Riad Tawfiq Al Sadik (AKA Riad Tawfiq Mahmood Al Sadek Aka Riad Tawfik Sadik) v Suhad Subhi Sadik
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 16 October 2019 |
| Neutral Citation | [2019] EWHC 2717 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HJ17M03508 |
| Date | 16 October 2019 |
[2019] EWHC 2717 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: HJ17M03508
Richard Munden (instructed by Gowling WLG (UK) LLP) for the Claimant/Respondent
Ian Helme (instructed by Brett Wilson LLP) for the Defendant/Applicant
Hearing date: 2 April 2019
Approved Judgment
The Honourable
Introduction
This is a claim in libel. The applications before me are brought by the Defendant/Applicant pursuant to an application notice dated 30 January 2019. She seeks an order that the Claimant/Respondent's claim be struck out pursuant to CPR r 3.4(2) and/or that she be granted summary judgment pursuant to CPR r 24.2.
For clarity, in this judgment I will refer to the Claimant and the Defendant. They are closely related. The Claimant is the brother of the Defendant's husband and she is the sister of the Claimant's wife.
The libel claim arises out of three WhatsApp messages sent by the Defendant to a group of 34 people on 18 or 19 September 2017 (the Messages). WhatsApp is a messaging service allowing users to exchange messages to each other individually, or via user-defined groups, over the internet. All of the group members were part of the Claimant's wider family. The Messages were sent following bitterly contested family property litigation between parties including the Claimant on the one part, and the Defendant and her husband and son on the other (the property litigation).
The property litigation concerned a house in London, the ownership of which was disputed. The Defendant and her husband had lived there for a number of years. The Claimant prevailed in this dispute when, at the conclusion of the trial, the Defendant, her husband and son discontinued their action and signed a consent order giving vacant possession of 22EM, plus mesne profits and costs.
On the same day the consent order was signed, the Defendant sent a photograph of the Claimant sitting with his wife and solicitor to the WhatsApp group. They had been sitting in a sandwich shop near to the Royal Courts of Justice when they were photographed by the Defendant. The photograph was accompanied by the Messages in Arabic which, when translated, were as follows:
a. ‘A photograph of the Zionist, Riad [ie, the Claimant], whilst he was arranging with the attorney how he can rob his brother's house, whilst he had sworn on the Quran and before everyone falsely without respecting the sanctity of the Quran’.
b. ‘When we confirmed the level of his audacity to lie and that he had the audacity to lie whilst holding the Quran in his hands, we withdrew our case from court. I ask God to be the judge – I say to you, my brothers and beloved ones that this the Palestinian who is fighting to smash his brother. However, God's love for us is a blessing, for which we always praise Him.’
c. ‘My love and respect for the Al Sadek family, which I'm proud to belong to. I ask God to punish this Zionist who claims that he is a Palestinian …’.
The pleaded defamatory imputations arising from these words are as follows (Amended Particulars of Claim (APOC), [11]). The Claimant asserts they meant that he had:
a. Arranged to rob his brother's house.
b. Lied, even after having sworn on the Quran to tell the truth; and
c. Committed perjury in order to dishonestly promote his interests at the expense of his own brother.
The Defendant's application is based upon three alternative grounds:
a. Firstly, that this court does not have jurisdiction to hear and determine the action by virtue of s 9 of the Defamation Act 2013 because at the relevant time she was domiciled outside the UK (the DA 2013) (Ground 1).
b. Second, there is no real prospect of the Claimant establishing that the publication of the statement of which he complains has caused or is likely to cause serious harm to his reputation within the meaning of s 1 of the DA 2013 and so they are not defamatory (Ground 2).
c. Third, pursuit of the claim is an abuse of process pursuant to the principles established in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (Ground 3)
At the core of the application are the admitted facts that:
a. There were only 34 publishees of the Messages, each of whom are members of the Claimant's and Defendant's extended family (APOC, [8]).
b. The publishees are not based in the UK. With the exception of one person who lives in the United States, they live in the various countries in the Middle East listed beside their names in Schedule A to the APOC. Schedule A to the APOC pleads that it is to be inferred that they were in the specified countries when the words were published.
The decision of the Supreme Court in Lachaux v Independent Print Limited [2019] 3 WLR 18 on the threshold question of serious harm under s 1 of the Defamation Act 2013 (DA 2013) was given on 12 June 2019. As this decision is relevant to Ground 2, the parties requested the opportunity to file written submissions on it, which I granted. This meant, however, that publication of this judgment has been delayed as a consequence.
The parties and the factual background
The Claimant is a businessman and philanthropist who lives in Dubai and spends 30 to 35 days in London each year. As I have said, the Claimant and Defendant are brother and sister in law: the Claimant is the brother of the Defendant's husband and she is the sister of the Claimant's wife. She has a house in Kuwait with her husband. There is an issue about the Defendant's residence which I will discuss later, but it is common ground that until at least 19 September 2017 she lived at 22 Ennismore Mews, London SW7 (22EM), whilst also maintaining a house in Kuwait.
This libel claim arises out of the property litigation in 2016 – 2017 between the Claimant and Defendant (together with her husband and son) about the ownership of 22EM. This property was at the time owned by the Claimant, but the Defendant's case was that he agreed to sell it to her husband in 1992. The Claimant contended that there was no such agreement. 22EM was owned by a company called Fourstar Limited (‘Fourstar’) in a trust structure for the benefit of the Claimant's son.
The Defendant's family commenced a claim for proprietary estoppel against the Claimant and Fourstar in the County Court. Fourstar issued its own claim seeking possession of 22EM and mesne profits; the two claims were consolidated and tried before His Honour Judge Gerald in the Central London County Court between 11 and 18 September 2017 (the 22EM Litigation). The litigation was very acrimonious.
On 18 September 2017, the last day of the trial, the Defendant encountered the Claimant, his wife and his solicitor in Pret a Manger on the Strand. There was an exchange between them, the details of which are disputed but do not matter for present purposes. She then took the photograph which accompanied the Messages complained of.
Later on 18 September 2017, the Defendant's family discontinued their claim and agreed terms of settlement which were embodied in a consent order dated 19 September 2017. This required the Defendant and her family to deliver up vacant possession of 22EM by 4pm on 19 October 2017; and to pay costs in the sum of £550 000 to the Claimant and Fourstar and mesne profits of £242 880 to Fourstar. The Defendant vacated 22EM the same day and went to live with her daughter in London. Around the same time, she sent the Messages that are complained of.
As I have said, the members of the WhatsApp group to whom the Messages were sent are identified by name in Schedule A to the APOC and are based in the countries appearing by their name. It is expressly pleaded that these individuals read the words in the countries in which they live, and not the UK or anywhere else. The Claimant's evidence in his Third Witness Statement at [23] is that, ‘There are perhaps a dozen names in the WhatsApp Group that I have a very close relationship with… There are perhaps 12 names for people whom I recognise but have no contact with. There a further dozen names that I do not recognise.’
Immediately after publication, the Defendant left the WhatsApp Group. She is aware that at least two of its members published messages defending and praising the Claimant (see the Defendant's Second Witness Statement at [78]–[80]).
Procedural Background
The procedural history to this claim is as follows.
The Claimant states that he learned of the words complained of on 19 September 2017. His lawyers wrote a letter before action on 20 September 2017 which was delivered to 22EM.
On 26 September 2017 the Claimant issued a Claim Form and filed Particulars of Claim seeking £25 000 in damages and an injunction against the Defendant in both defamation and harassment. The harassment claim was later discontinued. The same day the Claimant sought to serve these on the Defendant at 22EM, together with an Application Notice by which the Claimant sought an interim injunction against the Defendant in both harassment and defamation (the Interim Injunction Application). On 4 October 2017 Nicklin J heard the Interim Injunction Application and rejected it.
On 24 May 2018 the Claimant applied for judgment in default in respect of his defamation claim, together with summary disposal pursuant to s 8 of the DA 1996 (the Default Judgment Application). On 26 June 2018 Nicklin J heard the Default Judgment Application. I have an approved transcript of his judgment. He held that the Defendant's messages were seriously defamatory of the Claimant, that the claim satisfied the requirement of serious harm under s 1 of the DA 2013, and that it...
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