Talib Hussain v Sabir Hussain
| Jurisdiction | England & Wales |
| Judge | Judge Moloney QC |
| Judgment Date | 29 October 2013 |
| Neutral Citation | [2013] EWHC 4839 (QB) |
| Docket Number | Case No: IHJ/13/0541 |
| Court | Queen's Bench Division |
| Date | 29 October 2013 |
[2013] EWHC 4839 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Moloney QC
Sitting as a Judge of the High Court
Case No: IHJ/13/0541
Mr David Berkley QC (instructed by Blacks Solicitors) appeared on behalf of the Claimant
Mr Jonathan Crystal (instructed by Hill Dickinson) appeared on behalf of the Defendant
This is my judgment in action number HQ12D05332 between Mr Talib Hussain and a gentleman who may be known as Mr Sabir Hussain or perhaps as Mr Mohammed Sabir. There is a dispute as to that, but there is no dispute as to what person he is or that he is properly represented by solicitors and counsel here today.
My judgment is formally upon the claimant's application dated 21 July 2013 to amend the Particulars of Claim in this slander action. That application is opposed by the defendant on three grounds, the latter two of which overlap considerably, first of all that the amendments are themselves defective in point of form; secondly that there has been very excessive delay in the pursuit of this case by the defendant; and thirdly (overlapping with the second one) that that has reached a point where to allow the claim to continue would be an abuse of process in the sense in which that term has been used since Jameel v Dow Jones [2005] EWCA Civ 75. There is no formal cross-application here for me to strike the claim out on the Jameel basis; but what is said is that since it is implicit in the claimant's application that the Particulars of Claim as they stand are fundamentally defective, it follows that if I refuse to allow the amendment then the claim will have to be dismissed and that it is proper for me to take the Jameel factors into account in reaching my decision on whether in my discretion I should allow this amendment.
I accept that in principle that is a legitimate course for me to pursue and one that has been followed by judges in the past, though I express my regret that advantage was not taken of the ample time available to the defendant to make a formal Jameel application which would have clarified the issues and also been of assistance to the claimant and the court in permitting the claimant to put forward evidence in rebuttal should he have wished to do so.
I will deal first with the form of the amendment because that is a freestanding issue. I bear in mind the established principles that the court will as a very general proposition permit amendments where necessary to do so in order to ensure that issues between the parties are properly defined but subject to the very important rider that amendments will not be allowed where to do so would be prejudicial to the defendant or indeed to the wider public interest in the administration of justice.
Now, so far as the Particulars of Claim are concerned, I have said that this is a slander claim, and I will be coming to its details a little later on. For present purposes it is material to note that the dispute arises between members of the Mirpuri-speaking Muslim community in the city of Bradford. The words complained of were originally pleaded as if they had been spoken in English and it was the claimant's case that the words complained of were spoken in English. But after some time (and I will come back to this in reviewing the chronology) he accepted that the words had in fact been spoken in the Mirpuri language. The main amendments to the Particulars of Claim with which I am concerned are: (a) to replead the words complained of in Mirpuri and then to plead a literal translation into the English language and the consequent natural and ordinary defamatory meanings (also of course in English); and (b) to drop a pleaded claim based on malicious falsehood in respect of the same words and to drop the claims for special damages and for interest upon damages as a corollary of the above exercise.
The defendant's principal objection of a formal nature is as to the words and meanings pleaded: do they convey a slander actionable per se (in other words, do they impute the commission of a criminal offence, in this case arson) or are they capable of bearing some lesser meaning such as that the claimant had through negligence allowed a building to be burned down? Without going through the pleading line by line I can simply say this. I am satisfied that the claim is now properly pleaded in this sense: that it sets out the necessary ingredients of a claim in slander including the original words spoken, when and to whom they were spoken, the literal translation and the natural and ordinary meanings relied on. It is set out sufficiently clearly to raise a triable question as to whether the words complained of, if spoken in Mirpuri and if bearing the literal meaning attributed to them, would have been understood in context by the hearers as imputing arson rather than some lesser meaning. The hearers are all likely to have been members of the community who would have known much of the background. It is for the trial court (or possibly this court on a formal meaning application at a later stage) to decide whether the words complained of do bear that high meaning of criminality so as to establish a claim in slander. But it is sufficiently pleaded for present purposes and I see no reason to debar the amendment of the Particulars of Claim on that ground.
The defendant does raise legitimate objections to the claim form, which is not at present sought to be amended. They point out that the claim form will require amendment, in particular so as to permit a claim for an injunction which at the moment is pleaded only in the Particulars of Claim. If the matter is to proceed the claimant will have to apply for permission to amend the claim form to accord with the amended Particulars of Claim. The appropriate fees would have to be paid for that enhanced claim. (There is also, as I have said, a dispute as to the name and address of the defendant; but he is properly identified and properly represented and I do not think that the claim or amendment stands to fail on that ground only.)
Accepting that the amendment is in form sufficient to disclose a good cause of action or a series of good causes of action, it is now incumbent on me to consider the questions of delay and prejudice arising from the amendment in order to decide whether I should allow or refuse it. Delay is relevant in several different ways.
It will be helpful if I set out briefly at this point the chronology of relevant events. The story begins in July 2011. On 12 July 2011 there was a fire at a mosque in Bradford, a mosque at which both the claimant and the defendant are prominent members of the congregation. Almost immediately thereafter, between 13 July and 23 August 2011, it is alleged that on eleven occasions the defendant met with smaller or larger groups of people, members of his community and in many cases associated with the mosque (sometimes on religious or quasi-religious occasions such as funerals, sometimes on social occasions) and on each occasion said words which are alleged to mean that the claimant started the fire deliberately so as to be guilty of the crime of arson.
I should say that for the purposes of this application I of course have to approach the matter on the hypothesis that the allegations of publication set out in the Particulars of Claim are or may be made out as true. It is not for me now to determine the question of their truth or falsehood, merely to analyse the case as the claimant puts it forward. I should say that the defendant has from the very first denied that he ever said any such thing; that is his principal line of defence.
From August to October 2011 the claimant sent a series of protocol letters of complaint to what he believed to be the defendant's name and the defendant's address, though there is a dispute about that or whether the defendant ever received them. In October 2011 the Particulars of Claim were issued in the local District Registry of the High Court. That was the original Particulars of Claim in the English language form. In November 2011 the Defence was served denying responsibility for publication. Also at that time in correspondence the defendant indicated his position: that he had never said the words or intended to say them and that he was happy to make that clear. But he did not go so far as to say that he was willing to admit that he said them, or to make a public apology for them, or indeed to admit that they were definitely false.
In December 2011 the matter reached the allocation questionnaire stage. In March 2012 there was a directions hearing. At that hearing objections were raised to the form of the Particulars of Claim and District Judge Goldberg made an order giving the claimant in effect liberty to amend the Particulars of Claim. In May 2012 an original version of the draft amended Particulars of Claim was served. For present purposes it is relevant to note that that included the words in their Mirpuri form and with their translations in the same form as in the present draft, so the Mirpuri words and the literal translations of them were communicated to the defendant in May 2012 within a twelve-month period of the original alleged slanders.
The case was stayed for some time for mediation, which unfortunately failed. It was then restored and transferred to the Royal Courts of Justice. Perhaps as a result of that, the matter then slowed down. There was a case management conference listed on 5 November...
To continue reading
Request your trial