Mr Bahram Noorani v Mr Richard Calver
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 17 March 2009 |
| Neutral Citation | [2009] EWHC 561 (QB) |
| Docket Number | Case No: 7LV90185 |
| Court | Queen's Bench Division |
| Date | 17 March 2009 |
[2009] EWHC 561 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
Queen Elizabeth II Court
Liverpool
Mr Justice Coulson
Case No: 7LV90185
No 1
Ms Lois Cole-Wilson (instructed by Kirwans) for the Claimant
Mr Jacob Dean (instructed by E. Rex Makin) for the Defendant
Hearing Date: 16.3.09
A. INTRODUCTION
At the material time the claimant was the deputy chairman of the West Kirby and Thurstaston branch of the Wirral West Conservative Association ("the Association"). The defendant was the Chairman of the Association and both were members of the Association's Executive Council. On 28 th June 2007, the defendant published a letter to the Secretary of the Association who, on his behalf, republished the same by e-mail to the Executive Council. There were approximately 25–30 recipients. The claimant complains that the letter was defamatory. The defendant denies that the letter contained the defamatory allegations complained of. The defendant also maintains that, if the words were defamatory, they were in any event true and/or the letter was protected by qualified privilege. In this context, the defendant denies malice.
In addition to the action in libel arising out of the letter of 28 th June referred to above, there is a separate slander allegation arising out of an alleged conversation between the defendant and the claimant's wife and teenage daughter in West Kirby on Tuesday 10 th July 2007. The defendant is alleged to have said, amongst other things, "No wonder you have depression, married to a Islamist terrorist. He is a refugee. He is a troublemaker. We should get rid of these people and rebuild the country". The defendant denies that this conversation ever took place.
In August 2008 the trial on these separate causes of action was fixed to start on 16 th March 2009, with witness statements being exchanged in November. Unhappily the statements were not exchanged until the middle of February 2009 and contained a good deal of irrelevant and inadmissible material. I have had to spend the PTR on the 12 th March, and all of yesterday, 16 th March, which was supposed to be the first day of the trial, dealing with numerous applications arising out of these witness statements. This Judgment relates just to one of those applications.
The defendant seeks to strike out the slander allegation, outlined in paragraph 2 above, on the grounds that:
a) In the circumstances in which they were allegedly said, the words complained of were vulgar abuse rather than words capable of being defamatory; and
b) The words do not allege the commission of a criminal offence punishable by imprisonment, and therefore are not words which are actionable without proof of special damage (which is not alleged here); or
c) Even if the hurdles at a) and b) above can be overcome by the claimant, the evidence does not reveal a real and substantial tort such that the proceedings do not serve the legitimate purpose of protecting the claimant's reputation and are an abuse of process.
I deal with one preliminary matter at Section B below. I then go on at Sections C, D and E to deal with the three matters of substance identified above. At Section F, I address briefly the potential relevance of the alleged conversation on the 10 th July to the issue of malice.
B. EVIDENCE OF DAMAGE
One of the points taken by Mr Dean on behalf of the defendant in his thorough skeleton argument provided for the PTR on 12 th March was that nowhere in the statements of the claimant's wife and daughter was there anything to say that the alleged slander had damaged the claimant's reputation in their eyes. As Mr Dean correctly pointed out at paragraph 27 of his skeleton:
"…neither says that she thought anything less of the claimant as a result, became worried about the fact that he might be a terrorist, took any steps to confront the claimant about the allegation (indeed Mrs Noorani did not mention it to her husband at first) or gave any store whatsoever to the abuse said to have been levelled at him. The evidence shows what is apparent from the context, that although the words were offensive, they were not capable of damaging the claimant's reputation. In those circumstances, the court should decide as a matter of law that the words are not capable of being defamatory and so are not actionable".
On Sunday 15 th March, further statements were obtained from the claimant's wife and daughter dealing with this very issue, in which there is now a suggestion that both women did potentially think less of the claimant. Ms Cole-Wilson, for the claimant, conceded that it was a fair inference that this new evidence was designed to plug the gap in the claimant's case which Mr Dean had revealed, in an attempt to avoid the slander claim being struck out. In my judgment, that concession is rightly made. This evidence can only have been triggered by the application by the defendant to strike out the slander allegation. In consequence I am naturally somewhat sceptical as to its authenticity, the point never having been raised before.
In addition, although the claimant's wife goes so far as to say that it went through her mind "that I should now not trust my husband and that everything that we had shared was false", I am bound to note that:
a) She says that she did not even tell her husband about the conversation for over 3 months;
b) She says that she did not know that her daughter had told her husband about the conversation;
c) She says that she only told her husband about the conversation when she saw a letter from his solicitors which dealt in detail with that conversation;
d) She does not explain how and why this evidence (which, if true, might be important), was nowhere hinted at in her original statement.
Accordingly, I must recognise that evidence to the damage, if any, done to the claimant's reputation by the alleged conversation in West Kirby is, at the very least, open to very serious doubt.
C. VULGAR ABUSE OR DEFAMATION?
It is trite law that "insults which do not diminish a man's standing among other people do not found an action in libel or slander": see Neill LJ in Berkoff v Burchill [1997] EMLR 139 at 146. The most authoritative guidance on the proper approach of the court can be found in the judgement of Eady J in Gillick v Brook Advisory Centres [2001] EWCA Civ 1263, cited by Lord Phillips as "an impeccable synthesis of the authorities in this area". Eady J summarised the position in this way:
"The proper role for the judge when adjudicating a question of this kind is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his or her own judgment in the light of the principles laid down in the authorities and without any of the former Order 18 Rule 19 overtones. If the judge decides that any pleaded meaning falls outside the permissible range, then it will be his duty to rule accordingly. In deciding whether words are capable of conveying a defamatory meaning, the court should reject those meanings which can only emerge as the produce of some strange or forced or utterly unreasonable interpretation. The purpose of the new rule is to enable the court to fix in advance the ground rules and permissible meaning which are of cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the claimant's reputation, but also for the purpose of evaluating any defences raised, in particular, justification and fair comment.
The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naive or unduly suspicious. They should be treated as being capable of reading between the lines, and engaging in some loose thinking but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task".
There is no doubt there can be many contexts in which describing someone as an Islamist terrorist is capable of being, and often will be, unarguably defamatory: see for example Associated Newspapers Limited v Burstein [2007] EWCA Civ 600 and Sheikh Khalid Bin Mahfouz v Jean-Charles Brisard [2006] EWHC 119 (QB). The question is whether, in the context of this case, the words allegedly used are capable of being defamatory.
I accept Mr Dean's submission that the context in which the words are said, or alleged to have been said, are important in considering whether those words are capable of being defamatory: see Nigel Smith v ADVFN...
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