Gotcha? Civil claims arising from the activities of the Fake Sheikh – Darryl Hutcheon

The conviction and sentencing of the “Fake Sheikh”, former News of the World journalist Mazher Mahmood, has led to renewed reports of possible legal actions against him and his former employers.  It is said that these could “dwarf” phone hacking claims. It has been reported that the Duchess of York has commenced legal action and that Mr Mahmood and his former employers, News Group Newspapers Limited, face more than 40 civil claims.

There has, however, been little discussion of the legal basis for such claims.  There are a number of potential difficulties.

What Cause of Action?

First, there is the problem of the “cause of action” on which a claimant could base his or her claim.

The typical “Fake Sheikh” story was a sting in which Mr Mahmood or his associates would entice a celebrity into indiscretion or illegal activity by promises of riches to come.  To take a handful of examples:

• The story relating to actor John Alford – he supplied drugs to Mr Mahmood posing as an Arab sheikh and was exposed in the News of the World in a story published on 24 August 1997 (for the full background see R v Shannon [2001] 1 WLR 51). There appear to be a number of similar cases (such as the case involving the model Emma Morgan).
• The case of John Fashanu, who agreed to set up and fix the result of a charity football match on the request of Mr Mahmood, who was posing as a foreign businessman. He took a “deposit” of £5,000 and was promised further payments. Mr Fashanu subsequently claimed that he had merely been “playing along” with the intention of gathering evidence to then expose the corrupt activity. The story was published on 27 July 2003.
• The story relating to the Duchess of York – she was offered cash by Mr Mahmood, posing as a foreign businessman, to provide access to her former husband, Prince Andrew.  She sought a payment of £500,000. The story was published on 23 May 2010.
• The Tulisa Contostavlos case (which led to Mr Mahmood’s downfall). She allegedly arranged for a friend to supply Mr Mahmood with half an ounce of cocaine after he had posed as a film producer who wanted her to star in a blockbuster. She had been asked to obtain the drugs as a supposed test of her “street” credentials. The story was published on 2 June 2013. Criminal proceedings against her collapsed after it became apparent that Mr Mahmood had tampered with witness evidence in the case (leading to his recent conviction).

At first sight a claim for libel would not be viable – as the statements of the victims were filmed and recorded.  A claim for misuse of private information or breach of confidence may face difficulties in overcoming a “public interest” defence, at least in those cases where the victims engaged in some kind of serious wrongdoing.

It might, of course, be argued that Mr Mahmood misrepresented or distorted what the victim had said.  But this does not appear to be a promising line of argument in many cases: particularly where there have been criminal trials and convictions based on Mr Mahmood’s evidence.

Another possibility might be a claim in the tort of deceit. In each case Mr Mahmood made false statements to the victim which were relied on to that person’s detriment.  In certain cases he may have made further false representations by conduct, which in principle is also actionable.

A claim in deceit would not necessarily be straightforward. If the “detriment” was engaging in illegal activity then there could be an “illegality” defence. However, recent Supreme Court authorities establish that the success of that defence will depend on the facts of the case, with courts ultimately balancing the public policy against the illegal conduct with the public policies which would be damaged if the claim was denied (see in particular Hounga v Allen [2014] UKSC 47 and Patel v Mirza [2016] UKSC 42, in particular at [95] – [114]). Those representing claimants will certainly have scope to argue that the balance should fall in favour of the victims of Mr Mahmood’s conduct (which often involved elaborate deceit and sustained pressure to carry out illegal acts). In addition, some of the potential claims may not require the claimants to rely on their own illegal conduct – where what was exposed was said to be “hypocrisy” rather than criminal misconduct.

A claim in deceit also needs to establish that the claimant relied on the statement, though it need not be the only thing which motivates him or her to take the detrimental step. It could be contended that some claimants must have known that the representation was false and so did not rely on it.

Alternatively, claims could potentially be brought in the tort of unlawful means conspiracy. Mr Mahmood typically operated in concert with others under an arrangement whereby they would do something (arguably) unlawful (e.g. encouraging or assisting the supply of drugs). It would need to be shown that they intended that the unlawful activity would cause damage to the claimant or at least that this was a necessary means to some other end. It is not enough that it was a foreseeable consequence of the conspiracy. This might lead to claimants having difficulty in establishing this cause of action.

Limitation

Second, there is the problem of limitation. Each victim knew that they had been the subject of a “Fake Sheikh sting” at the date of publication. At that stage they knew all the relevant facts, so they cannot have time extended on grounds of concealment of activity (as phone hacking claimants have been able to do).

The time limit for an action in libel or malicious falsehood is one year, for actions which include claims for personal injuries it is three years, and for other torts it is 6 years.  A claim by Mr Alford would, for example, appear to be (at best) 13 years out of time.

There is a discretion to extend time for libel/malicious falsehood claims, and for claims for damages for personal injuries (see section 33 of the Limitation Act 1980), but persuading the court to exercise its discretion may be difficult. For those bringing any other kind of claim in tort the limitation problem is even more serious, as the court does not even have a discretion to extend time. Again, obviously, limitation issues do not arise in relation to the most recent stings.

Conclusion

Accordingly claims face significant challenges and much will depend on the detailed analysis of the facts in each particular case. On the other hand the potential rewards are enormous. In particular, it may be far more straightforward to recover large sums in special damages in these cases than in the phone-hacking claims. People like Mr Alford (whose careers sustained prolonged or permanent damage as a result of the stings) can plausibly argue that they lost many years of very substantial earnings as a result of Mr Mahmood’s activities.

Civil claims arising out of the activities of the Fake Sheikh are not straightforward.  In contrast to the phone hacking claims the problem is not showing that individuals were victims but in establishing a cause of action which is not time-barred.  Careful legal analysis will be required in every case.

Darryl Hutcheon is a barrister at Matrix Chambers specialising in employment law, media and information law and public law