Jameel (Yousef) v Dow Jones & Company Inc.

JurisdictionEngland & Wales
Neutral Citation[2004] EWHC 1618 (QB),[2004] EWHC 1619 (QB)
Date2004
Year2004
CourtQueen's Bench Division
Court of AppealJameel (Yousef)vDow Jones & Co Inc[2005] EWCA Civ 752004 Nov 29, 30, Dec 1; 2005 Feb 3Lord Phillips of Worth Matravers MR, Sedley and Jonathan Parker LJJ

Defamation - Pleadings - Presumption of damage - Libel claim by foreign individual - Minimal publication in England of alleged defamatory material - Publisher pleading claimant precluded from relying on common law presumption of damage - Whether presumption of damage compatible with publisher's right to freedom of expression - Whether defence plea to be struck out - Human Rights Act1998 (c 42), Sch. 1, Pt I, art 10 - Practice - Pleadings - Striking out - Abuse of process - Defamation claim - Minimal publication within jurisdiction causing minimal damage to claimant's reputation - Whether “real and substantial tort” test applicable - Whether claim to be struck out as abuse of process

The foreign claimant issued defamation proceedings in England against the publisher of a US newspaper in respect of an article posted on an Internet website in the USA, which was available to subscribers in England. The claimant alleged that the article, together with a list of names in an Internet hyperlink referred to in the article, implied that he had been or was suspected of having been involved in funding a well known terrorist organisation. The publisher averred that only five subscribers within the jurisdiction had accessed the Internet article, that the claimant had in fact suffered no or minimal damage to his reputation and that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998F1, precluded him from relying on any legal presumption of damage to establish injury or harm. In due course the claimant, while disputing that only five subscribers had read the article, accepted that there had been minimal publication within the jurisdiction. In interlocutory proceedings the judge granted the claimant's application to strike out that part of the defence by which the publisher sought to prevent him from relying on the legal presumption of damage and refused the publisher's application for summary dismissal of the claim, rejecting its contention that the claimant had no realistic prospect of success.

On the publisher's appeals against both orders—

Held, (1) dismissing the appeal against the striking out of part of the defence, that it was an irrebuttable presumption in English defamation law that the publication of a defamatory article damaged the person defamed by it; that the bringing of a defamation claim by a claimant who had suffered no or minimal damage to his reputation might constitute an interference with freedom of expression that was not necessary for the protection of the claimant's reputation; but that such cases would be very rare, would not have a chilling effect upon the media and did not require the presumption of damage to be abandoned for incompatibility with article 10 of the Convention; and that in such circumstances the appropriate remedy for a defendant was to challenge the claimant's resort to English jurisdiction, to apply to strike out the action as an abuse of process or to seek the imposition of costs sanctions (post, paras 27, 32, 3741).

(2) Allowing the appeal and striking out the claim as an abuse of process, that, adopting the proactive approach required by the overriding objective under the Civil Procedure Rules of dealing with cases justly, and keeping a proper balance between the Convention right to freedom of expression and the protection of individual rights, the court was required to stop as an abuse of process defamation proceedings that were not serving the legitimate purpose of protecting the claimant's reputation, which included compensating the claimant only if that reputation had been unlawfully damaged; that the test whether there was a “real and substantial tort”, which the court applied when considering an application to set aside permission for service out of the jurisdiction, was equally applicable when considering whether a defamation claim was an abuse of process; that publication within the jurisdiction was minimal and did not amount to a real and substantial tort, the damage to the claimant's reputation was insignificant and the facts did not justify the grant of an injunction prohibiting further publication; and that, in those circumstances, it was disproportionate and an abuse of process for the claimant to proceed with his claim (post, paras 55, 69, 70, 74, 7677).

(3) That to dismiss the claim for abuse of process did not infringe article 6 of the Convention, since that article required the provision of a fair and public hearing only in relation to an alleged infringement of rights which was real and substantial (post, para 71).

Duke of Brunswick v Harmer(1849) 14QB185; Shevill v Presse Alliance SA[1996] AC959, HL(E) and Berezovsky v Michaels[2000] 1WLR1004, HL(E) considered.

Decision of Eady J [2004] EWHC 1619 (QB) affirmed.

Decision of Eady J [2004] EWHC 1618 (QB) reversed.

The following cases are referred to in the judgment of the court:

Berezovsky v Forbes Inc[1999] EMLR278, CA; sub nom Berezovsky v Michaels[2000] 1WLR1004; [2000] 2All ER98, HL(E)

Brunswick (Duke of) v Harmer(1849) 14QB185

Chadha v Dow Jones & Co Inc[1999] EMLR724, CA

Handyside v United Kingdom(1976) 1EHRR737

Hough v London Express Newspaper Ltd[1940] 2KB507; [1940] 3All ER31, CA

Hulton (E) & Co v Jones[1910] AC20, HL(E)

Jameel v Times Newspapers Ltd[2003] EWHC 2609 (QB)

Jameel (Mohammed) v Wall Street Journal Europe Sprl[2003] EWHC 2945 (QB); [2004] 2All ER92; [2005] EWCA Civ 74; [2005] QB904; [2005] 2WLR1577; [2004] 2All ER92, CA

Kroch v Rossell et Cie Société des Personnes à Responsibilité Ltd[1937] 1All ER725, CA

Loutchansky v Times Newspapers Ltd (Nos 2–5)[2001] EWCA Civ 1805; [2002] QB783; [2002] 2WLR640; [2002] 1All ER652, CA

Morgan v Odhams Press Ltd[1971] 1WLR1239; [1971] 2All ER1156, HL(E)

Multigroup Bulgaria Holding AD v Oxford Analytica Ltd[2001] EMLR737

Prager and Oberschlick v Austria(1995) 21EHRR1

Schellenberg v British Broadcasting Corpn[2000] EMLR296

Shevill v Presse Alliance SA[1996] AC959; [1996] 3WLR420; [1996] 3All ER929, HL(E)

Shevill v Presse Alliance SA (Case C-68/93)[1995] 2AC18; [1995] 2WLR499, ECJ

Spiliada Maritime Corpn v Cansulex Ltd[1987] AC460; [1986] 3WLR972; [1986] 3All ER843, HL(E)

Sunday Times v United Kingdom(1979) 2EHRR245

Sunday Times v United Kingdom (No 2)(1991) 14EHRR229

Tolstoy Miloslavsky v United Kingdom(1995) 20EHRR442

Wallis v Valentine[2002] EWCA Civ 1034; [2003] EMLR175, CA

Zana v Turkey(1997) 27EHRR667

The following additional cases were cited in argument:

Bachchan v India Abroad Publications Inc(1992) 585NYS 2d661

Bladet Troms? v Norway(1999) 29EHRR125

Broxton v McClelland[1995] EMLR485, CA

Campbell v MGN Ltd[2004] UKHL 22; [2004] 2AC457; [2004] 2WLR1232; [2004] 2All ER995, HL(E)

Castells v Spain(1992) 14EHRR445

Charleston v News Group Newspapers Ltd[1995] 2AC65; [1995] 2WLR450; [1995] 2All ER313, HL(E)

Gertz v Robert Welch Inc(1974) 418US323

Goldsmith v Sperrings Ltd[1977] 1WLR478; [1977] 2All ER566, CA

Lingens v Austria(1986) 8EHRR407

Reynolds v Times Newspapers Ltd[2001] 2AC127; [1998] 3WLR862; [1998] 3All ER961, CA

Slim v Daily Telegraph Ltd[1968] 2QB157; [1968] 2WLR599; [1968] 1All ER497, CA

Thorgeirson v Iceland(1992) 14EHRR843

The following additional cases, although not cited, were referred to in the skeleton arguments:

Al Rajhi Banking and Investment Corpn v Wall Street Journal Europe Sprl (No 2)[2003] EWHC 1776 (QB)

Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)[2002] EWCA Civ 1642; [2003] 1WLR577, CA

Biogen Inc v Medeva plc[1997] RPC1, HL(E)

English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd[1940] 1KB440; [1940] 1All ER1, CA

McFarlane v Tayside Health Board[2000] 2AC59; [1999] 3WLR1301; [1999] 4All ER961, HL(Sc)

Ratcliffe v Evans[1892] 2QB524, CA

INTERLOCUTORY APPEAL from Eady J

By a claim form issued on 18 July 2003 and particulars of claim dated 12 July 2003 the claimant, Yousef Abdul Latif Jameel, claimed damages against the defendant publisher, Dow Jones & Co Inc (“Dow Jones”), for an alleged libel contained in an article published by it from about 18 March 2003 and headlined “War on Terror: List of early Al-Qaeda donors points to Saudi elite charities”, which appeared together with a hyperlink to a “list of donors” in the Internet online edition of “The Wall Street Journal” available to subscribers within the jurisdiction of the English High Court. The claimant additionally sought an injunction restraining Dow Jones from further publication within the jurisdiction of the same or similar words defamatory of him. By para 3 of its defence Dow Jones stated that they would contend that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998, precluded the claimant from relying on any legal presumption of damage to establish standing, injury or harm.

By an application notice dated 2 February 2004 served pursuant to CPRr 3.4(2)(a) the claimant applied, inter alia, to strike out para 3 of the defence on the ground that it disclosed no reasonable grounds for defending the claim. By an application notice dated 25 March 2004 Dow Jones sought summary dismissal of the claim pursuant to section 8 of the Defamation Act 1996, CPRPt 53 and CPRPt 24, on the ground that the claimant had no realistic prospect of success and no other reason why the claim should be tried. On 6 July 2004 Eady J refused to dismiss the claim, allowed the claimant's application to strike out para 3 and gave Dow Jones permission to appeal only against his decision to strike out on the presumption of...

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352 cases
  • Mueen-Uddin v Secretary of State for the Home Department
    • United Kingdom
    • Supreme Court
    • 20 June 2024
    ...and should be struck out on the ground recognised by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 (“ 24 The judge accepted those submissions (para 83). The proceedings were in his view an abuse of process, applying the approach laid down ......
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    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 July 2022
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  • McLaughlin & others v London Borough of Lambeth
    • United Kingdom
    • Queen's Bench Division
    • 2 November 2010
    ...1996]; and/or (d) it does not on its particular facts justify the expenditure of the Court time and costs which it entails [ Jameel v Dow Jones [2005] QB 946]. 10 The Defendants also made an application by the same Notice for summary judgment pursuant to CPR 24. The grounds for this applica......
  • Edmund Patrick Jordan v MGN Ltd
    • United Kingdom
    • Chancery Division
    • 24 July 2017
    ...in this was sensible and in accordance with dicta in Hanspaul v Ward [2016] EWHC 1358 (Ch). Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 at para 69 was relied on as demonstrating that the court should not allow a party to pursue a pointless action; he submitted that it would be ou......
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3 firm's commentaries
  • Serious harm in defamation law
    • Australia
    • Mondaq Australia
    • 15 July 2022
    ...serious harm, the Whittington Decision considered UK cases, namely: Case What does it say? Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 from the Court of Appeal (at 621 "Trivial" harm will not justify interfering with the freedom of expression or rebut the common law presumption of da......
  • Is The Game Worth The Candle? – Court Of Appeal Clarifies The Test For Abuse Of Process
    • Ireland
    • Mondaq Ireland
    • 10 August 2017
    ...to abuse of process and, in particular, a 2005 judgment of the English Court of Appeal in Jameel (Yousef) v Dow Jones & Co. Inc [2005] Q.B. 946 in support of its application. Jameel related to an article posted by Dow Jones on web servers in New Jersey which was later accessed by 5 peop......
  • Blog And Maybe Not Be Damned
    • United Kingdom
    • Mondaq United Kingdom
    • 3 April 2012
    ...libel claim would be verging on the trivial. Thus any claim would come under the rule in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB946 where the Claimant found his action struck out because it was so trivial as not to be "worth the wick, let alone the In an additional gloss on E-Com......
7 books & journal articles
  • Internet Libel Actions Stayed as an Abuse of Process in the UK
    • Canada
    • Irwin Books Cyberlibel: Information Warfare in the 21st Century? Part II
    • 15 June 2011
    ...in all the circumstances, the case falls within the doctrine explained by the Court of Appeal in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. It is said that there is no realistic prospect of a trial of these issues yielding any tangible or legitimate advantage, such as to outweigh t......
  • Publication and Hyperlinks
    • Canada
    • Irwin Books Cyberlibel: Information Warfare in the 21st Century? Part IV
    • 15 June 2011
    ...of abuse of process elsewhere in this book, it is important enough to be included here as well. he Court in Jameel v. Dow Jones, [2005] QB 946 summarized the law relating to the abuse of process principle as follows at paras. 40, 54–56, 66, 69–70: We accept that in the rare case where a cla......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2016, December 2016
    • 1 December 2016
    ...Suang v Attorney-General [2015] 1 SLR 26. 62 Cap 256A, 2015 Rev Ed. 63 [2001] 3 SLR(R) 379. 64 [2013] SGCA 9. 65 [2016] 4 SLR 977. 66 [2005] QB 946. 67 Basil Anthony Herman v Premier Security Co-operative Ltd [2010] 3 SLR 110 at [65]; ATU v ATY [2015] 4 SLR 1159 at [28], both citing Rubber ......
  • Tort Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2013, December 2013
    • 1 December 2013
    ...only three persons in the examination room, namely, the plaintiff, the officer and the doctor: see Jameel (Yousef) v Dow Jones & Co Inc[2005] QB 946 and Kesavan Engineering & Construction Pte Ltd v S P Powerassets Ltd[2011] SGDC 179. The other actions in tort (malicious prosecution, abuse o......
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