Mir Shakil-ur-rahman v Ary Network Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 27 November 2015 |
| Neutral Citation | [2015] EWHC 2917 (QB) |
| Docket Number | Claim No HQ14D04351 |
| Court | Queen's Bench Division |
| Date | 27 November 2015 |
[2015] EWHC 2917 (QB)
The Hon. Mr Justice Haddon-Cave
Claim 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 Solicitors) for the Claimant
Jonathan Barnes (instructed by Gresham Legal) for the Defendants
Hearing dates: 1 st– 3 rd July 2015
INTRODUCTION
The Claimant claims in defamation in respect of 24 television broadcasts in Urdu of a programme called "Khara Sach". The Claimant also claims in respect of a television broadcast in Urdu of a short news piece. The broadcasts were filmed in Karachi and aired by the First Defendant in the UK between 25 th October 2013 and 8 th October 2014. The external broadcasts are said to have reached 200,000 people in the UK.
The Parties
The Claimant is a prominent media mogul in Pakistan. He is the Chief Executive and Chairman of the largest media group in Pakistan, the Jang Group of Companies ("Jang Group"), which includes Jang Publications Limited and GEO TV He is well known to the Pakistani community in England and Wales, in particular through the Daily Jang Newspaper, which has been published here since 1971.
The First Defendant is the licensee and operator of ARY News, a free-to-air television channel, broadcast throughout the UK on Sky (channel 882) and Virgin Media (channel 819) and by live on-line streaming on various websites. ARY News transmits the news and current affairs programme "Khara Sach" (which translates in English as "Pure Truth"). The anchorman of the programme is Mr Mubashar Luqman. " Khara Sach" is said to be the First Defendant's 'flagship' news and current affairs programme and is alleged to be broadcast to a substantial audience in England and Wales, comprising predominantly members of the British Pakistani community and those with an interest in Pakistani affairs. " Khara Sach" is alleged to be broadcast usually four times a week, with each episode being repeated three times a day on the day of broadcast.
The Second Defendant is Chief Operating Officer of the First Defendant and is alleged to have control over, inter alia, the selection of programmes and episodes broadcast by the First Defendant in England and Wales.
Preliminary issues ordered
On 29 th April 2015 and 22 nd June 2015, Mr Justice Warby ordered that preliminary issues be tried in this first trial of this matter limited to the following:
(1) the publication of the words complained of in Urdu;
(2) the literal translation of the words complained of into English;
(3) the meaning borne by the words complained of, including any innuendo meanings and the facts pleaded to support such innuendo meanings; and
(4) whether the words complained of are fact or opinion.
Mr Justice Warby specifically ordered that the issue of whether publication of the words complained of caused, or was likely to cause, serious harm within the meaning of s.1 of the Defamation Act 2013 should be excluded from the scope of the Preliminary Issues to be decided at the first trial (see his order of 22 nd June 2015 above). Given the large volume of broadcasts which are the subject of complaint, limiting the issues to be dealt in this way is, in my respectful view, clearly sensible and has made this first trial more manageable.
As a result of co-operation between the parties, there is no dispute as regards the first two preliminary issues i.e. issue (1) publication and issue (2) translation. The Defendants have admitted the broadcasts (save for those via Cinefun TV and YouTube which are no longer pursued by the Claimant). The Defendants have admitted the Claimant's translations save for the English translation of the episode of "Khara Sach" for 12 th May 2014 (referred to as "C19"); however, the Claimant eventually agreed the Defendants' translation and I ruled on 2 nd July 2015 that translation C19 could not be re-visited.
The Defendants have denied each of the Claimant's pleaded meanings and, in any event, contended that the words complained of comprised comment or opinion. Accordingly, the issues for determination at this first trial are (i) the meaning of the words complained of and (ii) whether they are fact or opinion.
Defamatory and other issues
The Defendants have not yet filed their substantive defence since the time for filing was postponed pending determination of the Preliminary Issues. The question of whether any of the words complained of are defamatory will be determined at a future trial. The broadcasts will, necessarily, have to be considered in two categories. First, the 13 broadcasts made after 1 st January 2014 will be considered under section 1(1) of the Defamation Act 2013 which provides that a statement is not defamatory "unless its publication has caused or is likely to cause serious harm to the reputation of the claimant". Second, the broadcasts made prior to 1 st January 2014 will fall to be considered under the 'old' law and the threshold of seriousness explained in Thornton v. Telegraph Media Group Ltd [2011] 1 WLR 1985 and Jameel (Yousef) v. Dow Jones & Co Inc [2005] QB 946. The Second Defendant has also raised an issue as to his legal responsibility for the broadcasts.
For the moment, I am simply determining the preliminary issues as to meaning and fact or opinion and I have put out of my mind all other questions.
THE LAW
General legal principles
The natural and ordinary meaning of words for the purposes of a defamation claim is the single meaning that would be conveyed by those words to the ordinary reasonable reader (see Slim v. Telegraph [1968] 2 QB 157 at 171–2).
The court's task in the artifice of arriving at a putative actual single meaning may involve an approximate centre-point in the range of possible meanings, or a dominant meaning for each broadcast ( per Longmore LJ in Cruddas v. Calvert [2013] EWCA 748 at [32]).
Conventionally, the question of whether words are defamatory is approached in two stages, by first identifying the single meaning which the words would convey to an ordinary reasonable reader (or listener) and then determining whether that meaning is defamatory ( per Warby J in Rufus v. Elliot, supra at [17] and see PD53 4.1).
The principles that apply to the determination of that single meaning are well established. I direct myself in accordance with the guidance of Sir Anthony Clarke MR in Jeynes v. News Magazines Limited [2008] EWCA Civ 130, [14] (citing authorities such as Skuse v. Granada Television Limited [1996] EMLR 278):
"(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any "bane and antidote" taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' ….
(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.'
There has been some useful elucidation of these principles in other authorities.
Principle (2) is descriptive of the hypothetical reasonable reader, rather than as a prescription of how such a reader should attribute meanings to words complained of as defamatory ( per Tugendhat J in McAlpine v. Bercow [2013] EWHC 1342 (QB) paras at 63 to 66, approved by Sharp LJ in Rufus v. Elliot [2015] EWCA Civ 121 at [11]). As Tugendhat J explained in McAlpine v. Bercow at [66]:
"If there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances. It would be unreasonable for a reader to be avid for scandal, and always to adopt a bad meaning where a non-defamatory meaning was available. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve."
As regards principle (3), the following statements help unpack the content of this briefly-stated but key principle:
(1) The exercise is one of impression ( per Warby J in Simpson v. MGN Limited [2015] EWHC 77 (QB). Judges should have regard to the impression the words have made on themselves in considering what impact it would have made on the hypothetical reasonable reader ( per Eady J in Gillick v. Brook Advisory Centres cited by the CA at [2001] EWCA Civ 1263 at [7]).
(2) The meaning of words is often a matter of subtlety, going well-beyond what they literally say ( per Warby J in Rufus v. Elliot [2015] EWHC 807 (QB) at [21]).
(3) The defamatory sting of words often lies not so much in what the words themselves say, but also "what the ordinary man will infer from them" ( per Lord Reid in Lewis v. Daily Telegraph [1964] AC 234, 358).
(4) In putting itself in the shoes of the...
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