Khashoggi v I.P.C. Magazines Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SLADE |
| Judgment Date | 10 October 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1010-2 |
| Docket Number | 86/0862 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 1986 |
and
[1986] EWCA Civ J1010-2
The Master Of The Rolls
(Sir John Donaldson)
Lord Justice Slade
86/0862
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
MR G. P. SHAW, instructed by Messrs William Charles Crocker, appeared for the Appellants (Defendants).
MR R. J. BUCKLEY, Q.C., and MR J. R. A. RAMPTON, instructed by Messrs Peter Carter-Ruck & Partners, appeared for the Respondent (Plaintiff).
This dispute between Mrs Khashoggi as plaintiff and I.P.C. Magazines Limited and Bridget Rowe as defendants has occupied a disproportionate amount of the time of the courts during the last week. It began on Monday or Tuesday with an application to Mr Justice Saville for an ex parte injunction restraining the publication of an article in Woman's Own misleadingly dated 11th October, although I hasten to add that it is a habit for weekly magazines to put a date for publication which seems to be quite a long time after the magazine is first on sale to the public. The plaintiff was seeking an ex parte injunction to restrain the publication of an article about her headed "What makes you divorce the richest man in the world" which related a somewhat highly-coloured account of her life with her husband before and after the dissolution of their marriage which certainly, read as a whole, is capable of carrying the meaning that she was a lady of considerable sexual enthusiasm. This is not the first time that this sort of allegation has been made against Mrs Khashoggi, and I shall have to mention that briefly in a moment.
In the previous week's issue of Woman's Own there had been a trailer foreshadowing the publication of this article, and that had caused Mrs Khashoggi to get in touch with I.P.C. Magazines and to explain in no uncertain terms that she objected to the publication of any such article and would take the necessary steps to prevent its publication. That led to a letter being written by Mr John Kensit, the legal adviser, to Mrs Khashoggi, saying: "Further to our telephone conversation this afternoon, I write to confirm that I am informed that we will not be publishing anything about you in Woman's Own next week that we are not able to justify." That letter was of crucial importance for this reason. Under the rule of law contained in Bonnard v Perryman (1891) 2 Ch at page 269 it is well-established that if a publisher is going to justify no interlocutory injunction will be granted, and it is a reasonable inference that, faced with that letter, Mrs Khashoggi was advised (if she was not advised she should have been) that she would have no chance of obtaining an ex parte interim injunction.
Thus nothing happened until earlier this week when she obtained a copy of the issue of 11th October, whereupon she read the following passage, which is quite a short passage, in the article, saying: "For Khashoggi" (meaning Mrs Khashoggi's husband) "the last straw was a report relayed to his London office by MI5, the British secret service, that Soraya was having an affair with his friend" the president of another nation. That is the passage which Mrs Khashoggi has pointed to as being defamatory of her. She makes no allegation that any of the rest of the article is defamatory about her, or if she does feel that way about it she is not making any legal complaint. However, she says that this allegaion is wholly untrue and completely defamatory, and on that basis she went to Mr Justice Saville.
What was said to Mr Justice Saville earlier this week by or on behalf of the defendants was, "We cannot plead justification, but, so far as any injunction is concerned, it is much too late now. All these copies of Woman's Own have already been distributed". That view prevailed with Mr Justice Saville. The matter then came before the Court of Appeal consisting of myself and Lord Justice Croom-Johnson, and we took the view that that was too simplistic an approach, because the only reason why it was too late, in the sense that the magazine had already been distributed, was that Mrs Khashoggi had been deterred from applying to the court for relief by the letter from Mr Kensit. Let me make it clear that I did not understand at the last hearing that an allegation of mala fides was being levelled at Mr Kensit. I now understand the word "lying" was used which would certainly carry with it an imputation of mala fides, but insofar as I appreciated that it had been said—and I am not sure that I did—I must merely have thought that it was forensic licence.
However, the nub of the matter, as I understood it, was that it was being said, and certainly it was my view, that this letter was written recklessly in the view of the fact that, by the time the matter came before this court and Woman's Own were for the first time represented, it was said that on the information then available to them they could not justify the allegation complained of. Both members of the court felt that in those circumstances, had Mrs Khashoggi been given her opportunity of applying to the court before publication, she would have succeeded in obtaining an injunction, and it was not right that Woman's Own should be able to take advantage of their own wrong and say, "It is now too late." That is not entirely a theoretical or impractical view, because although the magazine had been distributed it was probable that a number of copies had not yet gone the full length of the chain of distribution and would in practice be prevented from further circulation by our injunction. So it has proved, because today there is a complaint by the newspaper that they are liable to suffer damage to the tune of £150,000, which is not of course consistent with their having distributed all their magazines. I do not mean to say that they suggest that all the copies are still in their hands, but they rightly say that the distributors are withdrawing them and they will be returned.
We made that order, and leaving apart details such as security for the counter-undertaking and various visits to the court which there have been in that connection, the position changed when this morning the defendants applied to Sir Neil Lawson sitting as a judge in chambers to have the injunction discharged. He refused that application and they now appear before this court pursuing the same...
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