Veliu v Mazrekaj and another
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 11 July 2006 |
| Neutral Citation | [2006] EWHC 1710 (QB) |
| Docket Number | Case No: HQ05X03648 |
| Court | Queen's Bench Division |
| Date | 11 July 2006 |
[2006] EWHC 1710 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Eady
Case No: HQ05X03648
Alexandra Marzec (instructed by Carter-Ruck) for the Claimant
Neither Defendant appeared
Hearing date: 26 June 2006
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.
The nature of the claim
The Claimant is a young journalist who has been living and working in the United Kingdom for the past eight years. He was formerly of Yugoslav nationality (being an Albanian from Kosovo) and was granted exceptional leave to remain here in November 2003. His work includes investigative journalism and reporting on United Kingdom affairs for Albanian television and newspapers, as well as working for various media outlets here. He has been a member of the National Union of Journalists since November 2002.
In these proceedings, the Claimant sues in respect of an article published in Albanian on 20 July 2005 in Bota Sot, a Kosovan daily newspaper which is published from Zurich and sold in various countries including the United Kingdom. According to the evidence, it is widely read in this jurisdiction and particularly among the Albanian community in London, of whom I understand there are approximately 20,000. It is available in newsagents and public libraries, and has a substantial readership, measured almost certainly in thousands, among Albanian speakers. The first Defendant is the owner and publisher of the newspaper and the second Defendant its editor.
The translation of the headline of the article was "A scandal at the Albanian Embassy in London". The words complained of included the first paragraph which (in translation) was in these terms:
"In one of its latest issues, the Daily Mail reveals one of those mysterious events of Albania which makes you think twice about the civilised identity of this country. An Albanian called Mohamed Veliu, who claims to be one of the most prominent journalists of his country, who resides in London, and is known for his close relations with the Pakistani Islamic community, has become one of the latest protagonists relating to the terrorist bombing attacks on the British capital's underground system".
The fourth paragraph includes the words:
"The terrorist Mohammed Sidique Khan, the worst of the four killers who bombed the London underground, was a close friend of this Albanian, who claims to be one of the most prominent journalists in Albania".
There are a number of other disparaging references to the Claimant in the article but plainly the most serious aspect is the allegation that he was a "protagonist" in relation to the bombings in London in July 2005. (I was told by Mr Veliu that the relevant Albanian word translated as "protagonist" could equally well be rendered as "participant".) The natural and ordinary meaning was pleaded in the particulars of claim as being that "the Claimant, through his close friendship with and active support for Mohammad Sidique Khan, the worst of the four terrorist killers who bombed the London underground, was closely involved with or implicated in the terrorist bombing attacks on the London underground".
There is no doubt that the allegation made against the Claimant in this article was one of the gravest imaginable. He confirmed that, as one would expect, he suffered great distress and embarrassment and was indeed anxious for his physical safety. The allegation became widely known among the Albanian and Kosovan residents in London. Apart from the impact on the Claimant personally, the allegations would plainly undermine his professional reputation and the extent to which people were prepared to trust him. Enquiries were made of his employers, so he was told, on behalf of the American government and he became concerned as to the possibility that steps might be taken against him by law enforcement authorities. The contact was made by the United States Embassy at Tirana in Albania, at the offices of Gazeta Shqiptare, who themselves felt obliged to launch an investigation into whether the allegations were true.
In fairness to the Claimant, it should be made clear that the allegations were published without any apparent investigation into them at all, or any prior contact with him, and there has never been any suggestion that the story was true. In particular, there was nothing in the Daily Mail about the Claimant (contrary to the suggestion in the article complained of). The Claimant was not a friend of Mohammed Sidique Khan. Nor had he any connection whatever with the terrorist attacks in London. It is probably significant that the authorship of the offending article was attributed to a fictitious person ("Janifer Partosh").
The second Defendant has taken no part in these proceedings and, although the first Defendant was until shortly before the hearing took place represented by solicitors and counsel, the Claimant's solicitor was notified on 23 June 2006 that they had come off the record. He too had apparently decided to take no further part in this litigation.
Nevertheless, the first Defendant had before his departure made an unqualified offer of amends on 27 February, which was accepted on 22 March 2006. One of the consequences of that development was that the first Defendant had to accept the defamatory meaning put forward in the particulars of claim.
It is perhaps surprising that the owner and editor of the newspaper should not have made common cause in the litigation, but the court has had to deal with this rather anomalous situation as it stands. By an order of Master Eyre dated 12 April 2006, judgment was entered against the second Defendant in default, with damages to be assessed. On the same occasion the Master ordered that the first Defendant was to pay compensation and costs pursuant to s.3 of the Defamation Act 1996 – the amount to be decided by a judge in accordance with the statutory procedure. The order also contained a provision that the amount payable by the second Defendant was to be decided by the judge on the same occasion.
Reconciling the statutory procedure and the assessment of damages
This case, therefore, gives rise to what is, so far, a unique situation. It became necessary for me to consider how the court should approach this task when one defendant has made an offer of amends under the statutory procedure and judgment has been entered against the other for damages to be assessed. Whenever two separate jurisdictions require to be reconciled and to operate in harness, care needs to be taken in order to ensure that there are no rough edges in the form, for example, of inconsistencies or double counting. I am grateful to Ms Marzec for her analysis of the position and her submissions as to how the court should proceed.
It is now well known how the court assesses compensation under s.3 of the 1996 Act. I summarised it, for example, in Campbell-James v Guardian Media Group plc [2005] EMLR 24 at [17]:
"There are two stages. First, I must identify in the light of the modern approach to libel damages (notably more moderate since the Court of Appeal decision in John v MGN Ltd [1997] QB 586) what is the starting point for this libel. That is to say, I must try to identify what the appropriate award would have been following a trial, but one in which there had been no significant mitigation or aggravation. Then I must move to the second stage, to consider the question of what reduction or 'discount' is appropriate, having regard to the use of the 'offer of amends' procedure, which is in itself conciliatory in character, and to any published apology".
What is unfamiliar, however, bearing in mind the general principle of joint and several liability as between defendants who are responsible for the publication of a single libel, is how this statutory procedure is to affect the position of another defendant who has made no such offer.
It is not permitted to make separate awards (in favour of the same claimant) against different defendants: see Gatley on Libel & Slander (10 th edn) at paras. 8.2 and 9.22. Moreover, in so far as the court needs to take into account factors in aggravation of damages, the general practice is to apply the "lowest common denominator"; that is to say, the damages can only be fixed by reference to aggravating circumstances for which all defendants can properly be held responsible. It has generally been thought wrong in principle to render any individual defendant liable in respect of an award which would include compensation covering aggravating conduct for which he cannot be held responsible (whether directly or vicariously): see e.g. Cassell v Broome [1972] AC 1027, 1063 (Lord Hailsham), 1090 (Lord Reid). The relevant statements in Cassell v Broome were directly concerned with exemplary damages, but it is clear that Lord Hailsham was of opinion that the same principles applied to aggravated damages. That would certainly seem to accord with principle, since in both cases the court is concerned with assessing the conduct of an individual defendant or defendants over and above the mere publication of the libel.
It is right to say, however, that the application of the lowest common denominator to aggravated damages is not wholly free from doubt: see Hayward v Thompson [1982] 1 QB 47, 62, where Lord Denning MR specifically referred to the observations of Lord Hailsham in Cassell v Broome at p1063 and commented:
"I do not think that this is at all satisfactory. Suppose there are some circumstances of aggravation available against 'The Sunday...
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