Jamal Hijazi (by his litigation friend Abdulnaser Youssef) v Stephen Yaxley-Lennon
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 16 November 2020 |
| Neutral Citation | [2020] EWHC 3058 (QB) |
| Date | 16 November 2020 |
| Docket Number | Case No: QB-2019-001740 |
| Court | Queen's Bench Division |
[2020] EWHC 3058 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2019-001740
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Helme and Emma Foubister (instructed by Burlington Legal LLP) for the Claimant
John Stables (instructed by Watson Woodhouse Limited) for the Defendant
Hearing date: 3 November 2020
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Nicklin
This is a claim for libel. The Claimant complains of two videos that were posted on Facebook by the Defendant on 28 and 29 November 2018 (“the First/Second Video”). Both videos were self-recordings showing the Defendant addressing his remarks directly to the camera. They were the Defendant's response to the dissemination via social media of a video clip showing an altercation between the Claimant and another boy, “B”, in which the Claimant was pushed to the floor by B, which has been referred to as the “Viral Video”. The First Video was just short of 7 minutes long, and the Second Video just over 8 minutes. The Defendant has admitted publication of the Videos, that they defamed the Claimant at common law, and that their publication has caused serious harm to the Claimant's reputation. The Claimant's case is that the First Video and Second Video were “viewed directly” respectively over 850,000 and 100,000 times.
On 21 April 2020, I determined the natural and ordinary meaning of the two Videos ( [2020] EWHC 934 (QB) [18]–[19] – “the Meaning Judgment”). Agreed transcripts of the two videos are set out in Appendices 1 and 2 to the Meaning Judgment. The meaning found by the Court was:
i) the First Video:
“The Claimant had (1) as part of a gang, participated in a violent assault on a young girl which had caused her significant injuries; and (2) threatened to stab another child.”
ii) the Second Video:
“The Claimant had, as part of a gang, participated in a violent assault on a young girl which had caused her significant injuries.”
The proceedings have not progressed very far. The Claim Form was issued on 15 May 2019. In his Defence, dated 27 June 2019, the Defendant relied upon a defence of truth, under s.2 Defamation Act 2013. No Reply has yet been served. After the parties had filed their statements of case, there was a Costs and Case Management hearing on 14 November 2019. Costs budgeting – on the basis of the statements of case as they stood at that time – was carried out and directions given for determination of meaning as a preliminary issue. There has been something of a running dispute, ever since service of the Defence, over the failure (and later, refusal) by the Defendant to provide the names of some of those alleged in the particulars of truth to have been subjected to alleged incidents of violence by the Claimant. I will return to this below.
Following the ruling on meaning, by Order dated 21 April 2020, I directed that, in consequence of the determination of meaning:
i) the Claimant was to file and serve an Amended Particulars of Claim by 28 April 2020; and
ii) the Defendant was to file and serve an Amended Defence by 19 May 2020; and
iii) the Claimant was to file and serve a Reply by 2 June 2020.
On 12 May 2020, the Defendant issued an Application Notice seeking directions for an application for non-party disclosure against a local authority, seeking records from a school in relation to certain incidents that had been pleaded in the original defence of truth, and a variation of the timetable provided by the Order of 21 April 2020.
I refused that application, by Order dated 18 May 2020. Following the ruling on meaning, the Defendant was required to serve an Amended Defence. Any application for third-party disclosure would only be considered once his Amended Defence was filed. Whether the Defendant continued to rely upon a defence of truth, and if so in what terms, would only be apparent once the Amended Defence was served. Simply as a matter of practicality, I extended the time for the service of the Amended Defence to 29 May 2020 and for service of the Reply to 19 June 2020. The parties later agreed to extend the time for the Amended Defence to 5 June 2020.
On 4 June 2020, the Defendant filed his Amended Defence. In it, the Defendant:
i) amended his defence of truth to defend, as substantially true, the meanings of the two Videos found by the Court;
ii) added some further material to the Particulars of Truth; and
iii) added a new defence seeking to defend the publication of the two Videos as publications on a matter of public interest under s.4 Defamation Act 2013 (“the public interest defence”).
The public interest defence was unheralded – in the sense that no prior indication had been given by the Defendant that he intended to seek to rely upon such a defence. It was also plainly outside the permission to amend granted by the Order of 21 April 2020: it was not consequential on the ruling on meaning. The Claimant objected to the addition of the public interest defence and also to the amendments to the particulars of truth. The Defendant's solicitors responded on 17 June 2020:
“It is my experience that an opponent would usually agree to such additional amendments unless there was some glaring problem with them. However, if you refuse to do so then an application will be made and if successful there may be costs consequences.”
That stance was misplaced. The Defendant should have sought consent from the Claimant to include amendments beyond those permitted by the Order of 21 April 2020 and, if consent was not given, made an application to the Court seeking permission for these amendments. The Defendant did neither. Instead, there appears to have been an unproductive exchange of correspondence between the parties, including a dispute about whether the Claimant ought to serve a Reply. In their letter of 6 July 2020, the Claimant's solicitors said:
“As you have now accepted, your client did not have permission pursuant to the Court Order of 18 May 2020 to plead a new public interest defence… It is disappointing that you did not raise this issue at the time you originally sought to serve the Amended Defence. Further no warning was given of the proposed amendment, which of course could have been previously pleaded at any stage. We note that even now there has been no explanation of why your client has chosen to take this course.”
The solicitors sought confirmation from the Defendant's solicitors that the parts of the Amended Defence for which the Defendant had not obtained permission to amend would be removed.
The Defendant did not do so and, eventually, he issued an Application Notice dated 20 July 2020 seeking permission to amend his Defence. The application was supported by his second witness statement, dated 20 July 2020. On 31 July 2020, I gave directions that the application to amend the Defence was to be listed before me in the autumn term. I also ordered that the time for service of the Reply be extended until after the Court had determined the amendment application.
Save for some specific examples, I will not set out the full text of the amendments for which the Defendant seeks permission. The following will suffice by way of description.
i) Under the existing particulars of truth, the proposed amendments fall into two categories and can be summarised as (a) adding clarification and further details to existing incidents of alleged violent behaviour of the Claimant; and (b) seeking to add three new incidents.
ii) Under the particulars of the new public interest defence, the Defendant has relied upon the following matters (with paragraph numbers referring to paragraphs in the draft Amended Defence):
a) The Viral Video was recorded on or around 25 October 2018 and then published via social media on or around 27 November 2018 (§§13–14).
b) The appearance of a Go Fund Me page, on 27 November 2018, enabling people to donate money to the Claimant. The Defendant alleges that the Viral Video (§§15–18):
“…was made public in order to enrich the Claimant and that the Claimant had a financial interest in misrepresenting the playing ground incident as one of the racist bullying of a refugee in order to maximise his income from the Go Fund Me page. Alternatively, the Claimant was being controlled by third parties who were using him to raise these funds by misrepresenting the incident on the playing field.”
c) By the time of publication of the Videos by the Defendant, the Claimant had received substantial amounts of money via the Go Fund Me page (§22).
d) The Viral Video was reported upon by national media and B, who was 15 years-old, was “universally condemned” for his racist bullying of the Claimant, a Syrian refugee. No attempt had been made to obtain B's side of the story. B had received death threats, was under police protection and he and his family had been forced to leave their home (§§19–21).
e) The Defendant was contacted by parents of children at the school attended by B and the Claimant. They told him that the allegations against B were not true. Whilst the events in the Viral Video were factually accurate, the context or background was not one of racist bullying (§23).
f) The Defendant contacted B and visited him to record an interview. B told him that he had had an argument with the Claimant, had pushed him to the ground and squirted water on him; denied that there was any racist...
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