Mir Shakil-Ur-Rahman v ARY Network Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 02 December 2016 |
| Neutral Citation | [2016] EWHC 3110 (QB) |
| Docket Number | Case No: HQ14D04351 |
| Court | Queen's Bench Division |
| Date | 02 December 2016 |
[2016] EWHC 3110 (QB)
Sir David Eady
Sitting as a High Court Judge
Case No: HQ14D04351
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Nicklin QC and Richard Munden (instructed by Carter-Ruck) for the Claimant
Desmond Browne QC and Jonathan Barnes (instructed by Gresham Legal) for the Defendants
Hearing dates: 1, 2, 3 and 7 November 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.
The parties
The Claimant is the Group Chief Executive and Editor in Chief of the Jang group of companies, which is the largest media group in Pakistan and which operates also in the United Kingdom through two UK companies Jang Publications Ltd and GEO TV Ltd (of which the Claimant is chairman). His family connection with this jurisdiction goes back to 1971, when his father Mir Khalil-ur-Rahman launched the first South Asian newspaper here, the Daily Jang, which remains the highest circulation Urdu newspaper in the UK today. Its website attracts some five million visitors each month from within the UK. He is determined to carry forward his father's legacy and is well known in Pakistan and among Urdu speakers here. Since about 2008, he and his family have been based in Dubai for security reasons, not least because of hostility towards him in certain quarters in Pakistan. Nonetheless, he told me in evidence that he is loyal to Pakistan which he regards as "the home of his heart".
The first Defendant is a UK company which also broadcasts in the Urdu language via three channels throughout the UK and is licensed by OFCOM. For the most part, it echoes the content from ARY channels originating in Pakistan, but is nonetheless responsible for what it broadcasts here. The second Defendant is the Chief Operating Officer: he oversees all operational aspects of the business in this jurisdiction and all employees report to him. It is fair to describe the ARY group generally as a commercial rival of the Jang and GEO group, including in relation to Urdu broadcasting in the United Kingdom.
One of the Defendants' channels is ARY News, which transmitted a current affairs programme between August 2012 and May 2015 called Khara Sach. It was broadcast three times a day from Monday to Thursday with audiences in the tens of thousands. The "anchor man" or main protagonist of those programmes was Mr Mubashar Luqman, who is not a party to these proceedings in England.
The nature of the claim
The complaint is that over a twelve month period from October 2013 the Defendants mounted a "campaign" of abuse and defamation against the Claimant. He therefore brings claims both in defamation (24 programmes) and harassment (more than 100 programmes). It is also said that the campaign has continued beyond that period and, by way of example, my attention was drawn to further allegations of treachery in The Reporter for 21 March 2016 and in two programmes broadcast on 16 August of this year. I am grateful to counsel for their industry and for their skill in handling and presenting this material for the purposes of the trial.
There is considerable overlap between the two causes of action, not least because each of the 24 programmes relied upon for the defamation claims is also prayed in aid as an instance of harassment. There is no doubt that the Claimant was singled out for persistent abuse and ridicule over a year long period. The programme was addressed to him personally. He was regularly taunted by the presence of an empty chair, the purpose of which was to suggest that he was afraid to come and defend himself against any of the allegations being made. (That is an accusation that could hardly be maintained any longer, since in these proceedings he afforded the Defendants every opportunity to put their charges to him – in circumstances where he would be given a fair hearing and an opportunity to respond.) He was also patronised by the use of the title Baba Ji. This was explained by Mr Luqman during the programme of 16 December 2013. He said that he could not bring himself to use the name Rahman because of its sacred connotations. These are some of the facts which led his advisers to add the claim in harassment.
Mr Nicklin QC described him as being targeted by the programme makers, and by the Defendants who broadcast the content in England and Wales, and must have realised that it was calculated to incite hatred towards him. He characterised the treatment of his client as "nasty, deliberate, relentless and oppressive".
Mr Browne QC pointed out that these proceedings were launched on 23 October 2014, when nearly a year had elapsed from the first of the offending broadcasts, and the particulars of claim were not served until February 2015. There had been libel claims in Pakistan before that, however, on behalf of two Jang group companies in relation to publication both in Pakistan and internationally. Another libel claim was commenced in Pakistan on 8 March 2014 to which the Claimant himself was a party. There had also been complaints to OFCOM specifically about the broadcasts in the United Kingdom (including on behalf of this Claimant personally). The Claimant says in paragraph 16 of his witness statement that he became concerned about the allegations in England after his family and friends called him and informed him of the extent of the damage caused there. But that was in October 2013 and, although a letter of complaint was sent to these Defendants on 28 October which met with no response, there was clearly a long delay before proceedings here were actually begun. I am not sure what significance I am meant to attach to this, but I see no reason to draw the inference that he was unconcerned about the impact on his reputation in England. He plainly was.
Harm, damage and causation
In November 2015, Haddon-Cave J ruled in a detailed and lengthy judgment on the relevant "single meanings" attributable to each of the programmes, and also identified which words or passages could be characterised as comment and which as fact. That judgment has not been appealed. On 25 October this year, less than a week before the date set for trial, I struck out defences of justification/truth and also of fair comment/honest opinion. Some of the broadcasts took place before the Defamation Act 2013 came into effect on 1 January 2014, and some afterwards. I was then invited by Mr Nicklin, for the Claimant, to rule on the first day of the trial that those publications that took place after 1 January 2014 passed the threshold test set out in s.1 of the Act; that is to say, that the words complained of had caused or were likely to cause "serious harm" to his reputation. The burden of proof under the new provisions lies upon the Claimant. Mr Nicklin, although he also adduced evidence on the subject of harm once the trial began, asked me at the outset to draw an inference from the gravity of the allegations themselves, and from the scale of publication, to the effect that serious harm must indeed have been caused. I did so without difficulty.
Mr Browne, for the Defendants, was minded to submit that the claims in relation to those programmes broadcast before the critical date were liable to be struck out under the Jameel abuse doctrine: see Jameel (Yousef) v Dow Jones Inc [2005] QB 946. He wanted to argue that the publications could not have caused any significant harm to the Claimant's reputation in the light of a number of factors which were much more likely to have done so and, correspondingly, that any distress and hurt feelings which he was seeking to attribute to the broadcasts could be accounted for in the same way. Hence, much of his cross-examination was directed to exploring other publications, in other parts of the world and particularly in Pakistan, which were supposed to have done the damage. The exercise was difficult to follow in some respects as Mr Browne sought to explain it purely in terms of "causation". He wanted the court to find that both injury to reputation and distress, if they occurred at all in this jurisdiction, were brought about by these extraneous factors rather than by the offending broadcasts.
It seemed to me at first, however, that the real objective was to establish that the Claimant's reputation, here and elsewhere, was so poor that any additional harm occasioned by the broadcasts could be discounted. Once it is acknowledged that a defendant is seeking to mitigate the effect of his own conduct by establishing a general bad reputation on the part of the claimant, or at least one that has been tarnished, then there are certain well established constraining principles that come into play.
It is not permitted, first of all, to introduce damaging publications by others: Dingle v Associated Newspapers Ltd [1964] AC 371. Secondly, a defendant cannot rely on individual acts, or instances of conduct, on the claimant's part by way of mitigating damage (as opposed to evidence of general bad reputation): Scott v Sampson (1881–82) LR QBD 491. (There was a recommendation in the report of the Neill Committee in July 1991 that this rule should be abolished, but it was decided in the legislature that the restriction should be retained, largely because it was feared that such a reform might introduce "a muckraker's charter".)
Thirdly, if a plea of truth/justification has been pursued at trial, albeit unsuccessfully, then because that evidence is legitimately before the court for that reason, it can be relied upon also in the context of evaluating the claimant's reputation when assessing compensation:...
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