Murtaza Ali Shah v Mohammad Imran
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWHC 120 (KB) |
| Docket Number | Case No: QB-2021-001140 |
| Court | King's Bench Division |
[2023] EWHC 120 (KB)
THE HON. Mrs Justice Steyn DBE
Case No: QB-2021-001140
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Jacob Dean (instructed by Stone White Solicitors) for the Claimant
The Defendants appeared in person
Hearing dates: 16 January 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 26 January 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
This claim for defamation arises from six publications, namely, (i) a petition which was first published by the First Defendant on the Change.org website on 30 March 2020 (‘the Petition’); (ii) a video which was published by the First defendant on YouTube and Facebook on 31 March 2020 (‘D1's First Video’); (iii) a video which was published by the First Defendant on YouTube and Facebook on 29 April 2020 (‘D1's Second Video’); (iv) a Tweet published by the Second Defendant on 18 April 2020, quote tweeting Saif Chaudhury (‘D2's first Tweet’); (v) a Tweet, also published by the Second defendant on 18 April 2020, quote tweeting Faisal Khwaja (‘D2's second Tweet’); and (vi) a video which was published by the Third Defendant on Facebook on 20 April 2020 (‘D3's video’). The Petition and two Tweets were in English; the three videos were in Urdu.
I have set out the publications or, in the case of the videos, the English translation of the transcripts of the publications, in the Appendix to this judgment.
The Claimant describes himself as a Pakistani journalist resident in London, and as the UK and Europe Bureau Chief for the Pakistani television channel Geo News and the Jang Group of newspapers. The Defendants describe themselves as political activists. At the time of the publications, the First, Second and Third Defendants held the positions, respectively, of President, General Secretary and Additional General Secretary in the North West UK regional chapter of Pakistan Tehreek-e-Insaaf (‘PTI’), the political party which was led, at the time of the publications, by the (then) Prime Minister of Pakistan, Imran Khan.
This judgment follows a trial of three preliminary issues, identified in the order of Master Eastman dated 16 June 2022 in the following terms:
“(a) the meanings of each of the publications complained of;
(b) whether each of those meanings is a statement of fact or a statement of opinion; and
(c) whether each of those meanings is defamatory of the Claimant at common law.”
The Claimant was represented by Counsel, Mr Jacob Dean. The Defendants represented themselves. At their request, and with my permission, with Ms Saddique taking the leading role in making oral submissions on behalf of all three Defendants, supplemented by oral submissions made by Mr Imran, (at their request and with my permission).
I adopted the standard preparatory approach to the determination of meaning in a defamation claim of viewing/reading the material complained of, and forming a provisional view about its meaning, before considering the parties' pleaded cases and arguments about meaning.
As in Shakil-ur-Rahman v ARY Network Limited [2015] EWHC 2917 (QB), the task of forming an initial impression of the videos was made more challenging by the fact that they were broadcast in Urdu. The parties have agreed transcripts of the words spoken, and English translations of those transcripts. In this case, in respect of each video, I first watched it once through, to get an impression of genre and tone, and a clear view of the video images, then read the relevant translation, before watching the video again with the translation to hand, to get an overall impression of meaning. I have sought to avoid an over-literal approach but, as Haddon-Cave J observed in Shakil-Ur-Rahman, I have necessarily had to approach the task of ascertaining the meaning of the videos through the filters of, first, a transcript of what was said orally, and secondly, a translation of that transcript. I did not have the benefit of gaining the immediate impression which the words spoken would have had on the hypothetical viewer of the videos, who would have understood Urdu.
B. The Pleadings and Meaning Documents
The Claim Form was issued on 29 March 2021. Particulars of Claim were served on the Defendants on 19 July 2021. The Claimant has pleaded the meanings he relies on, and asserts that the statements complained of are statements of fact, and they are defamatory at common law.
On 3 September 2021, the Defendants filed a Defence. In the Defence, the Defendants denied the Claimant's meanings reflect the natural and ordinary meanings of the words complained of, but did not plead what the Defendants assert the meanings to be.
When setting down these preliminary issues for trial, by an order dated 16 June 2022, Master Eastman required each Defendant, not less than 28 days before the trial of the preliminary issues, to serve a document on the Claimant
“stating clearly, in relation to each of the publications complained of in the Particulars of Claim, the Defendant's case as to the following issues
a. the meaning which the Defendant contends the publication bears;
b. whether the Defendant contends that the publication contains an allegation of fact or an expression of opinion; and
whether the Defendant contends that the publication is or is not defamatory at common law.”
Each Defendant served a document but it is evident that they did not understand what was required of them and, consequently, those documents only partially comply with the order. In particular, the position remains that none of the Defendants have pleaded the meaning that they contend any of the publications bear, although they maintain their denial of the meanings pleaded by the Claimants. It is, however, clear that they contend the publications contain statements of opinion and that they are not defamatory at common law.
I sought to explore with the Defendants during the hearing the meanings that they contend the publications bear. However, to a large extent their submissions addressed matters such as what they had intended, what viewers/readers had in fact understood the publications to mean, and evidence of surrounding matters, all of which is inadmissible.
C. The Law
There was no dispute as to the law and the applicable principles are well established. Nevertheless, to assist the unrepresented Defendants, Mr Dean referred to the authorities I have set out below in some detail at the outset of the hearing.
Ascertainment of meaning — general principles
The Court's task is to determine the single natural and ordinary meaning of the words complained of. The focus is on what the hypothetical ordinary reasonable reader of the Petition and Tweets, or viewer of the videos, would consider the words to mean. That is the touchstone. The Court must avoid undertaking a lawyerly analysis.
The key principles derived from the authorities were helpfully distilled and re-stated by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25 at [12] (and approved by Warby LJ in Millett v Corbyn [2021] EWCA Civ 567, [2021] EMLR 19, [8]):
“i) The governing principle is reasonableness.
ii) The intention of the publisher is irrelevant.
iii) 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. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues' gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
xii) Judges should have regard to the impression the article has made...
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