AL RAJHI BANKING & INVESTMENT CORPORATION v The WALL STREET JOURNAL EUROPE SPRL [CA (Civil), 12/08/2004]
|England & Wales
|Mr. Justice Eady,Mr Justice Eady,MR JUSTICE EADY
|21 July 2003
| EWHC 1358 (QB), EWHC 1776 (QB)
|Case No: HQ02X00924,Case No: H002X00924
|Queen's Bench Division
|21 July 2003
 EWHC 1358 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ02X00924
Desmond Browne Q.C. and Mark Warby Q.C (instructed by Eversheds) for the Claimant
Geoffrey Robertson Q.C. and Lucy Moorman (instructed by Finers Stephens Innocent) for the Defendant
Hearing date : 20 May 2003
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 Claimant corporation in these libel proceedings is Al Rajhi Banking & Investment Corporation, which is said to carry on an international banking business (although the extent of its activities may be an issue in the case). It is incorporated in Saudi Arabia as a Saudi joint stock company, having been formed and licensed as a commercial bank pursuant to a royal decree on 30 June 1987. Its headquarters are in Riyadh and there are more than 350 branches throughout that country. It is controlled by members of the Al Rajhi family, members of which make up the majority of its board of directors and executive committee.
The Chairman, Managing Director and largest stake holder is Sulaiman Abdul Aziz al-Rajhi and one of his brothers, Saleh Abdul Aziz al-Rajhi, has the second largest holding and is also a director. I hope that for convenience, and without discourtesy, I may be permitted to refer to these two gentlemen as "Sulaiman" and "Saleh". Other members of the executive committee include Abdulla Sulaiman al-Rajhi, Salah Ali Aba Al-Khail, Naser Mohammed Al-Subai'y and Mohammed Abdul Aziz Al Rajhi.
The Claimant is obliged to comply with accounting standards issued by the Saudi Arabian Monetary Agency ("SAMA"), which is responsible for regulating and supervising it. It operates in accordance with Islamic principles (e.g. paying no interest on deposits) and has a Shariah Board to review investments and lending schemes.
The Claimant sues in this jurisdiction over the publication on 6 February 2002 of an article in the Wall Street Journal Europe by the Defendant Corporation. It was published on the front page under the headline "Saudi Officials Monitor Certain Bank Accounts: Focus Is On Those With Potential Terrorist Ties" and was continued on page 4 under the heading "Certain Saudi Bank Accounts Are Being Closely Monitored". Complaint is made of certain passages set out in paragraph 4 of the particulars of claim:
"RIYADH, Saudi Arabia –The Saudi Arabian Monetary Authority , the kingdom's central bank, is monitoring at the request of US law-enforcement agencies the bank accounts associated with some of the country's most prominent businessmen in a bid to prevent them from being used wittingly or unwittingly for the funnelling of funds to terrorist organisations, according to U.S. officials and Saudis familiar with the issue.
The accounts – belonging to Al Rajhi Banking and Investment Corp., headed by Saleh Abdulaziz Al Rajhi … are among 150 accounts being monitored by SAMA, said the Saudis and the U.S. officials based in Riyadh.
The U.S. officials said the U.S. presented the names of the accounts to Saudi Arabia since the Sept 11 terrorist attacks in America…
The U.S. officials said the U.S. had agreed not to publish the names of Saudi institutions and individuals provided the Saudi authorities took appropriate action. Many of the Saudi accounts on the U.S. list belong to legitimate entities and businessmen who may in the past have had an association with institutions suspected of links to terrorism, the officials said. The officials said similar arrangements had been reached with authorities in Kuwait and the United Arab Emirates. "This arrangement sends out a warning to people," a U.S. official said.
The U.S. officials said the accounts of Al Rajhi Banking ……………….were being monitored because of suspected associations of the companies in the past. A spokesman for Al Rajhi Banking, Ahmed Suleiman Ahmed, said, "We maintain that our names have not come up nor have names of members of the Al Rajhi family."
(The words italicised are those selected for complaint.)
The natural and ordinary meanings attributed to these passages are pleaded as follows, namely that:
"a. the Claimant has potential terrorist ties; there are reasonable grounds to suspect that the Claimant has associated in the past with terrorists or institutions linked to terrorism, and that the Claimant may now knowingly use or allow the use of its bank accounts for the funnelling of funds to terrorist organisations;
b. to prevent this, or the unwitting use of the Claimant's accounts for the same purpose, it has been necessary for US law-enforcement agencies to send out a warning about the Claimant, requiring the Saudi Central Bank SAMA to include the Claimant's accounts in a select group placed under close monitoring;
c. SAMA has complied with the U.S. requirements, so that the Claimant is a suspect associate of terrorists, whose accounts have been subject to close monitoring by SAMA;
d. the Claimant has falsely denied that it is under suspicion, from which it is to be inferred that it is either dishonest or subject to central bank monitoring carried on without its knowledge."
It is important to note that no individual has sued. In particular, although mentioned by name, Saleh has not himself commenced proceedings. As so often in such cases, it is always necessary to focus on meanings which convey or may convey a defamatory imputation upon the claimant corporation, and bear in mind that proceedings should not in such circumstances be regarded as a vehicle for the vindication or compensation of individuals who have chosen not to bring proceedings. This can mean sometimes that there is an artificial air about such claims, since a corporation can only act through human beings and some defamatory allegations in the corporate context are likely to be capable of reflecting only on human beings while others, even though reflecting on a corporation's trading reputation, may give rise to serious defamatory imputations against identifiable individuals.
These matters were considered in general terms in . What was said on that occasion was that there are some categories of allegation (e.g. of corrupt business practices) which would normally be taken as reflecting upon one or more human beings rather than upon a corporate entity, but that there could be circumstances in which they had a tendency also to damage a corporate business reputation. The court needs to examine any claim to that effect very carefully in cases where the allegations appear to reflect primarily upon human beings. The relevant test would appear to be that promulgated by Lord Keith in , 54Examples he gave of allegations having a tendency to damage a corporation's business reputation were:
"…those that go to credit such as might deter banks from lending to it, or to conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it".
Also, in 24 May 2001, unreported, QBD, the court again referred to the need to be alert to the possibility of corporate entities being "put up" to bring claims for libel in respect of allegations truly reflecting upon individuals., Nevertheless, as Lord Keith has made clear, allegations about human activities can damage a company's trading or business reputation as well as that of the individuals concerned. Here, that test may well be fulfilled. Even so, one of the Claimant's less persuasive submissions was that the Defendant cannot justify an allegation about the bank, in proceedings brought only by the bank, through the device of pleading facts about members of the Al Rajhi family – unless it is also alleged that, at the time of the relevant conduct, the individual concerned was acting on behalf of the bank. This seems to me artificial. Disreputable behaviour on the part of those running a corporation, especially if it reflects upon their integrity, can cause people who hear of it to shun and avoid the corporation itself, depending on the circumstances. I would not, for that reason alone, shut out allegations about individual members of the family being involved in the support of terrorism.
The original defence was served on 16 August 2002 and various points were taken as to the Claimant's standing to bring the claim and as to the appropriateness of such proceedings being commenced in this jurisdiction. I need say nothing about such matters, since they do not arise for consideration for me at this stage. It is fair to say that the only substantive defence raised at that time was that of qualified privilege but, again, I need say nothing as to its form or merits. On the basis of these defences, the matter has proceeded so far and is due for trial on 21 July 2003.
The matter now comes before the court on the Defendant's application for permission to amend to add a long plea of justification. It is supported by three witness statements of Mark Stephens, the Defendant's solicitor, and by others from Jean-Charles Brisard and Rita Katz. The former is a consultant and expert in the investigation of the financing of terrorism, and apparently has access to classified material. He says that he had been gathering evidence on the Claimant for some years and that it is effectively under suspicion from law enforcement agencies because of its associations or connections.
The latter is also a consultant...
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