Khader v Aziz and Another
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] EWHC 2027 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ08X01338 & HQ09X01023 |
| Date | 31 July 2009 |
[2009] EWHC 2027 (QB)
The Honourable Mr Justice Eady
Case No: HQ08X01338 & HQ09X01023
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Andrew Veen (instructed by Public Access) for the Claimant
Heather Rogers QC (instructed by Davenport Lyons) for the First Defendant in the First Action
Aidan Eardley (instructed by Davenport Lyons) for the Second Defendant in the First Action and for the First and Second Defendants in the Second Action
Hearing date: 24 July 2009
Approved Judgment
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.
Mr Justice Eady:
There are two actions before the court which have been brought by the Claimant in respect of events said to have taken place in April 2007. The first action was begun on 8 April 2008 (HQ08X01338) against Mariam Aziz, the First Defendant, and Matthew Dowd, an associate solicitor with the firm Davenport Lyons which acted on her behalf. He is the Second Defendant in the first action, which was begun a few days prior to the expiry of the 12-month limitation period. The second action (HQ09X01023) was brought against the firm Davenport Lyons, as the First Defendants, and a partner, Mark Bateman, who handled the Claimant's affairs and had supervisory responsibility for Mr Dowd. This action was issued as late as 11 March 2009 and thus one of the applications now before the court is that the proceedings should be struck out as time barred under s.4A of the Limitation Act 1980, as amended by the Defamation Act 1996. Mr Andrew Veen has acted on behalf of the Claimant in both actions. Ms Heather Rogers QC has represented the interests of Ms Aziz in the first action and Mr Aidan Eardley those of Mr Dowd, in the first action, and both Defendants in the second action.
Both actions, as they presently stand, are founded upon claims for defamation and injurious falsehood, although there is an application before me on the Claimant's behalf to serve a much expanded pleading which would include other alleged publications and also a claim based in conspiracy.
It is necessary to set out the background circumstances giving rise to these claims, which appear to be somewhat inconsequential.
On 12 April 2007 there was published in the Daily Mail newspaper an article under the heading “How Queen Mariam spent a penny and lost a fortune”. This referred to the First Defendant (who is the former wife of the Sultan of Brunei, hence the appellation “Queen”). Although it is not itself sued upon, I should set it out so that the issues in this litigation can be understood:
“As the former wife of the Sultan of Brunei, one-time richest man in the world, former air hostess Mariam Bell is a woman who has become used to the finer things in life – a 1,788-room palace, a fleet of Rolls-Royces and the pick of a fleet of Gulfstream jets in which to travel the globe.
Even so, when a £1 million diamond bracelet slips from such a woman's wrist, you would still expect her to realise it. And in these grasping times, what are the odds of such a bauble being returned?
Since her 22-year marriage ended in 2003 with what was then believed to be the world's biggest divorce settlement, the former queen has divided her time between Brunei and a mansion in Kensington.
She likes to relax at the roulette tables, and her favourite club is Mayfair's Les Ambassadeurs, where fellow players include retail billionaire Sir Philip Green and theatre impresario Bill Kenwright.
In such glamorous company, Mariam, 50, who has four children with the Sultan, never goes unnoticed because she is always bedecked with precious jewels.
So it was perhaps no surprise that when she returned to the roulette table after answering a call of nature the other evening, no one noticed she was missing the diamond bracelet. Even her permanent retinue of five bodyguards – of whom two are women – failed to spot that she had lost the valuable gems.
Fortunately, not everyone in Les Ambassadeurs was engrossed solely in the gaming tables. Some time later, former Knightsbridge dress shop owner Leila Khader – one-time friend of the late King Hussein of Jordan – also visited the ladies' lavatory. And there, in a cubicle, she spotted the bracelet, sparkling on the floor.
When I tracked down Mrs Khader, she told me: 'I got quite a shock. It's a bit embarrassing because you don't expect to find a priceless diamond bracelet at your feet in the loo.
'I realised straight away that it probably belonged to the queen, as she is famous for her wonderful jewellery. I picked it up and went over to her and asked “Is this yours?” '
Mariam's eyes lit up. 'It's worth £1 million', she was heard to remark.
And the generous reward offered by a woman whose former husband's fortune reached £65 billion at its peak?
'The queen gave her a hug and a kiss', I am told.”
Ms Aziz thought the article put her in a bad light, as supposedly having behaved in a way that was ungenerous towards the Claimant. The article gave the impression of having been instigated by the Claimant, not least because it contained a quotation attributed to her. The evidence shows that the Davenport Lyons retainer, to act on Ms Aziz' behalf in respect of her legal affairs, included general instructions to monitor media coverage about her and to take such steps as may be appropriate to protect her interests. This matter is addressed in the witness statements of Ms Aziz herself and of Mr Dowd. Accordingly, acting in his capacity as a solicitor representing Ms Aziz, Mr Dowd made contact with the publishers of the newspaper and, having been directed to the appropriate person, had a short conversation with a journalist called Helen Minsky who was apparently the author of the article. It is in respect of his activities in this connection that Mr Dowd finds himself the Second Defendant in the first action and Davenport Lyons and Mr Bateman have, more recently, been brought in as Defendants in the second action.
The first action concerns three alleged publications, for which primary responsibility is attributed to Mr Dowd. First, reliance is placed on words allegedly spoken by him in his telephone conversation with Ms Minsky (although it is not accepted that he actually spoke them).
The second publication relates to words allegedly spoken by Mr Dowd (or possibly others said to be acting on behalf of Ms Aziz) during another telephone conversation on the same day with a Mr Barry Hayes (or possibly others) at the Les Ambassadeurs club. In this instance, it is denied both by Mr Dowd and by Mr Hayes in evidence that any such conversation took place.
The third publication is said to be contained in a letter sent by Mr Dowd to Ms Minsky on or shortly after 13 April 2007. Mr Dowd denies sending any such letter and a third party disclosure order against Associated Newspapers Ltd has failed to yield any evidence that such a letter was received. The pleading fails to set out the words complained of in respect of this alleged publication and, argues Mr Eardley, this particular claim should be struck out for that reason alone. All that is said is that there was a letter “repeating or confirming by necessary implication the words complained of and reproaching Ms Minsky for repeating the said words to the Claimant”.
By applications dated 24 November 2008, both Defendants in the first action apply for summary judgment and/or for the claim to be struck out. It is said, in summary, that the Claimant has no reasonable grounds for seeking relief and/or that the claims are bound to fail and/or that the proceedings represent an abuse of the process. Similar relief is sought by the Defendants in the second action, although their primary case is that the claims are statute-barred.
As I have mentioned, there is also before me an application on the Claimant's behalf for permission to amend her particulars of claim. That is dated 5 May 2009.
The Claimant moreover applies for summary judgment, in certain respects, by an application notice of 12 May 2009. In particular, she wishes to argue that the defence of qualified privilege advanced on behalf of all Defendants is bound to fail and that the court should rule, at this stage, that the words complained of are false (for the purposes of the injurious falsehood claim).
The draft amended particulars of claim include seven causes of action founded upon defamation and injurious falsehood, together with the new claim for conspiracy. I shall return to these later, when addressing the Claimant's application for permission.
Meanwhile, I shall consider Mr Eardley's submissions on the original pleading in the first action. The submissions made on behalf of Mr Dowd and Ms Aziz largely overlap, although there are some different considerations which apply when one comes to the issues of qualified privilege and malice. It does not seem, however, that there is any conflict between Mr Dowd and Ms Aziz.
Mr Eardley argues that the Claimant has no realistic prospect of overcoming the defence of qualified privilege in respect of the first publication (i.e. the conversation between Mr Dowd and Ms Minsky) and no such prospect of establishing that he had any responsibility for the second and third publications alleged. As to injurious falsehood, it is further submitted that the Claimant's pleading discloses no basis for alleging malice. Alternatively, it is said that there is no prospect in the light of the evidence of ever establishing malice. Reliance is also placed on the...
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