Shah Muhammad v Daily The News International
| Jurisdiction | England & Wales |
| Judge | Master Cook |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] EWHC 674 (KB) |
| Docket Number | Case No: QB-2022-002521 |
| Court | King's Bench Division |
[2023] EWHC 674 (KB)
Master Cook
Case No: QB-2022-002521
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant in person
Greg Callus (instructed by Stone White Solicitors) for the 2 nd to 4 th Defendants
Hearing date: 10 March 2023
Approved Judgment
This judgment was handed down remotely at 10.00 am on 30 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is the hearing of an application made by the Second to Fourth Defendants under CPR r 11 to contest the jurisdiction of the Court and of a cross application by the Claimant made under section 32A of the Limitation Act by which he asks the Court to exercise its statutory discretion to extend the one year limitation period which is applicable to this libel claim.
The parties
The Claimant describes himself as a human rights activist and journalist, who hosts a talkshow on Facebook and Youtube. He is a Pakistani national and claims that he is more generally known as Shah Mahmud Khan, sometimes spelled Shah Mehmood Khan.
The Claimant acts in person. He told me he had taken some legal advice but could not afford to employ the services of a solicitor. I have made due allowance for the fact that the Claimant is a litigant in person and very properly Mr Callus has identified points which might properly be taken by the Claimant in response to the application. None the less the words of Lord Sumption in Barton v Wright Hassell LLP [2018] UKSC 12 at [18] have particular relevance here:
“… At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR r 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him: R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472, para 44 (Moore-Bick LJ); Nata Lee Ltd v Abid [2015] 2 P & CR 3. At best, it may affect the issue “at the margin”, as Briggs LJ observed (para 53) in the latter case, which I take to mean that it may increase the weight to be given to some other, more directly relevant factor. It is fair to say that in applications for relief from sanctions, this is mainly because of what I have called the disciplinary factor, which is less significant in the case of applications to validate defective service of a claim form. There are, however, good reasons for applying the same policy to applications under CPR r 6.15(2) simply as a matter of basic fairness. The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter's legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”
The Claimant complains of news coverage arising from a protest which took place in front of the Pakistani High Commission and the Qatari Embassy on Sunday 23 May 2021. In particular he claims references in the news coverage to one of the organisers of the protest being “Shah Mehmood Khan” are references to him.
The First Defendant is a newspaper published in Pakistan according the particulars of claim it is also published online at www.thenews.com.pk. The First Defendant has not played any part in this application.
The Second Defendant is the United Kingdom establishment of a Pakistani company called Jang Publications (Private) Ltd and publishes the Daily Jang London in both Urdu and English.
The Third Defendant is a company registered in England and Wales and licenses material from Independent Media Corporation Pvt Ltd (IMCL).
The Fourth Defendant is a journalist. It is common ground that he was the author of the articles which are the subject of this claim and set out at paragraph 3 of the Particulars of Claim.
The proceedings and applications
The electronic court file shows that the claim was issued on 27 July 2022 but the statement of truth is dated 19 May 2022. The Claim form contains the following brief details of claim:
“1 — The: Claimant claims damages for libel in respect of news stories published and compiled by the defendants falsely nominating the claimant to be an organizer of a “violent protest demonstration” which vandalised the Pakistani High Commission in London. These stories were published on the: websites of https://www.thenews.com.pk, https://www.geotv and https://www.jang.com.pk on May 25, 2021, May 24 2021 and May 25 202 respectively. The news stories have also been published on the FRONT PAGES of the print editions of daily JANG LONDON, Jang Karachi, Jang Lahore, Jang Rawalpindi and Jung Multan.
2 — The Claimant expects apology from the Defendants for falsely nominating the Claimant to he one at the organisers of the protest demonstration
3 — Any other relief, remedies or Orders as the Court may deem just and convenient”
The claim form refers to “particulars of claim attached”, which are dated 12 July 2022 on the version filed with the court. The version served upon the Defendants is dated 27 July 2022.
The Claimant chose to serve all Defendants at an address which is the business address of the Second Defendant, Room 213A – Floor 2 Golden Cross House, 8 Duncannon Street, London WC2N 4JF.
Service of the claim form was by post and it is common ground between the parties, that the date of posting was 11 October 2022 so that the deemed date for service pursuant to CPR r 6.14 is 13 October 2022.
The applications and evidence filed
The Second to Fourth Defendants' application was issued on 4 November 2022 and is supported by the witness statement of Ms Sultana a solicitor dated 4 November 2022. The Claimant filed a witness statement in response dated 1 March 2023 and a further short witness statement of the same date. On behalf of the Second and Third Defendants' the witness statement of Mr Chagtai dated 2 March 2023 and the Fourth Defendant dated 2 march 2023 were filed in response.
The Second to Fourth Defendants' application under CPR r 11 to challenge the jurisdiction of court is made under three separate limbs;
i) The Second and Third Defendants challenge the jurisdiction of the English Courts on the basis of s.10 Defamation Act 2013 (“DA2013”).
ii) The Fourth Defendant challenges jurisdiction on the basis that he hasn't been validly served at all pursuant to CPR Part 6.
iii) All Defendants challenge jurisdiction for lack of timeous service of the Claim Form, either; a) because the Claim Form was issued within its period of validity but then became void as not served upon them within the statutory 4-months allowed by CPR r.7.5(1), or b) because the Claim Form was not issued within the 1-year limitation period provided by s.4A Limitation Act 1980. (“ LA 1980”)
The Claimant issued an application on 2 January 2023 (dated 25 November 2022) to disapply the limitation period under s.32A LA1980 in response to the third limb of the Defendants' application. The Claimant's evidence is support is contained within the application notice.
Challenging the jurisdiction of the court
As submitted by Mr Callus, it is settled law that an alleged failure of service should be challenged by way of an application under CPR r. 11, see Bank of Baroda v Nawany Marine Shipping FZE [2016] EWHC 3089 (Comm) at [10]–[20]. Service of originating process is the necessary foundation of jurisdiction.
Section 10 of the Defamation Act 2013 provides:
“ 10. Action against a person who was not the author, editor etc
(1) A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.
(2) In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.”
In the circumstances, given the express words of the statute, an application by a party who contends they were not an “author, editor or publisher of the statement complained of” may, in suitable circumstances, be considered as a jurisdictional challenge under CPR 11. I am fortified in this view by the remarks of Warby LJ in Soriano v Forensic News [2021] EWCA Civ 1952 at [52]:
“There is no obvious reason why s 10 should not be construed as a provision about personal jurisdiction, to be applied when an application is made for permission to serve outside the jurisdiction, or on an application to set aside service under Part 11. The fact that the jurisdiction under s...
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