Khalid Undre and Another v The London Borough of Harrow
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 26 April 2016 |
| Neutral Citation | [2016] EWHC 931 (QB) |
| Docket Number | Case No: HQ15D00037 |
| Court | Queen's Bench Division |
| Date | 26 April 2016 |
[2016] EWHC 931 (QB)
Mr Justice Warby
Case No: HQ15D00037
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Mason (instructed under the Bar Public Access scheme) for the Second Claimant
Adam Wolanski (instructed by BLM LLP) for the Defendant
Hearing dates: 18–19 April 2016
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.
This is the trial of preliminary issues in this libel action. The issues are whether the words complained of referred to and bore a defamatory meaning about the second claimant company and, if they did, whether they caused serious harm to its reputation within the meaning of s 1 of the Defamation Act 2013.
THE FACTUAL BACKGROUND
The first claimant, Mr Undre, is a restaurateur. He is described in the Particulars of Claim as the "owner" of a restaurant in Kensington High Street called "Down to Earth". This is described as a vegan and vegetarian restaurant. The restaurant was operated by a company owned by the first claimant, named Down to Earth (Kensington) Limited (DTE Kensington), until about 26 September 2013. At that time the first claimant caused DTE Kensington to enter voluntary liquidation. It proved to have a deficiency of some £500,000.
The business continued however, having been taken over by the similarly-named second claimant (DTE London), of which the first claimant is also the owner, and a director. DTE London has operated the restaurant since 26 September 2013, as lessee of the premises, the lessor being a friend of the first claimant.
The first claimant owns some farmland in Harrow, which he bought in 2011. During the winter of 2012–2013 he was keeping 20 cows on that land. The defendant is a London Borough Council responsible for, among other things, enforcement of the animal welfare legislation within its boundaries. The defendant prosecuted the first claimant in the Willesden Magistrates Court, alleging that in January and February 2013 he neglected the welfare of his cows. He was tried before District Judge Jabbitt on six counts over two days, on 26 and 27 November 2013. The District Judge reserved judgment. On 20 December 2013 he handed down a detailed 76-paragraph written decision. This acquitted the first claimant on one count but convicted him on each of the other five.
The offences of which the first claimant was convicted were: (1) failing without lawful authority or reasonable excuse to ensure that the cattle owned by him were fed a wholesome diet; (2) failing to take reasonable steps to ensure the cattle were fed at intervals appropriate to their psychological needs; (3) failing to take reasonable steps to ensure all had access to a suitable water supply and were provided with adequate fresh drinking water each day or were able to satisfy their fluid intake by other means; (4) failing to ensure all animals on his holding born after 31 December 1997 were identified by an ear tag; and (5) failing to dispose without undue delay of a cattle carcass. The first three offences were contrary to the Welfare of Farm Animals (England) Regulations 2007. The others were contraventions of the Cattle Identification Regulations 2007 and the Animal By-Products (Enforcement) (England) Regulations 2011 respectively.
The District Judge was sure that the first claimant was guilty of "significant underfeeding over at least several weeks". He found that "his enthusiasm for looking after the herd particularly in the bad weather had waned" such that "only once was water seen at the site". He considered the first claimant's failure promptly to dispose of a carcass to be "symptomatic of his approach to the herd" evidenced by, among other things, the fact "that he did not provide them with adequate food or water." Overall, his conclusion was that "The herd suffered, particularly the cows that were pregnant or had recently given birth." After hearing mitigation, the District Judge sentenced the first claimant to a community order of 12 months, with a requirement to complete 120 hours of unpaid work.
On 7 January 2014 the defendant placed a news release about the matter on its website, containing the following words (the numbering has been added by me):-
"[1] A restaurateur whose neglect led to the deaths of three cows at a Harrow farm has been convicted of mistreating his animals and sentenced to community service.
[2] Khalid Undre, 50, of Kenton, who owned vegetarian restaurant Down to Earth, kept a herd of cows in freezing conditions, with too little to eat and drink.
[3] Pursuing a tip-off in January last year, Environmental Health Inspectors found Mr Undre's cattle exposed in a field in sub-zero conditions. Many were underweight.
[4] One of the cows lay dead in the heavy snow, having given birth without help. Another cow and its calf died later.
[5] Undre pleaded not guilty but was convicted of five charges at Willesden Magistrates Court on 20 December. After pleading poverty, he was sentenced to 120 hours of community work, and ordered to contribute towards prosecution costs.
[6] Mr Undre owned the Down to Earth restaurant on Kensington High Street, which calls itself "environmentally sound, sustainable and animal friendly" and claims to sell "sustainable and ethical organic lifestyle products". A plate of scrambled eggs cost £7.50. while a "raw food" vegan terrine costs £8.50
[7] The restaurant claims that "by-products from our kitchen go to feed the cows in our Harrow farm.
[8] Cllr Susan Hall, Leader of Harrow Council, said: "This was an appalling offence of animal cruelty, made all the more grotesque by the cynical way in which this man paraded himself as a champion of ethical food standards.
[9] Our officers work extremely hard to prosecute these complex cases, and it is down to their hard work that these animals' suffering is over and their owner brought to justice."
A document disclosed by the defendant at a late stage shows that it created, and may also have issued, a news release in a different form, by some means other than via the website. This document contains all the words that I have just quoted, but they are followed by some "notes to editors." The document is headed "For immediate release, January 7 th 2014." It looks like the kind of press release that is circulated on paper and/or by email. However, I have no other evidence about this document. Mr Mason, Counsel for the second claimant, thought about but in the end did not pursue an application to amend to embrace a claim in respect of this document. The issues before me therefore relate only to the website publication of the news release, and its consequences.
Complaint about that publication was first made on 19 March 2014, when the first claimant complained by means of a letter from Mr Mason, who represents the claimants as their public access barrister. The core of the complaint put forward was that the news release had falsely stated that the first claimant's neglect had led to the deaths of three cows, when no such finding had been made. It was said that the Mail Online and the Evening Standard had "used this false information to publish further articles causing further harm". The letter asserted that "This untrue information published on your website has caused and is causing Mr Undre considerable financial loss." There was no mention then of the second claimant.
On 27 March 2014 the defendant responded, in a letter from Ms Wilson of its legal department. This asserted that the first claimant had "no claim in defamation" as the news release was true in its substance, and the comments of Cllr Hall were based on true facts. It also said it was difficult to understand how the news release could have caused the first claimant any financial loss, given what had been stated in mitigation before the District Judge. This was said to be "that the matter had received negative publicity and resulted in Mr Undre's restaurant business suffering hugely to such an extent that it is now in liquidation, resulting in the loss of £500,000." The text on the Council's website was however changed at this point, in what was described by Ms Wilson as "a gesture of goodwill". Paragraph [1] was altered to read "The owner of a Kensington vegetarian restaurant, who neglected his cows at a Harrow farm, three of whom died, has been convicted of mistreating his animals and sentenced to community service."
There was a small amount of further correspondence, which continued to advance a claim on behalf of the first claimant only. The present proceedings were issued on 6 January 2015, just before the expiry of the limitation period. The claim form was issued on behalf of both claimants, accompanied by Particulars of Claim. These identified the words complained of as those in paragraph [1] of the news release, in its original form. There is no complaint of the website publication as altered in March 2014, as the first claimant confirmed in his evidence to me. The Particulars of Claim complained in paragraph 3 that the words complained of were defamatory of the first claimant; in paragraph 4, that they bore the natural and ordinary meaning "that the first claimant's neglect caused the death of the three cows"; and in paragraph 5(a), that by reason of the publication of those words the first claimant's reputation had been seriously damaged. The first claimant's claim has been the subject of an offer of amends, which he has accepted. The remedies have yet to be agreed or determined.
Paragraph 3 of the Particulars of Claim also alleged that the words...
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