Jameel and another v Wall Street Journal Europe

JurisdictionEngland & Wales
JudgeMr Justice Eady
Judgment Date20 January 2004
Neutral Citation[2004] EWHC 37 (QB),[2003] EWHC 2945 (QB),[2004] EWHC 38 (QB)
Docket NumberCase No: HQ02X00582,Case No: HQ 02 X00582
CourtQueen's Bench Division
Date20 January 2004
Between:
Mohammed Abdul Latif Jameel
claimants
Abdul Latif Jameel Company Limited
and
The Wall Street Journal Europe Sprl
defendant

[2003] EWHC 2945 (QB)

Before:

The Honourable Mr Justice Eady

Case No: HQ02X00582

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr James Price QC and Mr Justin Rushbrooke (instructed by Peter Carter-Ruck and Partners) for the Claimants

Mr Geoffrey Robertson QC and Mr Rupert Elliott (instructed by Finers Stephens Innocent) for the Defendant

Hearing dates : 24 and 25 November 2003

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.

The Hon. Mr Justice Eady

Mr Justice Eady
1

On 24 and 25 November 2003, a week before the trial began, I heard various submissions at a pre-trial review. In particular, Mr Robertson QC for the defendants sought to undermine the second Claimant's standing to sue in these proceedings for injury to reputation. There were three grounds of attack. First, it is suggested that this Claimant, which is a Saudi company, does not actually trade at all and thus cannot have a trading or business reputation that would be recognised by the law of defamation in this jurisdiction. Secondly, even if it is established that it does trade or carry on business in Saudi Arabia, he argues that it has no reputation within England and Wales such as to permit libel proceedings to be brought here. Leaving aside the question as to whether that is correct as a matter of law, it is quite obvious that both these submissions depend upon certain factual assumptions. It is accepted that they cannot therefore be resolved until at least the Claimants' evidence on the nature of the company, and the extent of its reputation here, has been placed before the court. At some stage I may have to rule on these matters in the light of any further submissions the parties care to make.

2

There is, however, a third line of attack which, in Mr Robertson's phrase, would enable him to "bowl out" the second Claimant on a preliminary issue and without the need for further evidence. He recognises that the argument is novel. He refers to the well known principle of English law that claimants are entitled to rely upon a presumption of damage once the publication of a libel has been established, as confirmed by the House of Lords for example in Shevill v Presse Alliance SA [1996] AC 959, and submits that the Human Rights Act 1998 requires modification to this general rule – at least to the extent that a foreign corporation must prove some actual measurable damage to its trading or business reputation in order to recover.

3

He submits that such a limitation is needed because there is no "pressing social need" for freedom of communication to be so restricted; especially it cannot be said to be "necessary" for media defendants to labour under the disadvantage of such a presumption when investigating and reporting on matters of public interest touching upon foreign corporations. He argues, in effect, that if any such entity is permitted to come to this court to seek vindication in respect of its reputation then it should at least be called upon to demonstrate that some such damage has occurred. The presumption of damage may be of long standing but, according to Mr Robertson, it has never been properly thought through in any English authority; in any event, even long standing principles, or "sacred cows", may sometimes have to be jettisoned under the analytical glare of Article 10: see e.g. Berezovsky v Forbes Inc [2001] EMLR 1030, 1037–8 at [10], per Sedley LJ.

4

Mr Price QC has argued for the Claimants that the values of the Convention, as reflected in the use of such concepts as "necessity" and "proportionality", are already sufficiently honoured in the approach of English courts to quantum of damages. If a corporate entity, foreign or otherwise, is unable to establish actual damage to its reputation or goodwill in the sense of measurable financial loss, then because it does not suffer anxiety, stress or hurt feelings, it will generally achieve vindication through a modest or even nominal award. If it were not even permitted to sue and put the record straight in respect of a defamatory publication, then English law would surely not be giving sufficient weight to protection of reputation. In Berezovsky itself the Court of Appeal, especially at [12], acknowledged both "… the legitimate purpose, recognised by Article 10(2), of protecting people from the publication of damaging and unjustified falsehoods" and the significance of Lord Hobhouse's reminder in Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 that "… a democratic society has no interest in the dissemination of untruths".

5

Mr Price argues, against that background, that since the law makes no provision (save in the very limited circumstances contemplated by sections 8–10 of the Defamation Act 1996) for a declaration of falsity, or any other mechanism for putting the record straight, it would be defective in protecting reputation if a corporation, which has ex hypothesi been libelled within this jurisdiction, were not even able to achieve nominal damages for that purpose. It would mean that false allegations, however serious, would remain uncorrected and to that extent the public could be seriously misled.

6

It was recognised by Sir Brian Neill's Committee on Defamation in July 1991, and eventually in the Defamation Act 1996 which to a large extent followed its recommendations, that it would be wholly unacceptable for the law to compel journalists to publish corrections or apologies. Sometimes where defendants cannot prove the truth of what they have published, but nevertheless still believe it to be true, or even that it may be true, it would be an unacceptable restriction upon their freedom of communication to require that they publish the contrary. Correspondingly, of course, there would be a real possibility of the public being given a false impression by such a compulsory vindication. Mr Price argues that, since the rights of journalists are so protected, the other side of the coin is that the law must afford some proportionate means for those who have been libelled to achieve an authoritative vindication. The only method of obtaining this objective known to the common law is by an award of damages. Since it is obvious that a company can only suffer "in its pocket", as Lord Reid put it in Lewis v Daily Telegraph [1964] A.C. 234, 262, it will often be appropriate in the absence of demonstrable loss that a company will require only a relatively modest award to achieve the object of vindication.

7

It has long been said that the purpose of general damages in a libel action is threefold. First, in the case of an individual claimant, there may be a need to compensate for hurt feelings or distress. Secondly, there will be the need to compensate for any actual injury to reputation. Thirdly, there is the element of vindication. In a classic passage in Cassell v Broome [1972] A.C. 1027 1071, Lord Hailsham L.C. explained this as follows:

"Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven under ground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by-stander of the baselessness of the charge. As Windeyer J. well said in Uren v John Fairfax and Sons Pty. Limited., 117 C.L.R.115, 150:

'It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways–as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here solatium rather than a monetary recompense for harm measurable in money.'

This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries".

8

Obviously it is necessary to distinguish between human and corporate claimants to the extent that the former have characteristics that cannot possibly have any application to the intellectual construct that a corporation represents. The most obvious example is the capacity to feel and to suffer. There is no reason, as a matter of logic, to distinguish between human and corporate claimants save to that extent.

9

In particular, there is a need to include an element of vindication in any award of damages to a corporation that succeeds in libel proceedings. That might well be achieved by an award of special damages where significant and measurable loss has been established. As with a human being, on the other hand, there is no rational basis to preclude the element of vindication merely because there happens to be no demonstrable financial damage.

10

This seems to me to be clearly what underlay the words of Goddard L.J. in English & Scottish Co–operative Properties Mortgage Investment Society Ltd v Odhams Press Ltd [1940] 1KB 440, 461–2:

"There is no obligation on the plaintiffs to show that they have suffered actual damage. A plaintiff may, if he can, by way of aggravating damages, prove that he has suffered actual damage. But in every case he is perfectly entitled to say that there has been a serious libel upon him; that the law assumes he must have suffered damage; and that he is entitled to substantial damages. If the defendant, by giving evidence in mitigation of damages, or by saying that the libel is very nearly true, but not quite, can...

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