Issam Salah Hourani v Alistair Thomson and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 10 March 2017 |
| Neutral Citation | [2017] EWHC 432 (QB) |
| Docket Number | Case No: HQ14D05164 |
| Court | Queen's Bench Division |
| Date | 10 March 2017 |
[2017] EWHC 432 (QB)
Mr Justice Warby
Case No: HQ14D05164
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
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, 6–10 & 13 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.
I. INTRODUCTION
This case arises from a campaign of street protest, online publication, and sticker distribution conducted in 2014. The campaign involved targeting three individuals and denouncing them as murderers, responsible for the torture, drugging, beating and sexual assault of a young woman, Anastasiya Novikova, and her subsequent death, in Beirut, in 2004. The claimant ("Mr Hourani") was one of the three targets of the campaign. The others were Mr Hourani's brother, Devincci Hourani, and Rakhat Aliyev, Mr Hourani's brother-in-law.
The fifth defendant ("Dr Waller") organised and directed the campaign. He did so for money, on the instructions of one or more third parties ("the Client(s)") whose identities have not yet been revealed. The Client(s) paid handsomely for the campaign. The agreed budget was just shy of US$500,000. The first and second defendants ("Mr Thomson" and "Mr McCarthy") were recruited and paid to help Dr Waller. The third defendant ("Ms Blair") is Dr Waller's fiancée. Her name was used by him, as was the fourth defendant ("Psybersolutions"), a company ostensibly controlled by Ms Blair but in reality under Dr Waller's control.
The campaign involved two street demonstrations in London. One was on 19 June 2014 outside Mr Hourani's home in Lowndes Square, SW1 ("the June Event"). The second was on 16 November 2014 outside Kensington Palace Gardens, and in those gardens or Hyde Park ("the November Event"). At these events individuals who were paid to attend held up banners and placards and shouted slogans. The campaign involved online publications via websites, on Facebook, YouTube, and Twitter, with many such publications carrying edited recordings of the June and November Events. Further, from about late October 2014 stickers were distributed in the London SW1 area, in the vicinity of Mr Hourani's home. This was all done anonymously or pseudonymously.
In December 2014 Mr Hourani started these proceedings complaining of libel and harassment contrary to the Protection from Harassment Act 1997 ("the 1997 Act"). Originally, the claims were brought against Persons Unknown. But armed with the registration number of a van belonging to one of the organisers, Mr Hourani was able to identify an organisation called "Media Gang", which had helped with the June Event. Through Media Gang, he discovered the roles of the first four defendants. He now sues all of them for libel, and for harassment. The latter claim covers very much the same ground as the libel claim; it is in the main a claim for harassment by means of the offending publications. Later, Mr Hourani found out about the role of Dr Waller, and in July 2016 he was able to join him as a defendant. The limitation period for libel had expired by then. The claim against Dr Waller is for harassment only.
The main issues as to liability are (1) whether and if so to what extent the acts complained of involved publication within this jurisdiction; (2) the existence and extent of each defendant's responsibility for those acts which did involve publication; (3) the defamatory meanings of the publications complained of; (4) whether those publications were harmful enough to Mr Hourani's reputation to be actionable in libel; (5) whether the roles of any, and if so which of the defendants, involved a course of conduct which amounted to harassment, and which that defendant knew or ought to have known amounted to harassment, of Mr Hourani; and (6) the merits of the affirmative defences relied on by the defendants.
The affirmative defences relied on are: (a) the defence of publication on a matter of public interest, which is put forward by Mr Thomson and Mr McCarthy in answer to the libel claims against them; (b) defences relied on by all the defendants in answer to the harassment claim: that any course of conduct in which they did engage did not amount to harassment because it was (i) pursued for the purpose of preventing or detecting crime and/or (ii) in the particular circumstances, reasonable. The public interest defence to libel is provided for by s 4 of the Defamation Act 2013 ("the 2013 Act"). The twin defences relied on in answer to the harassment claim are provided for by s 1(3) of the 1997 Act. It is the examination of these defences that has taken up the majority of the time at this trial.
The defendants' case in support of their defences to harassment has three main aspects to it. First it is said that the campaign involved the exercise of rights of protest and freedom of expression. Secondly, it is said that Dr Waller reasonably believed certain things about what happened to Ms Novikova, and the role of Mr Hourani in those events, and that it was in the public interest and reasonable for those things to be brought to the attention of the public. Thirdly, in the course of the trial it has emerged that the defendants' intended case includes an assertion that the things Dr Waller believed, or most of them, were in fact true. Those things are that Ms Novikova was tortured, drugged, beaten and sexually assaulted by Rakhat Aliyev and others in a Beirut apartment; that Mr Hourani knew of and facilitated these acts; and that he was "thereby an accomplice to Ms Novikova's murder and/or would have been responsible for her murder under the US felony murder rule." Anastasiya Novikova died on 19 June 2004. She was found impaled on railings, having fallen five stories from the balcony of the Apartment. She died, say the defendants, from a head injury inflicted by someone prior to her fall.
When this third aspect of the defendants' case became clear, as a result of Mr Hudson's opening, concern was expressed that the defendants had not made it clear beforehand that this was their case, and that their factual case as opened went beyond what had been pleaded. It was pointed out that the first four defendants had previously made it clear that it was not their case that any such defamatory imputations against Mr Hourani were true. Mr Hudson then sought permission to re-re-amend the Defence, and he put forward a document entitled "Defendants' Further Information in relation to the Re-re-amended Defence" which summarised the intended case. Ms Rogers opposed several of the proposed amendments, and much of the Further Information document. After hearing argument on these applications I granted some amendments that were unopposed, and adjourned the rest of the application for determination as part of this final judgment on the merits. In the meantime I allowed evidence and cross-examination on the case as set out in the contested documents to proceed " de bene esse" — without prejudice to my eventual conclusions on the application for permission to amend and the Further Information document.
Mr Hourani denies any knowledge of or involvement in any of the alleged criminal activity. His case is that he is the victim of a malicious campaign of vilification and harassment, instigated and organised by the Kazakh authorities, of which the activities complained of are just a part.
The remedies claimed by Mr Hourani are damages for libel against the first four defendants, damages for harassment against all five of them and injunctions to restrain further libel and harassment. At the end of the trial Mr Hourani sought permission to amend his claim to seek, in addition, an order for the disclosure by Dr Waller of the identities of the Client(s). It is the Client(s) who have funded the defence of the claim. I had declined to make an interim order for disclosure of the identities of the Client(s) at the start of the trial, but I held over, until after judgment on the merits, a decision on whether such an order might be justified for the purpose of enabling Mr Hourani to seek, or consider seeking, remedies against the Client(s): [2017] EWHC 173 (QB).
The trial has consumed ten days of reading, oral evidence, and argument. I have heard oral evidence from all the individual parties: Mr Hourani, Dr Waller, Messrs Thomson & McCarthy and Ms Blair. I have also heard evidence from Mr Dietrich of Media Gang, and read witness statements from two others, served on behalf of Mr Hourani. Seventeen lever arch files of documents are in evidence, as well as video recorded material from the websites. Three files of legal materials have been relied on. After the hearing I have taken time to consider my judgment.
The main conclusions I have arrived at are as follows.
(1) Dr Waller was responsible for all aspects of the campaign complained of, Mr Hourani has proved that Dr Waller's role in organising and directing the campaign amounted to a course of conduct involving publication within this jurisdiction which was oppressive, unreasonable, and harmful enough to amount to harassment contrary to the 1997 Act. Dr Waller should have been aware that his conduct amounted to harassment. The course of conduct was not pursued for the purpose of preventing or detecting crime. Nor was it reasonable in all the circumstances. The truth of the allegations against Mr Hourani has not been established....
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Table of Cases
................................................................................................. 219 Hourani v Thomson & Ors (Rev 1), [2017] EWHC 432 (QB) ...................................................34 Hudson v Myong, 2020 BCSC 517 ............................................................
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