Issam Salah Hourani v Alistair Thomson and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies |
| Judgment Date | 20 January 2017 |
| Neutral Citation | [2017] EWHC 56 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLJ/16/0522 |
| Date | 20 January 2017 |
[2017] EWHC 56 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Nicola Davies DBE
Case No: TLJ/16/0522
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: 12–13 January 2017
Judgment Approved
The claimant claims damages and injunctive relief for libel against the first, second, third and fourth defendants and for harassment against all defendants. 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 claimant alleges that the events and the online publications were defamatory of him and constituted and/or were part of a campaign amounting to harassment for which the defendants are responsible. The first and second defendants admit to having been involved in organising the June Event, the second defendant admits to having been involved in organising the November Event. The third and fourth defendants deny any involvement in the Events. The fifth defendant admits to having organised the June and November Events. The first to fourth defendants deny any responsibility for the online publications. The fifth defendant admits responsibility for all but one of the online publications (RakhatAliyev. com). In their defences, in respect of the allegation of libel, the first to fourth defendants put the claimant to proof of publication within the jurisdiction and to proof of serious harm. The defendants do not admit the defamatory meanings pleaded. The first and second defendants advance a defence pursuant to section 4 of the Defamation Act 2013 (publication on matters of public interest) to some but not all of the publications. As to the allegations of harassment pursuant to section 1 of the Protection from Harassment Act 1997 ("the 1997 Act") the defendants deny a course of conduct, that they knew or ought to have known that their conduct amounted to harassment, that the conduct complained of was targeted at the claimant, that the conduct was likely or intended to cause alarm and/or distress to the claimant, that the conduct was oppressive or unacceptable. The defendants assert that their pursuit of the course of conduct was reasonable and/or was for the purpose of preventing or detecting crime.
The history of these proceedings is protracted. In December 2014 a Claim Form was issued against Persons Unknown. Following an Order by Dingemans J the first to fourth defendants were identified. In April 2015 the claimant served a Claim Form and Particulars of Claim upon those defendants. By 31 March 2016 the involvement of the fifth defendant was known and a letter was sent to him by the claimant's solicitors. On 9 June 2016 Amended Particulars of Claim adding the fifth defendant were served in draft. On 23 June 2016 consent was given by the solicitors acting on behalf of all defendants to the addition of the fifth defendant and a timetable proposed for the filing and service of an Amended Defence. On 11 August 2016 Amended Particulars of Claim were served adding the fifth defendant. The agreed timetable set out in a consent order provided for the Amended Defence to be served by 29 July 2016. A delay occurred, for which the defendants are responsible, the Amended Defence was not served until 23 September 2016. On 10 November 2016 the Re-Amended Defence was served. On 24 November 2016 an Amended Reply was served. On 2 November 2016 the claimant issued an application for specific disclosure. Following late and without notice disclosure of redacted documents by the fifth defendant on 1 December 2016, the claimant on 12 December 2016 issued an application seeking the following relief:
i) The fifth defendant shall by 4pm on [blank] provide to the claimant by way of inspection copies of the following documents:
a) The documents disclosed by the fifth defendant in "List A" attached to his Supplemental Disclosure Statement dated 9 December 2016 … in their original unredacted form; and
b) Where any such document was in electronic format, the fifth defendant shall produce a copy of that document in its original native electronic format and with all metadata preserved.
ii) The defendant shall by 4pm on [blank] provide the further information as requested by the claimant in the Request dated 24 November 2016.
The information contained in the Request is the naming of the fifth defendant's client in respect of his participation in the campaign. Other requests for information are made but the disclosure of the identity of the fifth defendant's client is the primary request and is the issue for determination in the application now before the Court.
It is undisputed that the campaign has been paid for by an unidentified client with considerable resources to fund it. It is the claimant's belief that the campaign for which the defendants, in particular the fifth defendant, are responsible is part of a campaign launched against the claimant and his family by or through the Government of Kazakhstan. The claimant attributes the commencement and pursuit of that campaign to a political falling out in 2007 between the claimant's brother-in-law, the late Rakhat Aliyev, and President Nazarbayev of Kazakhstan. Mr Aliyev had opposed the President politically, in particular, over his becoming President for life.
The fifth defendant is a citizen of the United States and lives in Washington DC. He describes himself as a scholar-practitioner specialising in strategic communication and unconventional conflict. He is the Managing Director of a consultancy firm called Oceanic Advisers. He states that he specialises in high-impact, low-cost solutions to business, security, military and intelligence organisations, adopting innovative methods in the use of information, persuasion and psychological strategy as instruments of national security, military and trade policy. He has a background both in business and academia.
In a 99-page witness statement dated 8 December 2016 the fifth defendant states that in January 2014 he was asked by "the client" to work on an online campaign, the primary focus of which was stated to be Rakhat Aliyev. He was told by the client that the purpose of the campaign was to apply pressure on Mr Aliyev to surrender to the authorities for a range of crimes but specifically: (a) the murder of two executives of a Kazakhstan bank; and (b) various economic crimes against the state of Kazakhstan. He was told that the campaign should be conducted online through a variety of websites and social media platforms, combined with protests and other forms of street theatre to draw attention to Mr Aliyev and his crimes, and to draw attention to his inner circle of associates who facilitated the criminal activity. The client wanted the fifth defendant to design the campaign, run it as an ostensibly independent effort by setting up and operating websites and social media networks, organising protests and street theatre for the purposes of online distribution and operating the overall campaign on a day-to-day basis while keeping the client anonymous. In the course of his instructions the fifth defendant reviewed a large number of documents, the "vast majority" of which were provided to him by the client. Initially he was shown copies but by May 2014 as planning of the project moved forward the client provided the fifth defendant with hard or electronic copies which he was able to keep. Documents were either primary sourced documents or compilations or analyses which the fifth defendant attempted to verify through his own independent sources. The fifth defendant states that he carefully reviewed the documents in order to satisfy himself of the veracity of the allegations made against the claimant and to ensure that any campaign was undertaken with full knowledge of the facts and matters being referred to. The vast majority of the material was reviewed and considered by the fifth defendant prior to and during the formation of the campaign and before the June Event.
Having reviewed the documents provided to him the fifth defendant concluded that the campaign should be limited to the death of Ms Novikova in Beirut on 19 June 2004 because:
"There was so much viable, credible information about it, and because her imprisonment and abuse in the Claimant's presence, and her violent death on the Claimant's property, directly linked the Claimant to the crimes. My conclusions were reached after a considered analysis of a large number of documents from a variety of sources beyond those provided by the Client, all of which must be considered together."
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Issam Salah Hourani v Alistair Thomson and Others
...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 proteste......