Jameel (Yousef) v Dow Jones & Company Inc.

JurisdictionEngland & Wales
Neutral Citation[2004] EWHC 1618 (QB),[2004] EWHC 1619 (QB)
CourtQueen's Bench Division
Court of Appeal Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75 2004 Nov 29, 30, Dec 1; 2005 Feb 3 Lord 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 Act 1998 (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) 14 QB 185; Shevill v Presse Alliance SA [1996] AC 959, HL(E) and Berezovsky v Michaels [2000] 1 WLR 1004, 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] EMLR 278, CA; sub nom Berezovsky v Michaels [2000] 1 WLR 1004; [2000] 2 All ER 98, HL(E)

Brunswick (Duke of) v Harmer (1849) 14 QB 185

Chadha v Dow Jones & Co Inc [1999] EMLR 724, CA

Handyside v United Kingdom (1976) 1 EHRR 737

Hough v London Express Newspaper Ltd [1940] 2 KB 507; [1940] 3 All ER 31, CA

Hulton (E) & Co v Jones [1910] AC 20, HL(E)

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

Jameel (Mohammed) v Wall Street Journal Europe Sprl [2003] EWHC 2945 (QB); [2004] 2 All ER 92; [2005] EWCA Civ 74; [2005] QB 904; [2005] 2 WLR 1577; [2004] 2 All ER 92, CA

Kroch v Rossell et Cie Société des Personnes à Responsibilité Ltd [1937] 1 All ER 725, CA

Loutchansky v Times Newspapers Ltd (Nos 2–5) [2001] EWCA Civ 1805; [2002] QB 783; [2002] 2 WLR 640; [2002] 1 All ER 652, CA

Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156, HL(E)

Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 737

Prager and Oberschlick v Austria (1995) 21 EHRR 1

Schellenberg v British Broadcasting Corpn [2000] EMLR 296

Shevill v Presse Alliance SA [1996] AC 959; [1996] 3 WLR 420; [1996] 3 All ER 929, HL(E)

Shevill v Presse Alliance SA (Case C-68/93) [1995] 2 AC 18; [1995] 2 WLR 499, ECJ

Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460; [1986] 3 WLR 972; [1986] 3 All ER 843, HL(E)

Sunday Times v United Kingdom (1979) 2 EHRR 245

Sunday Times v United Kingdom (No 2) (1991) 14 EHRR 229

Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442

Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 175, CA

Zana v Turkey (1997) 27 EHRR 667

The following additional cases were cited in argument:

Bachchan v India Abroad Publications Inc (1992) 585 NYS 2d 661

Bladet Troms? v Norway (1999) 29 EHRR 125

Broxton v McClelland [1995] EMLR 485, CA

Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457; [2004] 2 WLR 1232; [2004] 2 All ER 995, HL(E)

Castells v Spain (1992) 14 EHRR 445

Charleston v News Group Newspapers Ltd [1995] 2 AC 65; [1995] 2 WLR 450; [1995] 2 All ER 313, HL(E)

Gertz v Robert Welch Inc (1974) 418 US 323

Goldsmith v Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566, CA

Lingens v Austria (1986) 8 EHRR 407

Reynolds v Times Newspapers Ltd [2001] 2 AC 127; [1998] 3 WLR 862; [1998] 3 All ER 961, CA

Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 2 WLR 599; [1968] 1 All ER 497, CA

Thorgeirson v Iceland (1992) 14 EHRR 843

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] 1 WLR 577, CA

Biogen Inc v Medeva plc [1997] RPC 1, HL(E)

English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440; [1940] 1 All ER 1, CA

McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 3 WLR 1301; [1999] 4 All ER 961, HL(Sc)

Ratcliffe v Evans [1892] 2 QB 524, CA


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 CPR r 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, CPR Pt 53 and CPR Pt 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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