Khader v Lyons and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,President of the Queen's Bench Division,Lord Justice Carnwath,Lord Justice Moore-Bick |
| Judgment Date | 23 June 2010 |
| Neutral Citation | [2009] EWCA Civ 1453,[2010] EWCA Civ 716 |
| Docket Number | Case No: A2/2009/1831/2,Case No: A2/2009/1831 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 2010 |
[2009] EWCA Civ 1453
(Mr Justice Eady)
Before: Lord Justice Waller
Case No: A2/2009/1831
A2/2009/1832
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
Mr A Veen (instructed under the Direct Access scheme) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
Lord Justice Waller:
This is an application for permission to appeal a decision of Eady J in which he struck out two actions. The first is an action which the claimant has brought against Mariam Aziz and a solicitor called Matthew Dowd. The second commenced some time later, which the claimant seeks to bring against Davenport Lyons and Mark Bateman. So far as the first action is concerned, as I indicated at the commencement of Mr Veen's arguments today, it seems to me that there is at least an arguable point to put before the Court of Appeal relating to what the judge really described as the first publication. That related to a conversation which Mr Dowd had with a Miss Minsky on 12 April 2007. In essence, the argument at a trial would be whether there was qualified privilege for that communication. And although there was prima facie qualified privilege, the question will be whether Mr Dowd went beyond his retainer or whether he acted maliciously. As it seems to me, it is at least arguable that it was inherent in the words themselves that there was malice, and I would thus allow that aspect to go the Court of Appeal.
So far as the second two publications were concerned, I made clear that I needed some convincing. I am still unconvinced that there is any arguable point in relation to the third publication, which the judge struck out because there simply was, and as he saw it never could be, evidence of a letter in which a defamatory statement was made. The second publication is more difficult. What is suggested is that there was a repetition of the statement made to Miss Minsky through a man called Barry Hayes and the reason the judge struck that out was that he was saying that the judge said at paragraph 27 that Mr Dowd denied making the statement to Mr Hayes, and also that Mr Hayes was saying that no statement was made to him, and the judge simply thereafter stated that since the claimant had not put any further evidence in, it was reasonable to conclude that there was no real prospect of overcoming this evidence.
I have been persuaded that there perhaps is more to this allegation than the way that the judge has put it, in that what Mr Veen is suggesting is that there is some evidence that what was said in the defamatory statement reached other people within the club. He also says that it must be remembered that Mr Dowd denied making the first publication, but there is now evidence that he did and thus his credibility is in doubt, and he suggests that Mr Hayes' credibility is also in doubt. For those reasons, it seems to me again that that is an aspect which should be considered by the Court of Appeal.
If the parts of the action remain, there will be a question about whether leave should be given for the new Particulars of Claim for which leave to amend was sought to be amended in the form which now appears in the bundle at page 167. The judge said that he would not have granted permission in the form that those Particulars were in because they were prolix, never mind whether he had struck out the action on the basis that he did. There seems to me to be force in the judge's criticism of the prolixity, but the question must still remain for the Court of Appeal as to the way in which the Particulars of Claim should be addressed if the other points were ones which the court found meritorious.
The next question is whether the second action should be allowed to continue. The point there is completely different. It is a limitation point. That action was started way outside the limitation period, so if the claimant is to be entitled to pursue that action, she would have to bring herself within section 32 of the Limitation Act 1980, and the relevant provision of that section is that:
“…where in the case of any action for which a period of limitation is prescribed by this Act…
…
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant …”,
then the limitation period does not run until that fact has been discovered.
The judge dealt with this matter fairly shortly. What he said in paragraph 60 of his judgment was there is no evidence of any material concealment. He said at paragraph 81 that the claimant knew from the outset that Mr Dowd was employed by Davenport Lyons. Furthermore, she agrees with established reasonably diligence that the party responsible was Mr Bateman What is more, it is possible to see his initials appearing on some of the correspondence. As I understand it, he could have gone one further from what I have been told today, which is that, in addition to the initials appearing on the correspondence from time to time, prior to the limitation period actually expiring the claimant was told that Mr Bateman was involved.
Mr Veen has done his best to explain ways in which the claimant could not have been aware that Mr Bateman was acting, but as it seems to me that is really besides the point at the end of the day, because what would have to be established is that there was deliberate concealment by Mr Bateman and Davenport Lyons of the roles that they took, and as I would see it there is simply no prospect of the Court of Appeal reversing the judge's judgment on that aspect, so that the second action must remain struck out.
One other thing to make clear is the order in the court below made an order in relation to privacy. There is an annexe to that order which identifies certain confidential issues. The claimant wishes to take that matter to the Court of Appeal, and it seems to me right that he should be allowed to do so. But in the meanwhile, the order made by the judge providing for confidentiality should be maintained in the form that he made it.
Three hours for the hearing, and it needs three judges, one of whom can be a High Court Judge.
Order: Application granted in Part.
[2010] EWCA Civ 716
Before:president Of The Queen's Bench Division
Lord Justice Carnwath
and
Lord Justice Moore-bick
MR JUSTICE EADY
Case No: A2/2009/1831/2
HQ08X01338
IN THE HIGH COURT OF JUSTICE
COURT oF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Andrew Veen and Arfan Khan (instructed by Simons Muirhead & Burton) for the Appellant Heather Rogers QC (instructed by Davenport Lyons) for the FirstRespondentsAiden Eardley (instructed by Davenport Lyons) for the Respondents
Hearing dates: 19 th May 2010
Approved Judgment
President of the Queen's Bench Division:
Introduction:
These proceedings arise out of an article in the Daily Mail of 12 th April 2007 under the heading “How Queen Mariam spent a penny and lost a fortune”. The woman there referred to is the first respondent, Mariam Aziz, the former wife of the Sultan of Brunei. The article related how she had accidentally dropped a £1m. diamond bracelet in the ladies’ lavatory of Les Ambassadeurs club in Mayfair. The bracelet was found in the lavatory by Leila Khader, the appellant, described in the article as a one-time friend of the late King Hussein of Jordan, who describes herself as an international society figure and business woman. The article related that the appellant returned the bracelet to Ms Aziz and it ended with the words “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 was aggrieved by the article, feeling that it put her in a bad light for having behaved ungenerously towards the finder of a very valuable bracelet. The article gave the impression of having derived from information provided by the appellant, not least because it contained a quotation attributed to her.
The second respondent, Mr Dowd, was at the time an associate solicitor with Ms Aziz’ solicitors, Davenport Lyons. The firm has a retainer from Ms Aziz to act for her, which the respondents say includes general instructions to monitor media coverage about her and to take such steps as may be appropriate to protect her interests. As a result, Mr Dowd, acting in his capacity as Ms Aziz’ solicitor made contact with Associated Newspapers Limited, the publishers of the Daily Mail, and had a short conversation with Ms Minsky, the journalist who wrote the article.
The proceedings
In a first action brought by the appellant on 8 th April 2008, the appellant alleged that three publications, for which Mr Dowd was primarily responsible, were defamatory of her. The first publication related to the conversation which Mr Dowd had with Ms Minsky on 12 th April 2007. In this conversation, he is alleged to have said:
“Leila Khader is a disreputable person and a liar. You should not rely on her words because they are false and she has acted in cahoots with some other persons to pretend that a diamond bracelet had been found and was being returned to Mariam Aziz in order to embezzle money from Mariam Aziz.”
Mr Dowd accepts that he had a conversation with Ms Minsky, but denies that he spoke these...
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