Issam Salah Hourani v Alistair Thomson and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 06 February 2017 |
| Neutral Citation | [2017] EWHC 173 (QB) |
| Docket Number | Claim No: HQ14D05164 |
| Court | Queen's Bench Division |
| Date | 06 February 2017 |
[2017] EWHC 173 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Claim No: HQ14D05164
Heather Rogers QC and Jonathan Price (instructed by Payne Hicks Beach) for the Claimant
Anthony Hudson QC and Ben Silverstone (instructed by Mishcon de Reya) for the Defendants
Hearing dates: 1 – 3 February 2017
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.
Introduction
This judgment is given after the hearing of applications for inspection of documents and the provision of further information, as preliminary issues in the trial of this action for libel and harassment.
The claimant ("Mr Hourani") was born in Lebanon but is a British citizen who now lives in London. In this action he sues five defendants. All are resident or, in the case of the fourth defendant incorporated, in the United States. Mr Hourani sues the first four defendants for libel, and all five defendants for harassment, in respect of their roles or alleged roles in a campaign involving street demonstrations, online publications, and the distribution of stickers.
There is much that is unusual about the case. This will be clear from the summary set out in paragraph [1] of the most recent judgment in the case, that of Nicola Davies J at the Pre-Trial Review, [2017] EWHC 56 (QB) ("the PTR Judgment"):
"On 19 June 2014 a demonstration took place outside the claimant's then London home (the "June Event"). The protesters, who were not genuine protesters, were paid to attend and instructed as to what to do and say. They held placards/banners provided to them, amongst which were one or more photographs of the claimant with the caption "Murderer". Some footage and reports of the June Event were published on various websites and social media sites that were established on or about this time (the "online publications"). The statements published at the June Event and in the online publications which are complained of are set out in the Amended Particulars of Claim. The pleaded defamatory meanings alleged by the claimant being that the claimant was guilty of or complicit in the murder of Anastasiya Novikova in June 2004 and other grave crimes against her. On 16 November 2014 another similar event was staged in Hyde Park (the "November Event") resulting in the publication of further and similar statements in the online publications."
The third and fourth defendants deny involvement in the campaign, but the first defendant ("Mr Thomson") admits involvement in the June Event; the second defendant ("Mr McCarthy") admits involvement in both the June and November Events; and the fifth defendant ("Dr Waller") admits to having organised and paid for both Events, most of the online publication complained of, and the sticker campaign.
Dr Waller was not acting of his own initiative. Nor was he using his own funds. It is undisputed that he was retained, and the campaign was paid for, by a client with very considerable resources. The initial budget proposed by Dr Waller was some US$827,000. Dr Waller does not dispute that he had a client. The claimant suggests that there was more than one: there was the person with whom Dr Waller dealt ("the Immediate Client") and behind that, another, or others ("the Ultimate Client(s)"). This is disputed. For convenience I shall refer to the Immediate Client and Ultimate Client(s) as "the Client(s)" plural, except where it is necessary to distinguish between them.
Mr Hourani wishes to know the identities of the Client(s). He maintains that the campaign stems from a political falling out in 2007 between his brother-in-law, the late Rakhat Aliyev, and President Nazarbayev of Kazakhstan. On 12 December 2016, Mr Hourani issued an application ("the Claimant's December Application") seeking orders for the inspection of documents and the provision of information pursuant to a Request dated 24 November 2016. The inspection application sought access to (a) the entirety of certain documents that had been disclosed by Dr Waller in redacted form and (b) the production of any such document that was in electronic format in its "original native electronic format". That format would include the metadata. The Requests for Information sought the identity of those behind the campaign and details about Mr Waller's dealings with them. The most significant Requests are nos. 1 & 3:
"1. Identify each and every person who conceived of, procured and/or organised the campaign, who determined its purposes, who determined its activities, and/or who determined upon the course of conduct complained of in this action (including the Online Publications, the Events and the Stickers)"
…
3. State the identity of your "client" in relation to your participation in the campaign, that is, the person
(a) you referred to as the "client" in emails … dated [on various dates in June and July 2014]; and
(b) you met to discuss the campaign on 23 or 24 June 2014 … and on 3 July 2014…"
The breadth of request 1 means that if the court were to grant the orders sought, and if they were complied with, the information supplied would identify the Immediate Client and, if there were any, the Ultimate Client(s). For the purposes of evaluating some of the issues on this application I have formed some views about the likelihood that any Ultimate Client(s) exist(s), as will appear. But there is no need, at least for present purposes, to reach a final conclusion. My use of the plural when referring to the Client(s) should not be taken as any indication that I have reached a final view.
At the PTR on 12–13 January 2017 there was prolonged argument on the Claimant's December Application. The defendants argued that the application was unreasonably late, and designed to derail the trial. Nicola Davies J rejected those contentions. Dr Waller further submitted that the order sought would represent an unjustified interference with the rights to source protection under s 10 of the Contempt of Court Act 1981 and under Article 10 of the Convention. I shall call these the "Source Protection Rights." Nicola Davies J concluded and ordered that the Claimant's December application should be "adjourned to the trial Judge, to be heard as a preliminary issue at the trial, which is listed to start on 30 January 2017". She gave directions varying the trial timetable so as to provide for a reading day, then a day of opening statements, followed by evidence from Dr Waller over 1 or 2 days, with all subsequent directions being reserved to the trial judge.
The Judge's reasons were set out at [55] of the PTR Judgment:
"The protections afforded by section 10 of the 1981 Act and Article 10 ECHR are important. A balancing exercise is required to be carried out by the Court. This will require the Court to determine, inter alia, whether the fifth defendant was involved in what he genuinely believed was a legitimate campaign, whether he was acting as a journalist, what was the status of the documents upon which he relied, was it reasonable for him to pursue this course of conduct. Given the apparent issue of the credibility of the fifth defendant which is directly relevant to his alleged relationship with the client, and flowing from that the legitimacy of the campaign, I have come to the conclusion that the claimant's application for disclosure of the identity of the fifth defendant's client should be heard by the trial judge who will have the advantage, which I have not had, of seeing and hearing evidence from the fifth defendant. Determination of these issues requires the Court to be in as good a position as it reasonably can be to perform the balancing exercise. The oral evidence of the fifth defendant is necessary to assist the Court in this task."
The Claimant's Disclosure Application therefore came before me for hearing on the first day of the trial. Counsel opened their clients' cases, and Dr Waller gave evidence and was cross-examined. Mr Anthony Hudson QC, for the defendants, then invited me to adjourn the application further. He submitted that I could not properly decide it against his client at this stage. That seems to me to amount in substance to an attempt to appeal against the order of Nicola Davies J, or to seek a variation when there has been no material change of circumstances. She directed a preliminary issue. Nor do I accept Mr Hudson's reasoning, which is that the claimant's argument depends on proof of facts that I could only find proved after a trial. I have therefore proceeded to determine the application, in line with the directions given at the PTR.
Issues on the application
Ms Rogers puts her argument on three distinct, though related, bases. The first is that the identities of the Client(s) are relevant to, and necessary for the fair determination of, the existing issues between the claimant and the defendants. The second is that identification of the Client(s) would or might enable the claimant to obtain additional evidence relevant to those issues by way of an application against the Client(s) for third party disclosure. The third is that identification of the Client(s) is required to enable the claimant to assert and enforce his legal rights against the Client(s), or to enable him to consider whether to do so. It will be convenient to consider each of these bases of claim in turn.
In relation to each of these three bases of claim, the issues for decision at this stage can be conveniently summarised in this way: (1) Are the threshold...
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