HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco v Elaph Publishing Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lady Justice King,Lord Justice Patten |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] EWCA Civ 29 |
| Docket Number | Case No: A2/2015/2708, 2795 and 2721 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2017 |
[2017] EWCA Civ 29
Lord Justice Patten
Lady Justice King
and
Lord Justice Simon
Case No: A2/2015/2708, 2795 and 2721
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Hon Mr Justice Dingemans
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Rushbrooke QC and Richard Munden (instructed by Lee & Thompson) for the Appellant on the first appeal and Respondent on the second appeal
Heather Rogers QC and David Glen (instructed by Payne Hicks Beach) for the Respondent on the first appeal and the Appellant on the second appeal
Hearing date: 30 November 2016
Approved Judgment
Introduction
This appeal concerns a claim brought by Prince Moulay Hicham Ben Abdallah Al Alaoui of Morroco ('the Prince') against Elaph Publishing Limited ('Elaph'), a company incorporated in England and Wales, in respect of an article published in Arabic on Elaph's news website on 8 and 9 October 2014.
On 9 October the article was removed from the website following a complaint by solicitors acting for the Prince, and on the following day proceedings were begun. The Particulars of Claim, served on 8 December, annexed a certified translation of the article.
On 30 January 2015, Elaph applied under CPR Part 53 PD 4.1 for an order from the Court, (1) that the words relied on were not capable of bearing, (a) the meanings pleaded in §§6.1 to 6.3 of the Particulars of Claim, or (b) any other meaning which was defamatory of the Prince; and (2) that the claim be struck out and summary judgment entered in favour of Elaph.
The relevant parts of the article are set out below, with the paragraph numbers added by Dingemans J ('the Judge') in his first judgment. The article was headed with a photograph of the Prince.
Using former boxer Zakaria Moumni in a premeditated plot:
Moulay Hicham schemes to entrap Mounir Al-Majidi
[1] Moulay Hicham does not pass up any chance to sabotage the image of Moroccan King Mohammed VI, and the latest ploy utilised former boxer Zakaria Momeni to bring down Mounir Majidi, assistant and adviser to the King.
[2] Beirut: Everything that harms Morocco always involves Moulay Hicham. This argument has become increasingly prevalent in the corridors of the royal family palace in light of the machinations that the cousin of King Mohammed VI never ceases to weave, the most recent of which, recently involved a take-down of Mounir Majidi, an aid very close to the Moroccan monarch's heart.
Premeditated plots
[3] Reports emerged stating that Moulay Hicham met with former Moroccan boxer Zakaria Moumni on 26th June this year in the Fouquet Hotel in Paris in order to urge him to raise a case against Majidi in French courts on charges of making death threats. Hicham requested that Moumni keep the case a secret, so that Majidi could be forcibly held when he came to France.
[4] Hicham launched a similar strike last February on Abdellatif Hamouchi, head of Morocco's anti-espionage agency, who was called by the French judiciary for investigation while staying at the home of the Moroccan ambassador in Paris. This issue had a negative impact on French-Moroccan relations.
[5] Moumni insists that the alleged meeting happened only by coincidence — but this was the response that Hicham whispered into his ears. The latter is working very hard not to answer the fundamental question: what is the difference between a chance meeting that he claims took place and the meeting that lasted half an hour? Moumni admits, however, and without equivocation, that he met Moulay Hicham and his wife in the Fouquet hotel because he, himself, frequents the hotel and happened to see the Alaouite Prince, himself, visit that day.
Coincidence or conspiracy!
[6] Few believe the story of the accidental meeting, especially since Hicham visited the George V Four Seasons Hotel, owned by a relative of Saudi Prince Alwaleed bin Talal, when he was in Paris. The Fouquet Hotel, where the meeting took place, is situated on the same street.
[7] News reports list some of the finer details of this meeting, claiming that the Moroccan Prince spoke frequently while Moumni spent half an hour listening attentively. Hicham incited the former boxer to say, at every occasion and wherever he went, that Mounir Majidi, Secretary to the Moroccan King, threatened to kill him in France. He also urged him to submit a judicial complaint against Majidi, informing him of people that would help him do so and asking him to contact them.
[8] Moumni himself is the world champion of a type of Thai boxing called 'light contact.' He currently benefits from a decree issued by late Moroccan King Hassan II which appointed him Sports Advisor of Morocco, despite the fact that the sport that he practices is not included on the list of sports recognised by the Olympics. In 2006 Moumni received authorisation to operate two large fare-operated vehicles and take all the revenues. One would be placed under his name and the other under his father's name. Thus, the man set fire to the Kingdom's highest-ranking centres whose revenues he benefits from, just like a man who drinks from a well and then throws a stone inside it …
Paragraph 6 of the Particulars of Claim pleaded that the natural and ordinary meaning of these words was:
(1) that the Claimant had orchestrated a plot to sabotage the image of King Mohammed VI of Morocco whereby, in the course of a pre-arranged meeting at the Fouquet Hotel in Paris on 26 June 2014, he had induced [ ] Moumni: (a) to make false allegations against the King's close aide [ ] Majidi that he, Majidi, had threatened to kill Moumni, and (b) to bring a criminal complaint against Majidi on the basis of such false allegations so that Majidi would be arrested in France;
(2) that the Claimant had instructed Moumni to lie to cover up the plot by claiming, falsely, that his meeting with the Claimant at the Fouquet Hotel had been coincidental;
(3) that the Claimant had orchestrated a similar plot against [ ] Hamouchi, the head of Morocco's anti-espionage agency, in the February before this, which had resulted in Hamouchi's being called in for questioning by the French judicial authorities, and the Claimant was therefore responsible for the resultant negative impact on French-Moroccan relations.
The Judge's first judgment
In a judgment dated 24 April 2015, the Judge noted that there had been an alternative application for a preliminary determination of the meaning of the words complained of. This application had not been pursued because it raised issues about whether the statement had 'caused or is likely to cause serious harm' to the reputation of the Prince, within the meaning of s.1 of the Defamation Act 2013, and because it was common ground that there was relevant evidence about the extent of the publication on the internet.
The Judge directed himself that a decision on an application as to whether words were capable of bearing a defamatory meaning was to pre-empt perversity, and recorded the arguments as to meaning advanced on behalf of each side.
He set out the principles that applied when determining meaning; and it will be necessary to return to these later in this judgment. For present purposes it is sufficient to note a passage in the judgment in [14]:
It follows that it is not enough that the words should damage the claimant in the eyes of a section of the public only, see Modi v Clarke [2011] EWCA Civ 937. It does not defame someone to say that he wishes to destroy the structure of world cricket, because that depends on the views of that section of the public interested in the sport on the current structure, see paragraph 30. This mirrors Strasbourg jurisprudence which emphasises the latitude given to statements about public figures and political matters where reasonable persons may have very different views about actions and systems of government, see Lingens v Austria (1986) 8 EHRR 407 at paragraph 41 and the analysis in Curran v Scottish Daily Record and Sunday Mail Ltd (2011) CSIH 86 at paragraphs 51 and 53.
The Judge referred to the evidence which had been lodged on each side, and found that it did not assist him. He proceeded on the basis that the hypothetical intelligent reader would have the general knowledge that Morocco was a monarchy and that the King was its ruler. However, in his view the application had to be determined solely on the basis of the article and its translation.
The Judge decided that the words complained of did not sustain a meaning that the Prince had induced Moumni or anyone else to make 'false' allegations against Majidi so that he might be arrested. The use of the words 'premeditated plot' or 'ploy' showed only that it was planned and not that it was fabricated. The mere fact that matters are kept secret does not suggest that they are false.
So far as §6.1 and §6.3 of the Particulars of Claim were concerned, the Judge concluded, at [22], that the article could be understood to mean that the Prince urged Moumni to raise a case against an aide close to the King of Morocco on charges of making a death threat, and had launched a similar strike against Hamouchi, the head of the anti-espionage agency; and that this was part of a campaign to harm the image of the King. The article appeared to take the line that any such approach was wrong. However, that would depend on the views of that section of the public interested in the politics of Morocco. It was not capable of being defamatory of someone to say that they were working against the interests of a ruler for the reasons given in Modi v....
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