Harrath v Stand for Peace Ltd & Anor [2016]
In Harrath v Stand for Peace Ltd & Anor [2016] EWHC 665 (QB) (06 April 2016) before Mr Justice Warby, the Claimant applied to strike out parts of the Defence and the Defendants made an application for permission to amend their Defence.The main issues raised by the applications related to matters as to the threshold issue of serious harm and the amount of any damages. The issues were whether “reliance on such matters is legitimate in principle, properly pleaded, and sustainable as a matter of fact.” There was also an issue as to the costs arising from the Defendants’ abandonment of two of its defences pleaded and the costs of the Defendants’ proposed amendments.
The claim had been issued on the 26th October 2015, nearly a year after first publication which remained on the website. The Claimant had suggested a standstill agreement which the Defendants declined. The Claimant wanted to negotiate but the Defendants served proceedings on the 17th November 2015. The Particulars of Claim were served on the 15th December 2015 with the words complained of “”Its CEO, Mohammed Ali Harrath, is a convicted terrorist.” The meaning attributed was “the claimant is a terrorist.”
Mr Justice Warby noted the matters relied upon by the Claimant. The publication had or was likely to cause serious harm to his reputation and damages were aggravated by the way the Defendants and their Solicitors dealt with the complaint. They forced the Claimant to pursue the matter rather than engage in negotiation and caused him distress by writing “aggressive and provocative letters”.
The Defence raised seven issues:
- It was not admitted that the words complained of were published – that is, communicated to any third party – as opposed to being posted. The defendants admitted responsibility for posting the article.
- It was admitted that the words complained of were defamatory at common law, but averred that all or most readers would have read those words alongside those of the Guardian article in which case it was denied that they were defamatory; and it was denied in any event that the serious harm requirement imposed by s 1 of the Defamation Act 2013 is satisfied.
- It was alleged that any publication took place on an occasion protected by statutory qualified privileges for fair and accurate reports.
- The defendants pleaded that they would defend the words complained of as substantially true. I shall return to the detail of these last two defences.
- The defendants pleaded the defence of publication on a matter of public interest provided for by s 4 of the DA 2013. The pleaded case is that the subject-matter was of public interest and that “the defendants reasonably believed that publishing the statement complained of was in the public interest.”
- It was alleged that the proceedings are an abuse of process, their purpose being to “target a Jewish-Muslim interfaith organisation … and to stop it reporting upon the claimant.”
- Issue was taken with the claimant’s case that he has suffered any substantial damage, and in paragraph 14.7 certain matters were pleaded in reduction or extinction of damages”.
The Claimant sought an order on the 25th February 2016 to strike out part of the Defence under CPR 3.4 (2) and summary judgment grounds under CPR 24.2. producing a witness statement in support. His application related to three parts of the Defence.
The first part was in respect of general bad reputation in para 8.4. of the Defence.
The second part was the claim to privilege based on an Interpol Red Notice which the Claimant contended was unsustainable. He displayed a copy which made clear there were two types of Red Notice, one for a person wanted for prosecution and the other from a court decision to serve a sentence, this Notice was the first type. The Claimant explained that the arrest warrant was issued in 1992 but withdrawn by Interpol in late 2010. He referred to an article in the New Statesman of 30th January 2012 “The terrorist who wasn’t”. The sub-heading of that article was “Vilified by the press and falsely branded a terror threat by Interpol, Mohamed Ali Harrath..”
The third part was truth. The Claimants Solicitors had pointed out in correspondence the legal problems relying upon foreign convictions. They referred to an amnesty from 22nd February 2011 in Tunisia and contended this was not only a pardon but the convictions should not have been classed as they were.
The Defendants on the 8th March 2016 sent to the Claimants Solicitors a draft Amended Defence with the defences of truth and reporting privilege deleted together with the assertion the Claimant had a bad reputation deleted but, some of the paragraph remained.
Mr Justice Warby examined the main issues which the parties disputed and referred to the Second Defendant’s witness statement where he blamed the Claimant or in part shared the blame as to the Defendants reliance upon the convictions and his request that the costs should be reserved to the trial judge.
He considered the issues could be dealt with on “two narrow and straightforward pleading grounds”. Firstly, the draft pleading is unclear what conduct of the Claimant the Defendant relied upon and secondly it does not plead that which Defendants’ counsel acknowledged would need to be pleaded for a reader to know what the matters relied upon were. He struck out the remainder of paragraph 8.4 and refused permission to make the proposed amendments.
With regard to the costs issues he considered the Claimant to be the successful party on the pleading of statutory privilege as to the Red Notice which appeared to be placed on record without a copy of it. There was suggestion of its existence but there were other reports available as to its withdrawal and that line of defence was rightly abandoned.
He considered the Pre-action conduct, governed by the Defamation Pre-Act Protocol (PAP) which parties are required to consider and ADR as to whether it would better suit the matter and observed it had not been followed in the spirit it was intended, by both parties. He also referred to the Defendants’ unwillingness to enter into a standstill agreement or exchange further information which the Claimant had requested and the Defendants Solicitors insistence that proceedings be served.
He considered “that the pre-litigation shadow boxing reflects equally badly on both parties” and the Claimant’s failings at that time did not compare with the way the Defendants acted based upon “their own evidently incomplete researches, the limitations of their own disclosure of the basis for their case, and their refusal to engage in alternative approaches to the resolution of this dispute”.
He concluded that the amendments to paragraph 8.4, which included the plea of general bad reputation and the factual material that had been relied upon, represented success for that aspect of the Claimant’s application to strike out. He could not see anything in the Second Defendant’s witness statement that would persuade him that the costs should be paid by anyone other than the Defendants.