Qatar Airways Group Q.C.S.C. v Middle East News FZ LLC
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] EWHC 2975 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2018-000981 |
| Date | 06 November 2020 |
[2020] EWHC 2975 (QB)
THE HONOURABLE Mr Justice Saini
Case No: QB-2018-000981
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Thomas Raphael QC and Sam Goodman (instructed by Osborne Clarke LLP) for the Claimant
Antony White QC and Edward Craven (instructed by Wiggin LLP) for the Defendants
Hearing dates: 14 – 16 October 2020
This judgment is in 12 main parts as follows:
| I. Overview — | paras. [1–33] |
| II. Factual Background — | paras. [34–47] |
| III. International Aviation Law — | paras. [48–61] |
| IV. The Video: Meaning and Falsity— | paras. [62–88] |
| V. Publication — | paras. [89–101] |
| VI. Loss — | paras. [102–115] |
| VII. The Defendants — | paras. [116–136] |
| VIII. Serious Issue to be Tried – | paras. [137–318] |
| IX. The Service Gateways – | paras. [319–346] |
| X. Forum Conveniens – | paras. [347–381] |
| XI. Full and Frank Disclosure— | paras. [382–407] |
| XII. Conclusion — | paras. [408–409]. |
| Annexe A: The Video |
I. Overview
This is a jurisdiction challenge. The context in which the proceedings arise is the economic blockade (the “Blockade”) imposed upon Qatar in June 2017 by Saudi Arabia, the United Arab Emirates (“UAE”), Bahrain and Egypt (together, the “Blockade States”).
The Blockade involved these states cutting off all relationships with Qatar and the imposition of a land, sea and air blockade upon Qatar. The air blockade is the focus of these proceedings. In broad terms, by that measure the Blockade States sought to prevent Qatari registered aircraft from traversing their territorial airspace, although they were permitted to fly in and out of Qatar via permitted air corridors.
The Claimant (“QAG”) owns and operates Qatar's flag air carrier, the well-known international airline Qatar Airways. The Defendants are said by QAG to be connected with the Arabic news channel Al Arabiya. The nature of such connections is one of the issues before me.
QAG also argues that Al Arabiya is closely connected to, and controlled by, the Saudi royal family and government. QAG says that in the context of the Gulf crisis, Al Arabiya serves the political purposes of the Blockade States.
On 9 August 2017, Al Arabiya made a live TV broadcast of a short 2 minute animated film concerning the air blockade (the “Video”). The Video was also made available internationally through its own website, YouTube, and social media channels. These transmissions of the Video give rise to the proceedings.
I will need to consider the nature and contents of the Video in more detail. I have appended to this judgment as Annexe I a frame by frame screen-shot version of the Video with subtitles, as published on the Al Arabiya website, and on Al Arabiya's YouTube, Twitter and Facebook channels.
Although reading that Annexe is not a substitute for the way in which the Video would have presented itself visually to a viewer, it provides a reader of this judgment with the basic textual and visual content.
QAG's case is that the Video was, intentionally and foreseeably, damaging to QAG because it deliberately conveyed false and misleading messages (using what it argues were several false and misleading statements). In summary, it says the nub of the falsity was that even though QAG flights would be lawfully passing along permitted air corridors, there was a real danger that QAG flights in the Middle East might legitimately (under international law) be shot down or forced down by threat of force, including by use of missiles. It also says the Video suggested that passengers and crew on QAG flights which were forced down would be subject to “harsh treatment” by the Blockade States when their planes were grounded.
QAG argues that, as intended by Al Arabiya, the Video discouraged many among QAG's potential customers from taking flights with it, thereby causing large scale losses. QAG argues that its loss was suffered worldwide but in particular in the UK and MENA (Middle East North Africa) regions.
Given the claimed connections of Al Arabiya with the Saudi royal family and government, QAG says that it can be inferred that the key motivations for the Video were harming Qatar Airways, as the Qatari state-owned national flag carrier, and interfering with air services to/from Qatar when (in large part due to international pressure) the air blockade was incomplete.
QAG contends that the Video amounts to malicious falsehood, unlawful interference with its business, and also that it was made and issued pursuant to a conspiracy between the Defendants and others aimed at harming QAG.
QAG obtained permission from the Master to serve these proceedings out of the jurisdiction on the First, Third and Fourth Defendants on 31 December 2018. The Second Defendant (“MEN UK”) is a UK company.
By an Application Notice dated 29 August 2019, the Defendants seek to set aside the Master's order for service out of the jurisdiction. They also apply (by Application Notice dated 16 July 2020) to strike out/for summary judgment in respect of the claim against MEN UK. By these applications, they mount a root and branch attack on QAG's case.
By way of high level summary of the Defendants' position, they say the Video was the work of a single journalist, Ms Rawabdeh, working for the Fourth Defendant. Their evidence is that the Video is an informational and journalistic piece which Ms Rawabdeh created in good faith to explain the air blockade in simple terms at a time of public confusion. Ms Rawabdeh says she conducted research in order to create the Video and acted under the supervision of her commissioning producer (Mr Rawashdeh). The Defendants argue the conspiracy theory is fanciful and no entity or other persons were involved. They say the Video was in all respects accurate.
Accordingly, they submit that that there is no “serious issue to be tried” on the merits as to the meaning of the Video, claimed falsity and malice. They also attack the claim relying on pleading deficiencies in respect of malice/fraud, the lack of jurisdiction of English courts in respect of overseas publications of the Video, limitation points, as well as arguing the lack of any real and substantial tort in England. They run seven distinct points in all on the “serious issue to be tried” question.
In addition, they argue the jurisdictional gateways within paragraph 3 of CPR PD 6B are not satisfied. Finally, they make a classic forum non conveniens challenge, arguing that the UAE is clearly the appropriate forum, and that QAG has not adduced cogent evidence of a real risk of substantial injustice there.
Independently of this submission, they say that permission should be set aside by reason of serious failures to make full and frank disclosure to the Master when obtaining permission to serve out.
In order to head off certain of the pleading complaints made by the Defendants in their skeleton argument, QAG served draft amended Particulars of Claim at 9.40am on the morning of the first day of the hearing before me.
I will call this “POC3” (there having been the original POC and POC2, a draft from April 2020). POC3 is the subject of an Application Notice dated 14 October 2020 seeking permission to amend. The claims in final form are for malicious falsehood and a number of additional tort claims: “unlawful” and “lawful” means conspiracy, joint tortfeasorship, and interference with business.
When I refer to “the other tort claims” in this judgment, I intend to refer to those tort claims apart from malicious falsehood (which has been the focus of the arguments before me). For completeness, I should identify that the “unlawful means” relied upon in support of that aspect of the conspiracy claims are malicious falsehood, common law deceit and breach of the Communications Act 2003.
Of particular relevance is the fact that in POC3, QAG identified for the first time in pleaded form the names of the persons within the Defendant companies said to have been actuated by malice or to have acted with relevant fraudulent intent/bad faith for each of the torts.
Before turning to the first of the issues in dispute, I need to register a mild concern as to the way in which the jurisdiction application before me was prepared and argued.
Despite repeated judicial statements as to the need to approach applications of the present type with considerations of proportionality firmly in mind, I was presented with a body of evidence, authorities and argument which would not have been out of place at a substantive trial. I refer to the observations by Lord Briggs, speaking for the Supreme Court, in Lungowe v Vedanta Resources plc [2019] UKSC 20; [2018] 2 WLR 1015 at [6]–[11].
There were 11 witness statements (with about 1500 pages of exhibits), expert reports (and responsive reports) from two firms of forensic consultants (Digitalis and Duff & Phelps), as well as expert evidence as to UAE law from each side. The parties relied upon case law in excess of 170 authorities and served over of 200 pages of written submissions, supplemented by notes following the hearing to deal with points raised and which could not be fully addressed during the 3 days of oral argument.
As appears below, there are clearly some important points of law raised in this application, and I was given substantial assistance by the cogent and well-structured submissions of Counsel for the parties. The issues of law clearly required detailed oral and written arguments (including additional legal arguments on points I had raised during the hearing).
However, full blown oral and written...
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