Al-Koronky v Time Life Entertainment Group Ltd
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 29 July 2005 |
| Neutral Citation | [2005] EWHC 1688 (QB) |
| Docket Number | Case No: HQ04X02761 |
| Court | Queen's Bench Division |
| Date | 29 July 2005 |
[2005] EWHC 1688 (QB)
The Hon. Mr Justice Eady
Case No: HQ04X02761
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Geoffrey Shaw QC and Harvey Starte (instructed by Carter-Ruck) for the Claimants
Adrienne Page QC and Matthew Nicklin (instructed by Reynolds Porter Chamberlain) for the Defendants
Hearing dates: 7th, 12th, 13th and 26th July 2005
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.
Mr Justice Eady
Introduction
This is a troubling case. I am immediately concerned with an application by the Defendants in this libel action for security for costs but, in the course of the argument and evidence, serious allegations of dishonesty have been made on both sides. It is thus all the more important that I should draw back from determining the merits of the case, and in particular the merits of the defence of justification, on the basis of an incomplete picture. It is always tempting to try and find a short cut in what is bound, otherwise, to be very lengthy and expensive litigation, but it is very much the sort of case which can only be properly determined in the light of the impression made by witnesses and their evidence as tested in cross-examination. Also, expert evidence may have a significant role to play.
The Claimants are Abdel Mahmoud Al-Koronky, a former Sudanese ambassador and press attaché, and his wife Hanan Ibrahim Mohammed. They currently live in Sudan. Their claim is based upon the contents of a book published by the first Defendant, Time-Life Entertainment Group Ltd. It was co-authored by the second Defendant, Damien Lewis, and a Sudanese woman (not a party) who has been granted asylum here. Her name is Zainab Nazer, although she is generally known as "Mende". The work, which is entitled "Slave", purports to be an account of her life. The accuracy of its contents is hotly disputed.
The first part of the book sets out what is alleged to be Mende's life story, including an account of her abduction into slavery from her native village of Karko in the Nuba mountain region of Sudan. It is her case, adopted by the Defendants as being accurate, that in 1994 (when she is said to have been about 12 years old) she was captured by raiders and kept in slavery in Sudan until June 2000, when she arrived in London and worked for the Claimants in their London home—still in the capacity of a slave. It is part of her account that she escaped in September 2000 and has thereafter been at liberty, eventually being granted asylum in December 2002.
It is common ground that Mende left No. 6 Deerhurst Road, Willesden Green, London NW2, where the Claimants were then living, and applied immediately for asylum. On 17 th September of that year The Sunday Telegraph newspaper reported her departure as being the escape of a slave. This allegation led to the first Claimant, Mr Al-Koronky, suing The Sunday Telegraph, the claim form being issued on 1 st December 2000. The newspaper pleaded justification in February 2001, but the action was eventually settled on 26 th June 2002. The Defendants paid £100,000 damages and joined in the making of a statement in open court, withdrawing the offending allegations and apologising.
Meanwhile, between July and September 2001, Mende was working in Wiltshire with the second Defendant, Mr Lewis, preparing the book. It was published first in Germany in October 2002. It attracted a degree of publicity and the book itself describes how pressure then mounted on the British government to grant her asylum. Baroness Cox offered her "unstinting support".
In the first instance, on 17 th October 2002, Mende was refused asylum. Nevertheless, Baroness Cox led a lobbying campaign to persuade the government to reverse the decision. After reconsideration, asylum was duly granted on 23 rd December 2002. It was only a year later that the book was published in the United States, and publication within the United Kingdom followed in January 2004. In the meantime, the Claimants had left this country to return to Sudan, where they have been residing since July 2002. On their instructions a claim form was issued, and particulars of claim served, on 31 st August 2004.
The Claimants' defamatory meanings
It is unnecessary to rehearse lengthy passages from the book itself, but the words complained of are said to bear the following natural and ordinary meanings:
i) that the Claimants kept a slave, Mende Nazer, in their London home; and
ii) that the first Claimant made statements in open court which he knew to be false, to the effect that Mende Nazer was the Claimant's au pair and not their slave and that Mende Nazer's story of abduction and slavery in Sudan and then in London was a tissue of lies.
The reference to the "statements in open court" relates to the settlement of the Sunday Telegraph action in June 2002, to which I have referred.
The plea of justification
The defence in this action is dated 31 st January 2005 and, although no admissions are made as to the meaning of the words complained of, a plea of justification was entered to the Claimants' meanings. This is not a case where it is sought to plead justification to a lesser defamatory meaning. These Defendants are willing, if necessary, to justify the serious meanings cited above from the particulars of claim.
One complaint made by Miss Page QC on the Defendants' behalf is that the width of the Claimants' second defamatory meaning will inevitably extend the proceedings and make them significantly more expensive than is truly necessary. That is to say, the Claimants could have achieved their legitimate objectives of vindication and compensation without having included the final words ("… and that Mende Nazer's story of abduction and slavery in Sudan … was a tissue of lies"). Miss Page submits that this broad form of pleading for which the Claimants have opted makes it necessary for her clients to plead justification relating to Mende's life in Sudan between her supposed capture in 1994 and her departure for England in June 2000. The issues would have been considerably narrowed, she says, if the Claimants had chosen to confine the enquiry to what took place in London and the subsequent (allegedly false) statements made in open court about Mende's status over the short period between June and September 2000.
Mr Shaw QC, on the Claimants' behalf, does not accept this argument because he claims it is an essential step in establishing where the truth lies to investigate Mende's status over the intervening years. It is not Mende's account in the book, and it is not the Defendants' case in this litigation, that her role as a slave commenced only upon her arrival in England. They suggest that one of the main reasons why the Claimants went to such lengths to secure Mende's entry into this country (including, on the Defendants' case, a deliberate deception of the British government on her visa application form) is that they wanted not merely paid domestic help but an unpaid slave.
Be that as it may, there was no application for me to narrow the issues by, for example, striking out part of the Claimants' meaning paragraph. Indeed, Miss Page did not recognise that she would be permitted in law to make such an application. On the face of it, the Claimants are entitled to plead any defamatory meaning which the words are capable of bearing. Whether that is a correct analysis, in general terms, may not matter for present purposes, since no such application was notified to the Claimants or argued before me. Therefore I should proceed for the purposes of resolving the present issues on the basis that the extent of the enquiry will be as broad as that indicated in the plea of justification.
The Claimants' two submissions on security for costs
Mr Shaw makes the bold submission on the Claimants' behalf that no order for security should be made in the Defendants' favour at all, despite the Claimants' residence in Sudan, for two reasons. First, it is contended that the Defendants brought the litigation upon themselves by choosing to publish the book in the full knowledge of the earlier litigation against The Sunday Telegraph and the terms upon which it was settled. Secondly, I am invited to conclude on the evidence before the court that the defence of justification, for all its breadth, is bound or at least highly likely to fail. The submission is a surprising one in the light of the fact, to which I drew attention at the outset of this judgment, that much would apparently turn upon the impression ultimately made by the witnesses upon the fact-finding tribunal and how their totally conflicting stories stand up to the adversarial process of litigation.
The Claimants place much reliance upon certain documents which they submit demonstrate conclusively that Mende's claims to have been kept as a slave in Sudan, and later in England, are fundamentally dishonest. Why should she make it up? The Claimants' answer to that question is that she was motivated, and encouraged by a particular identified individual, to bolster her claim for asylum in this country. They say that Baroness Cox, and ultimately the authorities, were taken in by a tissue of lies.
Can the case be cut short by expert reports ?
Alternatively, Mr Shaw threw down the gauntlet by challenging the Defendants to agree to certain tests, by way of a short cut, which would supposedly demonstrate Mende's dishonesty authoritatively. Until such tests are carried out, Mr Shaw argued, and determined in...
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