Lakah Group and Another v Al Jazeera Satellite Channel and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Gray,Mr Justice Gray |
| Judgment Date | 26 March 2003 |
| Judgment citation (vLex) | [2003] EWHC J0326-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2003 |
| Docket Number | Case No: IHQ/02/0232 |
[2003] EWHC J0326-2
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Gray
Case No: IHQ/02/0232
Miss Hilary HEILBRON, QC (instructed by DKLL Solicitors) for the Claimant
Mr Rupert ELLIOTT (instructed by Wiggin & Co) for the Defendant
Hearing dates: 10 March 2003
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.
On 14 January 2003 Al Jazeera Satellite Channel (to which I will refer throughout this judgment as "D1") and Mr Ahmed Mansour, the second Defendant ("D2") applied to the court for these libel proceedings brought against them by the Lakah Group as the first Claimant ("C1") and Mr Lakah as the second Claimant ("C2") to be dismissed on the ground that they constitute an abuse of the process. One matter relied on was the alleged failure of the Claimants to serve the claim form.
I did not deal with the Defendants' application on that occasion because Miss Heilbron QC, who now appears for the Claimants, applied successfully for an adjournment. The Defendants' summons had been served short and Miss Heilbron had not had sufficient time to prepare for what is factually a relatively complex case.
There was a further hearing before me on 21 January 2003. That hearing also had to be adjourned, this time because the Claimants asserted for the first time that the Claim form had been served and served evidence in support of that contention. The Defendants felt themselves unable to deal with the issue at such short notice. I granted their application for an adjournment. Today is the adjourned hearing of the application.
Before I come to the issues which the court has to decide today, it is necessary for me to set out the history of the proceedings to date.
C1 is an Egyptian company, of which C2 is the founder. The Defendants are respectively a satellite television broadcaster based in Qatar and a journalist working for D1.
The alleged libels on the Claimants were published on three occasions between 20 and 22 March 2002. The first publication took place on 20 March, when D2 interviewed C2 in a studio in London. That interview was broadcast live by D1 to its relatively small number of viewers within the jurisdiction and to the far larger audience elsewhere in the world. The broadcast was repeated in the two following days.
The Claimants' case is that the broadcast accused C1 of being involved in a corrupt relationship with the Egyptian Ministry of Health and its Minister and C2 of having bribed people in his constituency to vote for him.
On 27 March 2002, seven days after the programme was broadcast, the Claimants applied without notice to Pitchers J for an injunction restraining repetition. I shall have more to say later about the way in which that application was mounted and what happened or did not happen at the hearing. Pitchers J granted the injunction sought. He also made an Order for alternative service of the Order on the Defendants at a London address.
Shortly thereafter the Defendants applied to discharge the injunction on various grounds, including the ground that the English court had no jurisdiction. That application was heard by me on 23/24 May 2002. I discharged the injunction because the Defendants had potentially viable defences of justification and qualified privilege and because of the wide dissemination of the interview which had already taken place.
I also gave certain directions at the conclusion of the hearing. A Minute of Order including those directions was drawn up on behalf of the Defendants and sent to counsel for the Claimants in the usual way. I find that the draft Order accurately reflects the directions which I made. Nevertheless the Claimants refused to instruct counsel to sign the Minute of Order.
The Claim form had been issued on 28 March 2002. It was of course the obligation of the Claimants to effect service of the Claim Form on the Defendants. (It should be noted that whilst Pitchers J gave permission for alternative service of his Order, he did not make any such Order in regard of the Claim Form; nor was he asked to do so).
As I have indicated the Claimants' case at the beginning of the hearing was that they have already effected personal service on the Defendants within the jurisdiction. That is the first issue which I have to decide. If the Claimants are right about service, Mr Elliott has frankly indicated that he will wish to review the position in regard to his application to dismiss the action as an abuse. If the application to dismiss is not proceeded with, the case can proceed subject only to any application for a stay of the proceedings on the ground that England is not the forum conveniens for the resolution of this dispute.
But both Defendants dispute that they have been personally served. Their case is that they are resident outside the jurisdiction and that the Claimants should have taken steps to obtain permission to serve the Defendants outside the jurisdiction. In the alternative they could have sought permission for alternative service of the claim form.
But the Claimants did not apply for permission to serve out or for permission for alternative service. Instead they complained that the Defendants had breached the Order made by Pitchers J. That complaint culminated in an application to commit D2 and to sequestrate the assets of D1 for contempt of court. I need say little about the merits of that application, because they are fully and clearly considered by Eady J in his judgment on the contempt application given on 26 November 2002. He found that there had been a breach of the injunction in that the offending broadcast had continued to be available on the internet until 7 May 2002. But he accepted that this had been an oversight on the part of the Defendants.
Moreover it is abundantly clear from the judgment of Eady J that he was thoroughly unimpressed with the merits of the Claimants' application. In that connection I refer to, without repeating, paragraphs 15, 20–21, 30 and 36 of his judgment. Eady J ordered the Claimants to pay the costs of the contempt application on an indemnity basis and directed that the Claimants make an interim payment of £30,000 by 10 December 2002.
Another issue pursued by the Claimants in protracted correspondence from July 2002 until the end of the year related to the expert evidence as to Egyptian law provided on behalf of the Defendants by Prof. El-Awa. The suggestion made by the Claimants was that there were disquieting features about the production of his affidavit. Although the Claimants expressed their intention to raise this allegation on application to me, they did not in the event do so. It has now belatedly been made clear on behalf of the Claimants that they do not pursue any charge of impropriety against the Defendants or their legal advisers.
On 28 September 2002 the six months allowed by Part 7.5 for service of the Claim Form expired. The Defendants' solicitors pointed out that the Claimants were out of time and invited discontinuance.
It was against that background that the Defendants applied for the claim to be dismissed as an abuse. One of the grounds relied on in support of that application was that the Defendants were in continuing breach of the Order of Eady J to pay £30,000 costs of the failed contempt application by 10 December 2002. The Claimants eventually remedied that breach by belatedly paying that sum on 17 January 2003. They also paid interest on the overdue principal sum.
The Claimants oppose the application to dismiss the action. As I have said the Claimants at the outset of the hearing contended that valid service has been effected on both Defendants. In the alternative they cross-apply under Part 6.9 that service be dispensed with.
Before coming to the evidence as to service, I should record the submission of Mr Elliott for the Defendants that the Claimants' contention as to service, raised as it was for the first time in a witness statement served on 17 January 2003, should be regarded with the greatest possible suspicion. The delay, stretching as it does over a period of many months, is a remarkable feature of this litigation. But, if the Defendants or either of them has been validly served, the delay cannot assist the Defendants. I do, however, remind myself that the burden of proof as to service is upon the Claimants.
Mr Elliott also submits, citing the observation of Lord Goff at 481C of Spiliada v. Cansulex (1987) AC 460 to the effect that it is a very serious question whether the court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of having to contest his rights in this country. That observation was made in the context of applying for permission to serve outside the jurisdiction. That said, I accept that clear evidence is required if foreigners are to be held to be amenable to the jurisdiction of the courts of this country.
As to actual service, the position of the two Claimants has to be considered separately. I will therefore address first the question whether service of the Claim Form has been effected on D1, Al Jazeera Satellite Channel.
Ms Heilbron contends that valid service was effected on D1 either
i) when the Claim Form was served on Mr Fouda, or
ii) when on 28 March 2002, according to the witness statement of a process server, Mr Cobelli, documents including the Claim Form were left at 8 Ganton Street, London.
As to (i), the case for the Claimants is that Mr Fouda holds a senior...
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