On 23 July 2020 Master Dagnall gave judgment on the assessment of damages in libel proceedings brought by the leader of the Tunisian opposition party Ennahdha and speaker of the Tunisian parliament Rached Ghannouchi.

The judgment was against Middle East Online Limited, a company responsible for the publication of an online news website publishing news items in English and Arabic, and its editor ([2020] EWHC 1992 (QB)). Mr Ghannouchi was awarded libel damages of £45,000, in addition to his legal costs.

Background

The claim related to an article published by the Defendants on 5 July 2019, the text of which is reproduced in full in the judgment ([8]). The article made very serious allegations relating to terrorism and permitting receipt of foreign funding. Its meaning, as set out in the Particulars of Claim (which was effectively not contested by the Defendants), was that:

i) (by their natural and ordinary meaning) the Claimant:

    1. had knowingly permitted the corrupt receipt by his party, Ennahdha, of money from the state of Qatar, thereby facilitating Qatar to exert improper influence over Tunisian politics; and
    2. falsely pretends to believe in democracy, but leads a party which is a front for a terrorist organisation, and which tolerates, encourages and actively supports terrorism both in Tunisia and abroad.

ii)   (by way of an innuendo) the Claimant had breached Tunisian law by knowingly permitting the receipt by his Ennahdha party of money from the state of Qatar. The particulars of claim specified that it is contrary to Tunisian law for a political party to accept any donations from foreign sources, and that there would be and have been a substantial number of readers who would have known that.

The Defendants had not approached the Claimant prior to publication, and failed to engage with the Claimant’s pre-action correspondence. Following the sending of various chasers, the Claimant issued and served proceedings on the Defendants in early December 2019. The Defendants failed to engage with the proceedings and to file and serve a Defence.

In the circumstances, the Claimant issued an application for default judgment. An order for default judgment was made on 24 April 2020 by Mr Justice Nicklin, following which the article was taken down from the First Defendant’s website. The order granted the Claimant default judgment, recorded the Defendants’ undertakings to the Court not to republish the same or similar allegations about the Claimant, and order the Defendants to publish a statement pursuant to section 12 of the Defamation Act 2013. It also provided for damages to be assessed by a Master at a further hearing.

The assessment of damages hearing took place remotely, under the provisions of Practice Direction 51Y on video or audio hearings during the coronavirus pandemic, on 10 June 2020.

Judgment

The Master recognised that it was common ground between the parties that the article bore the meanings as pleaded. However, he considered in detail the proper construction of the meaning set out at i)b) above, which strictly speaking makes allegations of terrorism as against  the Claimant’s political party Ennahdha and not against the Claimant himself. However, this was in circumstances where “the Claimant is the leader of Ennahdha, the “but” is linked grammatically with his stated “falsely pretends to believe in democracy” and the general tenor of the Article” ([20]) suggested that “something further might be implied within the words of the Defamatory Meaning regarding the Claimant himself and his views and conduct in relation to terrorism” ([21]).

In the light of Counsel’s supplemental submissions, he concluded that:

“the reasonable reader would understand the Article as meaning that the Claimant was deliberately shutting his eyes to the facts that his party was a front for a terrorist organisation and tolerated, supported and encouraged terrorism, and, which follows from such “Nelsonian blindness”… that the meaning does extend to that the Claimant knew and appreciated that such facts might well be the case and ought to be investigated but was deliberately choosing not to do so (and thus not to do anything about it)”.

The Master then considered damages.  The judgment ([33] to [44]) contains a useful summary of the relevant authorities and the applicable framework, including in situations of limited publication such as this one (a little less than 200 readers of the article in total in this jurisdiction: see [51]).

In assessing the damages in the sum of £45,000, the Master took various factors into account:

  1. The extent of publication and the issue of percolation. In relation to this, he remarked that although publication had been limited, “allegations of this nature are likely to be repeated even in only a very inchoate way and without reference to the original Article of itself or its specific content”, particularly in the modern world of the Internet ([52]).
  2. The extent and duration of publication, including the fact that the Defendants did not take down the article until the sealing of the Order of Mr Justice Nicklin, 8 months after the initial publication, notwithstanding the fact that this order was dealt with by consent ([54]).
  3. The absence of any apology given by the Defendants to the Claimant, including at the assessment of damages hearing ([55]), counterbalanced by the Defendants’ agreement to publish summaries of the default judgment and the assessment of default judgment pursuant to section 12 of the Defamation Act 2013 ([56-57]).

The Master made it clear that the Second Defendant’s attempt to introduce “a number of matters relating to the Claimant’s general reputation and attacks being or to be made upon him and questions to be levelled at him by his political opponents and others interested”, remarking that

“While a general poor reputation may be relevant to mitigate damages, instances of specific misconduct (even were they alleged, and I do not think that they are, or proved, and which they are not) cannot (see paragraph 21e of Barron v Vines and paragraph 30 of Woodward v Grice)”. [61]

He arrived at the sum of £45,000 after having looked at a number of comparators, set out at [65] to [71].

Comment

This decision is a useful reminder of the principles applicable to the assessment of damages, and a good indicator of the level of damages which one can expect to recover in relation to serious allegations published to a small overall readership.

As the Master remarked, the overall sum of £45,000

“reflects both the seriousness of the defamations and the distinctly limited (in comparison with the other cases) readership while providing a “headline” figure which should make clear the vindication of the good name of the claimant to bystanders who read the summaries (or this judgment) as well as compensating him for damage to his reputation and taking account his distress, hurt and humiliation.”

Mathilde Groppo is an Associate at Carter-Ruck