Tallha Basim Abdulrazaq v Shaheed UL Hassan
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 02 December 2021 |
| Neutral Citation | [2021] EWHC 3252 (QB) |
| Docket Number | Case No: QB-2020-002870 |
| Year | 2021 |
| Court | Queen's Bench Division |
[2021] EWHC 3252 (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 Jay
Case No: QB-2020-002870
Eric Shannon and Beth Grossman (instructed by Patron Law) for the Claimants
Richard Munden (instructed by Berrymans Lace Mawer LLP) for the Defendants
Hearing date: 16 th November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is deemed to be Thursday 2 nd December 2021 at 10.00am.
Introduction
The Claimants are two brothers and their father. The Defendants are the Trustees of the Exeter Mosque and Cultural Centre (“the Mosque”). The Claimants were members and attendees of the Mosque (it is said that they still are attendees, but nothing turns on this). These are defamation proceedings arising out of the publication of two documents: (1) a Notice published on 25 th September 2019 (on a noticeboard at the Mosque and online), and (2) a similarly worded Leaflet handed out to members of the community as they left Friday prayers on 11 th October 2019.
The Defendants have applied to strike out the claim and/or for summary judgment on the grounds (by way of simplification) that their defence of qualified privilege either must succeed on the pleadings or raises no issue which has a real prospect of success; and that the reply of malice is equally unsustainable. To my mind, the provisions of CPR r.3.4(2)(a) are not readily applicable in this situation because an analysis of the pleadings, particularly in the context of the plea of malice, is not dispositive. Mr Richard Munden for the Defendants agreed with me that he is in no worse position if I were to examine his clients' application solely through the lens of summary judgment, and this is what I propose to do, applying the well-known principles cited in the White Book and the authority that was drawn specifically to my attention, Easyair Ltd v Opal [2009] EWHC 339 (Ch).
There is also an application to amend the Claimants' Reply to improve the case on malice. The Defendants were content that for present purposes I should examine the case that the Claimants now wish to run.
Some Essential Background
Unfortunately, there has been considerable ill-feeling and acrimony between the parties for several years now, characterised by vilification and litigation. It is not possible to explore all the rights and wrongs of this underlying dispute, but I recognise the strength of feeling on both sides.
The Claimants say that the problems started in 2014 when over a number of months the Mosque received five cash payments each in the total amount of £50,000. It is said that the source of these payments was Sadiq Al-Ghariani, the Grand Mufti of Libya. It is also said that he is someone with extremist links. The Second Claimant was a trustee of the Mosque at the time and started questioning the source of the payments and their propriety. In due course, he resigned over the issue. The Defendants say that these were legitimate payments which funded building work within the community. They deny the alleged impropriety and point out that Mr Al-Ghariani has close links with Exeter having studied for his PhD at the university before his return to Libya after the fall of Qaddafi. The Defendants also contend that the real reason for the animus was the First Claimant's unsuccessful attempt to become Secretary to the Executive Committee in 2015.
In September 2019 the Claimants were “excluded” from the Mosque. In fact, they were expelled from membership and simultaneously excluded. The Defendants say that the community were entitled to know the reasons for exclusion and that these were genuine reasons. The Claimants, on the other hand, say that there was no need to publicise the reasons and that, in any case, the published reasons were not the true reasons for exclusion. The true reasons were that the Defendants were punishing the Claimants for raising perfectly valid questions about the Al-Ghariani monies.
The Pleadings
According to the Particulars of Claim, on or about 25 th September 2019 the Defendants published a Notice on the noticeboard at the front of the Mosque and on its Facebook page and Twitter account. The Notice explained that as from that date “the three individuals” were excluded indefinitely from the Mosque, its premises and facilities. Surprisingly, these individuals were not named but appended to the noticeboard were photographs of the three Claimants. There was no point in publishing the information in the Notice without making it clear to whom it related.
The Notice referred to the unacceptable behaviour and malicious actions of certain individuals. They had shattered the peace, harmony and sanctity of the masjid, wasted resources, both financial and personal, and had caused non-Muslims to believe that the Mosque condoned terrorism. In particular:
“From among the etiquettes required of Muslims, they are not to raise their voices in quarrels, disputes and arguments in the house of Allah (swt). Violence, condemning one another, laying false allegation and attacking others with words and threats are all Haram in the precincts of the Mosque and beyond. No one is allowed to behave in this manner and those who conduct themselves in this way are guilty of committing acts of grave disrespect in the house of Allah (swt). They are thus violating the law and command of Allah (swt) which he has given regarding the respect and esteem that is bestowed on a Mosque.”
On 11 th October 2019 it is pleaded that the Defendants caused, permitted, or allowed leaflets entitled “The Reason Behind the Exclusion Decision” containing the same or similar words to be handed to the members of the Mosque as they were leaving the building following Friday prayers. On this occasion, however, the Claimants were named.
It is pleaded that the words complained of caused the Claimants serious harm and aggravated damages are claimed.
According to the Defence, it is necessary to frame the Defendants' publications within their proper context, namely the publication by the Claimants of a number of statements which condemned the Defendants, anticipated the exclusion decision, and claimed that it was wholly unjustified. I will be referring to these publications in more detail later. The point has been made that all three of the Claimants were not responsible for all of these publications. However, the exclusion decision was made against all three of them, the Defendants taking the view that as a family they could be treated as one, alternatively that one or more Claimants were acting as agent for the others. This claim has been brought by all three Claimants, and within the Particulars of Claim it is not suggested that their cases need to be treated individually. In my view, it is not possible to differentiate between the Claimants in any meaningful way, and their cases stand or fall together.
In relation to the Notice, the Defence pleads that its publication was decided upon by the Board of Trustees and Executive Committee, “in particular to inform the Mosque Community as to the reasons for the decision to exclude the Claimants taken on 22 nd September 2019, in response to the attacks previously published by the Claimants on the Trustees and on the proposed decision”. It is also pleaded that the Notice was not written by any of the Defendants but by a member of the Executive Committee. I do not understand it to be argued that the Defendants' non-authorship amounts to be a defence, although there was a hint of that in Mr Munden's submissions. To dispose of the point very briefly, the evidence shows that Ms Neomi Alam was asked by the Executive Committee and the Trustees to do the necessary drafting, and the Defendants approved the final wording. Ms Alam was acting as their agent for this purpose.
Insofar as is relevant for present purposes, the core pleaded defence is as follows:
“18.5 Following the meeting on 22 nd September 2019, at which the proposal to exclude the Claimants from membership of the Mosque was considered, the Trustees:
18.5.1 had a legitimate interest in replying to the public attacks made upon them by the Claimants and explaining the exclusion decision, and in publishing such replies to broadly the same audiences to whom the attacks were published (worshippers at the Mosque, the local/community media, and on social media.
18.5.2 had a social or moral duty, or legitimate interest, in communicating with the Mosque's membership, worshippers and community as to the decision to exclude the Claimants and the reasons for that decision, and the Mosque's membership, worshippers and community had a corresponding duty or interest to receive such communications.”
The draft Amended Reply is a somewhat discursive document. For present purposes I may concentrate on the following.
Paragraph 84 of the draft Amended Reply addresses both limbs of the qualified privilege relied on by the Defendants. As first the first limb (“reply-to-attack” privilege) it is averred that the Defendants' publications were not as a matter of fact a reply to the Claimants' publications at all, but an ex post facto justification for the...
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