Shakir Ali v Channel 5 Broadcasting Ltd

JurisdictionEngland & Wales
JudgeLord Justice Irwin
Judgment Date16 April 2019
Neutral Citation[2019] EWCA Civ 677
Docket NumberCase No: A3/2018/1028
CourtCourt of Appeal (Civil Division)
Date16 April 2019
Between:
(1) Shakir Ali
(2) Shahida Aslam
Claimants
and
Channel 5 Broadcasting Limited
Defendant

[2019] EWCA Civ 677

Before:

Lord Justice Irwin

Lord Justice Newey

and

Lord Justice Baker

Case No: A3/2018/1028

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

The Hon Mr Justice Arnold

[2018] EWHC 298 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Hugh Tomlinson QC, William Bennett QC and Felicity McMahon (instructed by Hamlins LLP) for the Claimants

Antony White QC and Tom Blackburn (instructed by Lee & Thompson LLP) for the Defendant

Hearing date: 4 December 2018

Approved Judgment

Lord Justice Irwin (delivering the judgment of the Court): Introduction

1

This case concerns a television documentary programme broadcast by the Defendant, one of a series concerned with the work of High Court Enforcement Agents (“HCEAs”), entitled “ Can't Pay? We'll Take It Away”. The Claimants are husband and wife. Following successful proceedings against them in the County Court, the Claimants were evicted from the house they had rented in Barking, Essex. Part of the programme portrayed that eviction. It included footage which the Claimants alleged (and the judge found) represented an intrusion into their private life, not justified by the public interest, and by legitimate exercise by the broadcasters of their rights of free expression. The Claimants were each awarded damages of £10,000.

2

The Claimants appeal their damages awards. The Defendant cross-appeals the finding of liability. For clarity, we will refer to them as Claimants and Defendant throughout.

The Facts

3

The history behind this case and the events of the day are closely analysed in the long and meticulous judgment of Arnold J. We have been able to watch the programme as it was broadcast by the Defendant, as well as watching some of the “rushes” filmed during preparation of the programme, and in addition short pieces of film made and posted on You Tube by the Claimants' former landlord. The primary facts are not in dispute between the parties. We shall attempt to summarize matters, although the detail of the events, of what was recorded and broadcast, and of the presentation of the material, is important.

4

The Claimants entered into an assured shorthold tenancy of the premises on 1 December 2012. The landlord was a Mr Rashid Ahmed. His son Omar Ahmed clearly managed his father's affairs to some degree. Both were present at the eviction and Omar played a prominent part in the broadcast events. The Claimants fell behind with their rent, and there came a time when they stopped paying altogether. The agreed rent was £1,325 payable monthly in advance, with interest due on late payment. There was a covenant against sub-letting the property. The First Claimant had been in work but lost his employment, and in March 2015 he injured his left foot, which was in a surgical boot at the time of the filming. He has other significant health problems.

5

After the initial period of six months, the Claimants' tenancy became a periodic tenancy, continuing on a monthly basis, but on the terms set out in the original tenancy agreement. At some point the Claimants were eligible for and received housing benefit. At least from November 2014, this was paid directly to the landlord, Rashid Ahmed. However, as at June 2015 the housing benefit was said to be only £744.20 per month, leaving a monthly shortfall of £580.80. Other evidence suggested slightly different, but not materially different, figures.

6

The evidence was that the First Claimant stopped paying the full amount of rent in January 2014, although he did not tell his wife about that until the end of that year.

7

On 13 June 2014, Rashid Ahmed served notices for possession under section 21(4)(a) of the Housing Act 1988, and commenced proceedings for possession in September. In their defence, the Claimants admitted service of the notices, but claimed they had paid a deposit of £1,325 in cash without getting a receipt. In addition to claiming breach, and arrears of rent, Mr Rashid Ahmed claimed that the Claimants had unlawfully sublet part of the premises. The Claimants have two young children, aged 11 and 10 at the time possession proceedings were issued.

8

Preliminary hearings took place in September to November 2014, and the possession hearing took place on 16 March 2015. The District Judge found for Mr Ahmed, including finding against the claim that a deposit had been paid: that was a false claim. The Order was that the Claimants should give possession on or before 30 March 2015, plus an order for costs. The Order gave the Claimants notice that Mr Ahmed might “ask the Court, without a further hearing, to authorise a bailiff or High Court Enforcement Officer to evict you”.

9

There was no order for the payment of rent arrears: such an order had not been sought. Different figures for arrears were in evidence, ranging from £936.10 to £8,347.71, plus court and legal fees.

10

The Claimants approached the local authority on 24 March 2015 for help with their impending homelessness. However, they were, in short, informed that if they left before they were evicted, they would be treated as being voluntarily homeless. As a consequence, the council would avoid any legal responsibility to re-house them, under the Housing Act 1996. The Claimants accepted this, and did not vacate by 30 March. They informed Omar Ahmed of this by phone on 30 March. Mr Ahmed informed the First Claimant he would apply for an order for bailiffs to evict the Claimants.

11

Mr Ahmed had two routes open to him to enforce the Order for possession. In this instance he applied to have the case transferred to the High Court. Once the matter was transferred, it was governed by CPR 83.13(4), meaning that a Writ of Possession might be granted without notice. A Writ of Possession was issued on 1 April 2015. The Claimants were given no notice of the intention to evict on the following day, 2 April 2015.

12

The Order directed a named High Court Enforcement Officer (“HCEO”) to enter the property and obtain possession for the landlord. The HCEO, a Ms Sandbrook, was employed by Direct Collection Bailiffs Ltd (“DCBL”). They also employed an HCEA, Paul Bohill, and the eviction was delegated to him. He is an experienced former police officer, who has been engaged in court enforcement for very many years. On the day, he was assisted by an HCEA in training, Phil Short. Mr Bohill had for some time been filmed in the course of his work as part of the “ Can't Pay? We'll Take It Away” television series.

13

Malcolm Brinkworth is a very experienced television producer, the founder and director of Brinkworth Films Limited (“BFL”). In 2013 Mr Brinkworth decided to make a television series about debt, the courts' enforcement systems and the work of HCEOs/HCEAs. He felt the public were ignorant of the processes, and in particular ignorant of the possibilities open to landlords to achieve speedy and effective evictions, through transfer of cases to the High Court. Mr Brinkworth discussed the idea with Simon Raikes of Channel 5, and it was agreed they should proceed. The plan was to work with a company employing HCEAs. The co-operation with DCBL (Mr Bohill's employers) took place during the filming of the second series of the programme.

14

The judge described the modus operandi of the programme as follows:

“59. Mr Brinkworth also wanted to show the situations faced by HCEAs in their daily work, interacting with creditors and debtors, and thereby illustrate the consequences of growing levels of indebtedness.

60. Mr Brinkworth pitched the idea to Mr Raikes, who agreed to commission the series. Mr Raikes intended that the series would reveal as never before the process of enforcement, and the consequences of debt for all concerned. He was particularly keen that BFL should try and get interviews with both creditors and debtors. He agreed with Mr Brinkworth's intention to give context to each segment by including relevant statistics. Thus each story would serve as a real life example of a much wider problem, giving it immediacy in the minds of viewers. Mr Raikes hoped that the programme would attract a large audience and trigger a nationwide discussion of the issue. He therefore believed that broadcasting the series would be of significant public interest.

61. In order to make the series, BFL needed to follow the activities of a company employing HCEAs. Originally BFL worked with High Court Solutions, but from the second series BFL worked with DCBL. BFL operated two or three film crews for four-day blocks of filming in various locations. Each crew followed a pair of DCBL HCEAs attempting to enforce around three to five writs a day. The crews were embedded with the HCEAs, and would usually only be notified by DCBL the day before each enforcement of the relevant locations. BFL usually received a copy of the writ, but no other information, in advance.

62. Mr Brinkworth did not attend any of the filming. Ms Crook only attended occasionally, but had overall control on a day-today basis.

63. Each programme consisted of four stories i.e. four enforcement actions. When making series 4, BFL attended the execution of 720 writs of possession or control, of which only 120 were broadcast. Series 3 consisted of fewer programmes, but the ratio was about the same.

64. Once filming ended each day, the cameraman (Mr Rea in the case of the Programme) would provide the rushes to Ms Crook and prepare a story synopsis for each enforcement. After that, each story would be reviewed, including by Ms Crook, to see if it should be included in the series. A rough-cut of the programme would be assembled by the editing team, and sent to BFL's in-house lawyer Jan Tomalin for review. Mr Brinkworth would view the rough-cut and consider Ms Tomalin's advice. After any changes requested...

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