Full case report

Ahmed v (1) Express Newspapers (2) Associated Newspapers Ltd

Reference [2017] EWHC 1845 (QB)
Court High Court, Queens Bench Division

Judge Sir Michael Tugendhat (sitting as Judge of the High Court)

Date of Judgment 17 May 2017


Summary

Defamation – s.1 Defamation Act 2013 – serious harm – Jameel grounds – Strike Out CPR 3.4(2) – Summary Judgment CPR 24


Facts

C issued a claim against D1 and D2 for defamation in relation to two separate articles on the Mail Online website and on the Daily Star website. The articles concerned the conviction of 3 men at Manchester Crown Court on 29th January 2016 for an assault on a teenage girl. One of the men convicted and named had the same name as the Claimant (not the Claimant).  Both articles were illustrated in error with a photograph of the Claimant. Both publishers had swiftly removed the photograph  as soon as the error was pointed out and apologised.

On 4th June 2014, the Claimant had  in fact been found guilty by a jury of sexual assault by penetration on a pregnant 17 year old girl. He was sentenced to 3 1/2 years imprisonment.  The conviction was widely reported and the Claimant and his co-defendants had been described by the CPS as “nothing less than vicious sexual predators”. The conviction was not spent under the Rehabilitation of Offenders Act 1974.

At the date of publication, the Claimant was apparently out of prison. His evidence was that he was trying to put his past behind him, was a reformed character and had been accepted into his local community including the local mosque. His evidence was that prior to publication he had been given a second chance by his family and community and he had gained their trust back. Following publication, he contended friends and family had distanced themselves from him and he was the subject of verbal abuse in the street and at the gym. He said he had been prescribed anti-depressants and felt “emotionally ruined.”

D1 and D2 each (separately represented) applied to strike out the claim or for summary judgment. C contended the effect of the 2014 conviction and the issue of serious harm was a matter for trial.


Issue

Whether the claim should be struck out or summary judgment entered for the defendants on the basis that the Claimant had suffered no serious harm under s.1 Defamation Act 2013 by reason of his previous conviction.


Held

Granting the application and entering summary judgment for each Defendant:

  1. Following the approach to summary judgment set out in  Easy Air Limited v Opal Telecom Limited [2009] EWHC 339 (Ch), the real issue was the effect of the Claimant’s 2014 conviction.
  2. The conviction was less than 2 years before the publication complained of and it was not in dispute that it was the same order of gravity of the offence in respect of which he had been wrongly accused of in 2016.
  3. A defamation claim was concerned with damage to reputation and not with injury to feelings. Although a person who established damage to reputation may get increased damages for injury to feelings as well, the central question under s.1 related to injury to reputation and not to feelings.
  4. The Claimant could not realistically expect to achieve vindication in relation to the allegation complained of (applying King v Grundon [2012] EWHC 2719 QB). There was no prospect that the Claimant would be able to establish serious harm.

Comment

It has been held that a Defendant who makes an offer of amends is taken to concede that that the publication has caused serious harm: Undre v London Borough of Harrow (No.2) [2016] EWHC 2761 (QB) Eady J at [18] – [19]. For this reason,  a Defendant who contends that a publication has not caused serious harm is in difficultly when it comes to making an offer of amends in respect of a publishing error in this type of situation.

Warby J’s observed in Lachaux v Independent Print Ltd [2016] QB 402 at [66] that it would be usually be preferable for serious harm to be tried as a preliminary issue (rather than by way of a striking out or summary judgment application).  This is an example of a case where a direct application for summary judgment/strike out  was appropriate and avoided the time and costs of a preliminary issue.

In the light of the Claimant’s evidence that he had suffered harm in his local community, it was noted  in argument that  it was not enough for the words to damage the Claimant’s reputation to a limited class of people only: Lettham v Rank (1912).

The Claimant had argued in respect of costs that the parties should not have been separately represented as there had been overlap of argument; this was rejected by the Court.


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