Selvaratnam Suresh v Abdul Samad and Others

Hearing date: 27 October 2016

Judgment Approved

INTRODUCTION

The clamant in this libel action applies for judgment on liability against each of the first three defendants on the basis that they have not pleaded, and/or do not have, any viable defence to the claims. He seeks to strike out their defences and/or summary judgment on his claims.

The claimant is represented by solicitors and Counsel. Each of the first three defendants represents himself, as has been the case for most of these proceedings, including the time when their defences were prepared and filed. There is no appearance by or on behalf of the fourth defendant.

The claimant's application was filed nearly five months ago now. Its hearing has been delayed by procedural wrangling and by the defendants' late service of evidence in July 2016, resulting in an adjournment of some three months.

Last week, the first, second and third defendants filed a cross-application seeking, among other things, permission for additional statements of case which the first and second defendants filed without permission in March 2016. It will be convenient to consider that application at the same time as I address the claimant's contentions that the defences disclose no reasonable defence and/or have no real prospect of success.

The defendants' cross-application also seeks judgment against the claimant, on two grounds. The first is default in compliance with procedural directions. For reasons I shall explain later, I dismiss that application. The second ground on which the defendants seek judgment is that this "is a charity matter and not of a personal nature, thus it has no real prospectof success". That, as will become apparent, is clearly misconceived.

About ten minutes before I came into court to hear these applications I received a skeleton argument from the third defendant and, from the first and second defendants, substantial skeleton arguments and a lever arch file of documents described as "Exhibits". This represented a further significant failure by all the defendants to comply with the applicable procedures. So far as the first and second defendants are concerned, it involved the submission of yet further late evidence. Needless to say, it was highly inconvenient and left me no time to read or absorb any of the material in advance of the hearing. I was not given any satisfactory explanation for the lateness of the material.

Nevertheless, and over the understandable objections of Mr Santos, I thought it right in all the circumstances to have regard to such of the material as the first defendant was able to point me to in the course of the hearing. One factor in my decision to do so was the undesirability of granting a claimant summary judgment in a libel case concerning issues of some public interest, if others might reasonably think that unrepresented defendants had been given anything less than a full and fair opportunity to put forward arguments and evidence in defence of the claim.

BRIEF BACKGROUND

The claim arises from a dispute about education in the Tamil community in West London. It concerns allegations about the management of a charity called the Oriental Fine Arts Academy of London ("OFAAL"). The claimant sues as Chairman and a trustee of OFAAL.OFAAL is closely associated with the West London Tamil School ("WLTS"), which is also a registered charity. Each of the first and second defendants is the parent of a student at the WLTS. The second defendant is also a former OFAAL trustee and a secretary of the WLTS. The third defendant is a former student at the school.

In 2014 OFAAL had developed plans to open a school of its own. Parents and others associated with the WLTS were concerned, and a protest took place on Saturday 20 September 2014. The claimant seeks damages and other remedies in respect of two videos ("the First Video" and "the Second Video") showing those protests. The videos are said to have been posted and published on Youtube on and after 20 September 2014, posted and shared on Facebook on and after that date, and republished on a number of third party websites over the following months. The defamatory imputations which the claimant attributes to the videos can be fairly summarised in this way: that he (1) defrauded OFAAL of some £23,000 by writing a cheque to a non-existent, dissolved company; (2) defrauded OFAAL of some £480,000 of the charity's money, spending it on himself; (3) refused to answer legitimate questions about his misconduct; and (4) engaged in nepotism, by appointing cronies, to help him avoid scrutiny. The claimant alleges that the publication complained of caused serious harm to his reputation, and provides detailed particulars in support of that contention.

There is no dispute that the first and third defendants appear and speak, in English, in the First Video: the third defendant can be seen and heard to interview the first defendant on camera. There is no dispute, either, that the second and third defendants appear and speak, in Tamil, in the Second Video. Again, the third defendant plays the role of interviewer; the second defendant is the primary interviewee. The claimant's case is that each of the defendants was responsible not only for the creation of each of the videos but also for publishing them on Youtube. The posting on Youtubeis said to have been done by a person going by the name of 'Niyayam Enge'. That is the name used to describe the fourth defendant to this claim. It is however the claimant's case that this is no more than a pseudonym adopted by the third defendant. And he contends that all three defendants played a role in bringing about the Youtube publication. The claimant further complains that the third defendant shared each video on his personal Facebook page. In support of his case on serious harm the claimant alleges republication on another Facebook page titled "Justice for West London Tamil School at OFAAL" and six other third party websites.

The claim was issued on 18 September 2015, just within the limitation period. Defences and counterclaims were filed by the first and second defendants on 15 November 2015. A reply and defences to the counterclaims were filed by the claimant on 17 February 2016. On 8 March 2016 the first and second defendants each filedfurther documents called "Reply and Supporting Evidence to Particulars of Counterclaim", which included a response to the claimant's Reply. I shall call these documents "the Rejoinders". As for the third defendant, he initially failed to defend and default judgment was entered against him. This was set aside, after which, in April and May 2016, he filed three defence statements culminating in a "Final Defence Statement" dated 16 May 2016. The claimant filed a Reply to these documents on 1 July 2016.

On the same day, the claimant filed the application notice that is now before me, seeking an order striking out the defences filed by each of thesethree defendants on the grounds that they disclose no reasonable grounds for defending the claim ( CPR 3.4(2)(a)); alternatively, for summary judgmentpursuant to CPR 24.2 on the grounds that, on the evidence, the defendants have no real prospect of succeeding at a trial, and there is no other compelling reason why the claims should be disposed of at a trial.

THE PUBLICATIONS COMPLAINED OF

For the purposes of this judgment, it is enough to cite the following key passages from the words complained of in the Particulars of Claim. For ease of reference later I have used underlining, italics and bold text to emphasise some key words and passages.

The First Video

"[3 ^RD DEFENDANT] Hello good morning everybody, this is just to inform you guys regarding the protest outside Dormers Wells High School and I would like to, I would like to meet Mr Abdul who would like to talk, talk us through, talk us through the problems which is occurring in OFAAL and West London Tamil School, so hi Mr Abdul. Could you please tell us what's happening and why this protest is for?

[1 ^ST DEFENDANT] OK. The reason we are here today is we are protesting against the Governors of OFAAL who are not letting us inside the school, OK? … We are being denied entry into the school because of some of the, some of the so-called Governors aren't allowing us in. They deny children education they are entitled to. The reason they aren't allowing us in because during the last AGM we, we asked them questions about financial irregularities – where the money is miss… why the money is missing and as you can see from one of the boards there was a cheque written to a company which doesn't even exist. And there is currently £480,000 missing from our charity fund and I think all being allegedly used for personal reasons, not for the charity. …

So that's pretty much what it is. It's because we are asking them all these questions we've revealed their activities. They don't like that. They don't like people who talk out, speak out, so, and they only allow people they like, ok? People they don't like they don't want us to come in. …

…

[3 ^RD DEFENDANT] Sorry you were saying something about the cheque fraud, have you got any documentation?

[1 ^ST DEFENDANT] Yes, the one I'm holding up. There's also one stuck on this board as well. As you can see, a cheque written to Bingley Trading Esta—Trading Limited for £23,807.84, ok? The cheque was...