican Republic. AM's appeal against that decision was determined on 5 March 1996. The Immigration Appeal Tribunal invited the Secretary of State to reconsider his decision and in the result AM was permitted to remain here.

9

On 5 March, as AM came out of court, he distributed a press release in which he announced the expulsion of AF from the Committee. This release was also sent by fax to those on the Committee's mailing list. The newspaper received a copy. AK recognised its potential interest and obtained the editor's permission to cover the story.

10

AM's press release accused AF of having "an unlimited desire for control and domination" in the Committee's affairs and of being unwilling to consult with his colleagues. It alleged that recently AF had changed the locks on the office and had barred AM and two others (who also signed the press release) from the Committee's premises. He had also stopped the payments to the law firm handling AM's asylum appeal. There then followed six specific allegations against AF. The first and second alleged infidelity to the Committee; it was suggested that AF was in effect a closet supporter of the Saudi regime. The third alleged that by his carelessness in security matters he had exposed activists to danger in Saudi Arabia, leading to a number of arrests. Fourth, he had insisted on employing certain people in London despite their "suspicious links" with the British and other security services. Sixth, it was said that he had withheld money needed by colleagues working for the Committee in London as "an arm twisting tactic". The fifth allegation was of a wholly different nature. It said: "He (AF) defamed the honour of his brethren who are members of the Committee and of their families and spread malicious rumours about them in his private conversations. He went on to defame the honour of entire provinces: the women of Hijaz and the women of Ramah are such and such, may God preserve us". Finally it was said that the decision to dismiss AF from the Committee had been taken after long deliberation by the Council within Saudi Arabia.

11

During the afternoon of 5 March AK telephoned AM to confirm the contents of the release and if possible to obtain more information. Because AM was very busy they spoke only for a few minutes. It appears, however, that AM told AK that he had...

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2 books & journal articles
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