On 22 February 2024, Master Dagnall handed down judgment in Hawrami v Journalism Development Network Inc [2024] EWHC 389 (KB) in relation to an article (“the Article”) first published on 22 May 2021 by Journalism Development Network Inc and written by Mr Daniel Balint-Kurti and Mr William Jordan (“the Defendants”).

Dr Ashti Hawrami (“the Claimant”) had applied for summary judgment against the defence of qualified privilege advanced by the Defendants. The Master dismissed the Claimant’s application because the Defendants had real prospects of success in showing that qualified privilege attached to the Article.

Background

The Claimant is a British citizen and had various roles in the Kurdistan Regional Government (“KRG”) of Iraq. From May 2006 until July 2019, he served as Minister of Natural Resources and from July 2019 to early 2022 as Assistant Prime Minister for Energy Affairs [6]. The Article, entitled “The Rise and Fall of a US Oil Man in Iraq”, was published first on the First Defendant’s website on and from the 22nd of May 2021 (“the Original Version”). It was amended and further published on and from the 30th of August 2022 (“the First Amended Version”) and then further amended and further published on and from the 12th of September 2022 (“the Second Amended Version”).

The Claimant commenced proceedings on 19 May 2022 against the Defendants alleging that the Article contained defamatory meanings [2]. The Claimant asserted that the meaning of the Article was that the Claimant, whilst serving as Minister of Natural Resources had, inter alia, granted in November 2007 a highly lucrative contract to Gulf Keystone Petroleum Limited (“GKP”) because of a secret, corrupt and illegal agreement (“the Representation Agreement”) entered into between Mr Todd Kozel (“Kozel”) of GKP and the company of Mr Izzeddin Berwari (“Berwari”) (a member of the governing Kurdistan Democratic Party (“KDP”) politburo and a high level and senior public official with connections to the Prime Minister of the KRG), whereby potentially huge revenues from the oil concession would be paid by GKP in kickbacks to Berwari’s company for securing the Shaikan Production Sharing Contract (“PSC”) for GKP [18].

The Defendants had raised various defences, one of which is that the Article was a fair and accurate report of certain legal proceedings known as “the Excalibur Litigation” so as to attract qualified privilege under section 15 and paragraphs 2 and 5 of Schedule 1 of the Defamation Act 1996 (“the 1996 Act”) [20].

The Excalibur Litigation concerned claims brought by an entity, Excalibur Ventures LLC (“Excalibur”) which asserted that it had been wrongfully excluded by two other entities, Texas Keystone Inc. (“Texas”) and GKP from interests and profits in relation to oil exploration in Iraq, and, in particular, a Production Sharing Contract(s) between Gulf Keystone Petroleum International Limited (“GKI”) (a subsidiary of GKP) and the KRG relating to four oil blocks being known as Shaikan (the relevant contract being “the Shaikan PSC”) [7]. The Excalibur Litigation resulted in a written judgment (“the Excalibur Judgment” and, along with the Transcript, the “Excalibur Material”) delivered by Christopher Clarke LJ dated 13 December 2013 ([2013] EWHC 2767) [8]. At the relevant time, the Kurdistan Democratic Party (“KDP”) was the effective ruling party of the KRG which governed the Kurdish controlled areas of Iraq. In November 2007, the KRG entered into the Shaikan PSC with GKI which granted oil concessions including the Shaikan block. GKI was controlled by Kozel and was “the US Oil Man” referred to in the title of the Article [10-11].

The Claimant argued that the Defendants had no realistic prospects of establishing that qualified privilege attached to the Article and accordingly sought summary judgment against that single defence [3].

Qualified privilege under the 1996 Act

 The relevant parts of the 1996 Act are as follows:

“15 Reports, &c. protected by qualified privilege.

(1)  The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows. …

Schedule 1 Qualified Privilege

Part I Statements having qualified privilege without explanation or contradiction

    1. A fair and accurate report of proceedings in public before a court anywhere in the world. …
    1. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.”

Judgment

The Claimant argued (1) the qualified privilege defence could not be raised at all and (2) that, even if it could be raised, the Article was not a fair and accurate report of the Excalibur Litigation.

Could the qualified privilege be raised?

The Claimant contended that, as a point of principle, a defendant could not raise a qualified privilege defence of “fair and accurate reporting” of a subject matter, such as the Excalibur Judgment, which was itself not defamatory of the claimant. For this situation to occur, there must be reporting which is not “fair and accurate”; otherwise the report would not include defamatory material. In those circumstances the qualified privilege argument can never succeed as a defence because either there is no claim (because there is no defamatory meaning in the Article) or no defence (as if there is a defamatory meaning in the Article the reporting cannot be “fair and accurate”); and therefore the qualified privilege defence has “no real prospect of success” and summary judgment should be granted against it [36].

The Master rejected this argument for the following reasons. First, following Curistan v Times Newspapers [2009] QB 231, qualified privilege operates so that the relevant privileged words are ignored for defamation purposes, at least as far as meaning is concerned, except insofar as they provide context for non-privileged words [56]. Thus, qualified privilege is a matter which has to be dealt with before meaning can be considered. That is because the meaning which the court is to arrive at is of words other than those protected by qualified privilege (but in the context of those privileged words having been used). Therefore, the question of what is subject to qualified privilege could not be ignored simply because (which was the Claimant’s contention) it was common ground that whatever may turn out to be subject to qualified privilege is not itself defamatory. If qualified privilege is simply ignored, the question of meaning cannot be properly considered [57].

Second, the Claimant’s argument ignored how this type of qualified privilege operates, which grants protection to words used as long as they constitute a fair and accurate report of protected subject matter. As long as the reporting is fair and accurate, the use of the relevant words cannot find any claim in defamation i.e. they are simply to be ignored as if they had not been said (except insofar as they provide context for other non-privileged words; and which otherwise might have their meaning distorted if that context was to be ignored). The consequence of this is that qualified privilege is not necessarily best termed as being a “defence” to a claim in defamation. Rather it is more of a (disruptive) response to an asserted claim in defamation in the form of a right which prevents the claimant from relying upon the relevant words to find the claim itself. It does not matter whether the privileged words used are defamatory or not, they simply cannot be used to ground a claim (except by way of providing context to other words or where an exception e.g. malice, applies); and the privilege operates to limit what the claimant can rely upon. The Master observed it would be better to categorise qualified privilege in this context as being an “issue” (both generally and for the purposes of CPR24.3) rather than a “defence” [58-59].

Third, the Master disagreed with the Claimant’s logic so as to conclude that the ostensibly reported words can only matter if they contain defamatory material.  It was perfectly possible, and was effectively contemplated in Curistan, that if the privileged words are merely treated as context, the non-privileged words will be insufficient to give rise to a particular (and perhaps any) defamatory meaning while, if the privileged words had been considered with the non-privileged words, they would give rise to a particular combined meaning(s) which would have been defamatory [61].

Drawing these strands together, the Master held that both principle and authority required the court to determine what in the Article, if anything, is subject to qualified privilege so that it can then effectively be removed from the case against the Defendants (except by way of giving context to non-privileged words), at least as to meaning, and so that meaning can then be determined on that restricted basis.It did not matter for these purposes whether that removed material is defamatory or not defamatory either in itself or with (save for giving context to) the non-privileged material; it is simply to be so removed from such consideration (except for giving context) [65]. Accordingly, the Defendant’s qualified privilege defence, or “issue”, did arise the Master was required to determine whether it had any real prospect of success [67].

Was the Article a fair and accurate report of the Excalibur Litigation?

The Master set out the approach to determining whether a report was “fair and accurate” for the qualified privilege defence as follows [71]-[72]:

  • The report (per Curistan at [26]):

a)  Can (but need not) be verbatim, and

b)  Can be selective and concentrate on one (or more) particular aspects, but

c)  Must report fairly and accurately the impression that the reporter would have received as a reasonable spectator in the proceedings;

  • Fairness means “fairness in terms of presentation” (per Curistan at [27]);
  • Fairness will be lost if “there is a substantial or material misstatement of fact which is prejudicial to the claimant’s reputation” (per Curistan at [27]).
  • Qualified privilege can be lost as a result of “intermingling” of extraneous material which is not privileged, i.e., where a publisher has “produced a critically different text”.
  • However, the mere addition of non-privileged material is not itself enough to defeat qualified privilege, as Curistan itself decided that there can be both privileged and non-privileged material and that the non-privileged material can itself be defamatory.

The Master commented that this approach can give rise to potential difficulties in situations where, as in the present case, the published Article (i) included elements which purported to be or are part of a report of some Excalibur Material (ii) included different sections which contain different elements of what is said to be Excalibur Material each with other material and (iii) had some sections which were wholly distinct from the Excalibur Material [73].

The Master held the correct approach was to divide up the Article and analyse each section of the Article separately to see whether it contains a fair and accurate report, but only when there is a clear division [74]. As to determining whether intermingling had occurred, this is a fact-sensitive evaluation, but the court must construe the publication (here the Article or a relevant section) to ask itself as to what is said objectively (expressly or impliedly) to be “the report” and then to consider whether that is “fair and accurate” [75].

However, the relevant extra or incorrect material must be something of substance; the inclusion of something immaterial would not affect overall fairness and accuracy [75]. In this regard, the Master gave some helpful examples of intermingling [76]-[78]:

“To write that “the judge said [something of substance which the judge did not say]” would be an “intermingling” as it purports to be part of the report and has rendered it such that it is not fair and accurate, but to say (correctly) “the judge said X” and to add “but which was not covered in the court case, event Y also happened” would probably be a clear distinction and not an “intermingling” although the latter statement might be defamatory in its own right.

A commentary might be seen to amount to a precis of what the judge had said or a modification to what would otherwise have been the meaning of words which did record accurately what the judge had said (e.g. perhaps, a headline to an article of “judge finds X to have lied” when the (accurate) text of the article was merely that the judge had held that there had been an innocent mis-statement), and so as to be an “intermingling” which, because it was incorrect, destroyed the fairness and accuracy of the report.

However, some headlines or commentaries might clearly not be part of the report. For example, “disgraced politician has their divorce case heard” might leave a clear boundary between the “disgraced politician” statement and what was being reported about their divorce litigation. In Amunwa (see above), Warby J clearly regarded the inclusion of an implied statement (the claimant was guilty of professional misconduct) by way of “manifest commentary” on material which was a fair and accurate report of the privileged judgment, as separate from the “report” and not affecting the existence of the Qualified Privilege.

Having set out this approach, the Master turned to the Article itself and held that it was “fair and accurate”. The Master’s analysis proceeded by reference to the claimant’s various points as to why it is said that qualified privilege did not exist. The most important are as follows:

First, the claimant argued that the Article referred to the Representation Agreement being a vehicle to “kickback” huge revenues to an Iraqi Kurdistan politician’s company. It was said that the Excalibur Material did not justify such a statement as “kickback”, which has connotations of illegal, corrupt and secret payments [84]. The Master rejected this argument. The Article did not state that the Excalibur Judgment used the words “kickback”. Rather the words “kickback” were, at least arguably, simply a characterisation by way of manifest comment on those facts, which were contained in the Excalibur Judgment, as they were stated in the Article [87].

Second, the Article referred to the Representation Agreement being deemed illegal and cancelled shortly before the coming into effect of the UK Bribery Act. The claimant argued that it was implied that this was done to avoid the consequences of the Bribery Act; and that no reference was made in the Excalibur Judgment to the Bribery Act at all [89]. The Master found no such implication. It was not clear that the Article was suggesting that the Excalibur Judgment stated either expressly or impliedly that there was any such connection. This was a “manifestly” comment and not something which was said to have been stated in the Excalibur Material.

Third, the claimant argued that the Article did not state that the parties to the Excalibur Litigation had all agreed that the Claimant was “a man of integrity” (per [360] of the Excalibur Judgment). The Claimant said that the Article had the meaning that the Claimant was not such a man of integrity and that these omissions rendered the report not “fair and accurate” [96]. The Master rejected this for the following reasons [97]: (1) the Article was not about the claimant but rather about Kozel and GKP’s activities. Thus a “fair and accurate report” does not necessarily require anything to be said about the claimant at all; (2) the argument depended upon the Article having the meaning that the Claimant was not a man of integrity, otherwise the omitted material was of no real relevance or importance. However, that would come very close to reaching the Master’s own meanings determination which the Master was not permitted to do on a summary basis regarding the qualified privilege defence; (3) even if the Article had the asserted meaning, it was not clear that this meaning was derived from the elements of the Article which purported to be from the Judgment.

However, the Master found there was no qualified privilege concerning the following paragraphs of the Article:

“37.  Hawrami knew the oil law well, as the official responsible for pushing it through Iraqi Kurdistan’s parliament in 2007. Despite the conclusion that the Representation Agreement was illegal, the Kurdistani government did not cancel Gulf Keystone’s oil production deal as required by law.”

“38.  Instead, in August 2010, Gulf Keystone and the government signed an amended contract that included a new anti-bribery clause, which explicitly stated that no public or party official was being paid as part of the agreement.” [103]

The Master found this was not a “fair and accurate report” of the Judgment when the essential underlying statement i.e. that there was a legal requirement on the claimant to cancel the Shaikan PSC, did not appear in the Excalibur Material and, further, the Article did not say what the Judgment did state that the Claimant had done in the circumstances for the benefit of KRG i.e. ensure that the benefits under the Representation Agreement went to KRG (and not to GKP/GKI) [106].

Yet this finding did not mean that the entire Article lost qualified privilege, which had to be viewed holistically.  Those passages did not taint the remainder of what was said to be a report to render the remainder not a “fair and accurate report”. The other elements of the “report” within the Article were distinct [112].

Comment

This judgment provides a useful reminder of the operation of the qualified defence and, in particular, the critical distinction between words that comment on the judgment and words that purport to report the judgment itself.

The judgment also provided a helpful comment on the interaction between qualified privilege and meaning. The Master opined that Curistan may not be inconsistent with the longstanding principle that a publication only has one meaning. There has been a concern that the Curistan analysis of qualified privilege enables a publication to have one set of meanings if the privileged words are taken into account and a different set of meanings if they are not. Yet, rather than an invasion into a long-standing principle, the qualified privilege defence creates a statutory deeming, in effect, that, at least as far as the meaning of the publication is concerned, certain words have not been used (except that they supply context). Meaning is only to be derived from the remainder (see [63]).

Conor Fenton-Garvey is a pupil barrister at Quadrant Chambers.