On 16 October 2019, the judgment in Al Sadik (aka Riad Tawfiq Mahmood Al Sadek Aka Riad Tawfik Sadik) v Sadik ([2019] EWHC 2717 (QB)) was handed down.  The case concerned a claim in libel, which had been brought by a businessman and philanthropist against his sister-in-law.

Julian Knowles J dismissed the application for strike out or summary judgment.  In doing so, his Lordship provided guidance on the scope of the Defamation Act 2013, section 9; the effect of the Defamation Act 2013, section 1(1) following the decision in Lachaux; and the influence of grapevine publication on a Jameel strike out application.

Background

On the final day of an acrimonious property battle, the defendant encountered the claimant in Pret a Manger on Fleet Street.  She took a photo of the claimant and sent a series of messages to a WhatsApp group.  The group contained a number of the claimant’s close contacts, as well as other individuals.  The messages included accusations of lying under oath and failing to respect the sanctity of the Quran.

The claimant brought a claim and was granted default judgment, which was later set aside.  The defendant then brought an application to have the claim struck out or, in the alternative, to be granted summary judgment.

Judgment

The defendant brought her application on three grounds:

  • that the court had no jurisdiction to hear the claim because the claimant was engaged in so-called ‘libel tourism’, under the Defamation Act 2013, section 9;
  • the claimant had no real prospect of showing the words complained of met the threshold for serious harm, under the Defamation Act 2013, section 1(1); and
  • that the claim was an abuse of process, pursuant to Jameel v Dow Jones [2005] 2 WLR 1614.

Domicile

The claimant had attempted to argue that the defendant had waived her right to make a  challenge under section 9 because she did not make her application in the method prescribed by CPR Part 11.  However, Julian Knowles J clarified that jurisdiction under section 9 cannot be conferred by waiver, submission or consent

The question, the Judge clarified, was whether the defendant was a resident in the UK at the time the libel claim was issued; a question which was “all about the facts” (at [71]).  If, she had not been domiciled in the UK at the relevant time, as the defendant argued, the court would have no jurisdiction over the claim.

In the event, Julian Knowles J found that the defendant was resident, and continued to have substantial connections to, the UK.  Therefore, Julian Knowles J held, the defendant had failed to demonstrate that the claimant had no realistic prospect of showing she was domiciled in the UK on the relevant date.

Serious harm

The seriousness with which the impugned words were to be attributed had been considered by Nicklin J during the initial strike out application brought by the claimant.  Julian Knowles J agreed with the assessment of Nicklin J, finding that the allegations were of a very serious nature, taking into account the nature of the messages complained of, the audience of the messages and the scale of publication.  Therefore, Julian Knowles J held that the defendant had failed to show that the claimant had no realistic prospect of showing that the publication had caused him serious harm.

Jameel abuse

Having found that the allegations were of a very serious nature and that the claimant had a realistic case on jurisdiction, Julian Knowles J went on to find that the defendant had failed to demonstrate that the instant case was one of the exceptional instances where the Jameel principles applied.  He acknowledged that “budgeted costs area far in excess of the likely damages” (at [106]).  However, the value to the claimant of vindicating his rights could not be measured merely in pecuniary value.  Further, the claimant would receive a measure of vindication through a public judgment ([107] to [108]).

Comment

Of note in this case is the claimant’s attempt to argue that the defendant had waived her right to contest jurisdiction under the Defamation Act 2013, section 9 because she had failed to follow the correct procedure under CPR Part 11. As Julian Knowles J stated, Part 11 is concerned with issues of personal jurisdiction, such as whether a claim form has been served properly.  Conversely, section 9 “is concerned with the subject matter of the suit and not with personal jurisdiction over the defendant” (at [55]).

Further, the courts of England and Wales may still be the most appropriate place to bring a claim, despite the words complained of being published to an audience based predominantly outside of the UK.   Evidence of a defendant being domiciled in England and Wales at the relevant time will be persuasive on the matter of jurisdiction under section 9.

Also of note is Julian Knowles J’s approach to the question of ‘serious harm’ under the Defamation Act 2013, section 1(1).  As stated by his Lordship, the very serious nature of the allegations are likely to be at least capable of causing serious harm to reputation, especially in cases of “strategic targeting” (at [96]).  This will provide some additional clarity on the correct application of the principles set out by Lord Sumption in Lachaux v Independent Print Ltd [2019] UKSC 27.

Finally, as has been said elsewhere, the Supreme Court’s decision in Lachaux is likely to increase costs for litigating parties.  However, the increased cost will not prejudice a claimant subject to a Jameel strike out application.  Further, evidence of grapevine publication in this jurisdiction, whereby the message complained of is disseminated outside the initial audience, weighs heavily against striking out the claim on Jameel principles (at [105]).

Samuel Rowe is a student at the University of Oxford.