Farhan Junejo v New Vision TV Limited

Reference: [2021] EWHC 2366 (QB)

Court: High Court (QBD)

Judge: Murray J

Date of judgment: 24 Aug 2021

Summary: Preliminary issue – whether publication occurred within jurisdiction – litigation bias – delay in issuing – destruction of records

Download: Download this judgment

Appearances: Jonathan Barnes QC - Leading Counsel (Defendant) 

Instructing Solicitors: Gresham Legal (Defendant)

Facts

NVTV is an English company that broadcasts television programmes in the UK on the Sky TV channel ‘New Vision’. NVTV has exclusive rights to broadcast content in the UK and EU produced by ARY News (‘ARY’), an Urdu news channel based in Pakistan. ARY produces bulletins for broadcast in Pakistan, which are “beamed” to the UK for broadcast on New Vision. Mr Alam, the Vice President (Operations) of NVTV, is responsible for ensuring that ARY’s content complies with licensing and editorial requirements in the UK.

C is a Pakistani and British national living in the UK. On 17 September 2018, C and his wife (Mrs Binnish Qureshi) were arrested by officers of the National Crime Agency. Both were released the same day and have never been charged. The arrest was a major news story in Pakistan. It was common ground that:

  • On 17 September 2018, NVTV broadcast various bulletins produced by ARY about the arrest which did not name C or his wife.
  • On 18 September 2018 at 04:20 BST, NVTV broadcast an ARY bulletin in which C was named in the text of the ‘tickers’, but not the audible part of the broadcast.

However, it was disputed whether NVTV had broadcast a further bulletin on 18 September 2018 at 2:12 GMT, which named C and made defamatory statements about him. NVTV accepted that at about that time ARY had broadcast a bulletin in Pakistan naming C (‘the Relevant Bulletin’), but denied that this was also broadcast in the UK. NVTV argued that Mr Alam had decided not to broadcast the Relevant Bulletin or name C or Mrs Binnish Qureshi on air, in accordance with NVTV’s ‘Broadcast Intervention Procedure’.

At an earlier preliminary issue trial, Nicklin J determined the natural and ordinary meaning of the words in the Relevant Bulletin, and ordered that the issue of whether NVTV published the Relevant Bulletin in this jurisdiction be tried as a preliminary issue. At the hearing, C adduced evidence from his wife’s cousin (Mr Durrani) that he had seen the Relevant Bulletin on New Vision on 18 September 2018 at 2:12 GMT. C had also intended to call his wife’s mother (Mrs Shaista Qureshi) to give evidence, but sought an adjournment on the basis that she was “traumatised” by the recent hospitalisation of Mrs Binnish Qureshi.

Issue

(1)  Should the hearing of the preliminary application be adjourned, either on the basis that Mrs Shaista Qureshi was not fit to give evidence or otherwise?

(2)  On the balance of probabilities, did NVTV publish the words complained of in this jurisdiction on 18 September 2018 at 2:12 GMT?

Held

(1)  No. It had already been agreed that Mrs Shaista Qureshi would give her evidence via live link from her home. An explanation and evidence were required as to why she was now unable to do so. In any case, C was able to attend and give evidence, was represented, and had another witness (Mr Durrani) who was available and able to give direct evidence on the key issue.

 As to C’s other grounds for seeking an adjournment:

(a) The additional disclosure provided by NVTV after the deadline could be dealt with by cross-examination and during submissions. The Court could consider the weight to be given to the additional evidence, bearing in mind the late disclosure.

(b)  C’s need to consider material that had been provided to him overnight by third party sources was not a proper basis to grant an adjournment.

(2)  No. Murray J accepted the evidence given by Mr Alam, Mr Abharani (Head of Transmissions at ARY) and Mr Siddiqui (Ticker Desk Controller at ARY) on the material elements of NVTV’s case. Namely:

(a) Mr Alam had given “clear and consistent evidence” about his instructions to ARY not to broadcast the Relevant Bulletin, which he took pursuant to NVTV’s written policy.

(b) There was no reason to doubt the accuracy of the channel logs (a chronological record of broadcast items) and “as run” logs (logs generated by the servers identifying what was actually shown on air). The channel log for 17 September 2018 was annotated with instructions such as: “advised no names to go on air” and “instructed not to mention names on-air”. The “as run” log on 18 September 2018 at 02:12 GMT stated that New Vision was on a “commercial/promo break”.

(c) Although NVTV had not been able to locate a recording of the broadcast at 2:12 GMT, the recordings that were available did not name C and were therefore consistent with NVTV’s case. Although C was named in the tickers shown at 4:20 GMT, NVTV had provided a plausible explanation for this (a technical error).

Second, Mr Durrani had most likely fallen prey to the unconscious influence of the pressure of litigation on his recollection: see R (Dutta) v GMC [2020] EWHC 1974 (Admin) at [39]-[40]. Mr Durrani’s evidence that “just after 2am… the news went crazy naming Farhan” was “implausible” – C’s name had been connected with the story on multiple Pakistani news sources available in the UK for several hours before that time. It is more likely than not that Mr Durrani became aware at some time on the evening of 17 September 2018 of the fact that C was being named on various Pakistani news sources available in the UK.

Third, assuming that Mr Durrani’s witness statement was referring to BST (which applied at that time) not GMT, the reference to “2am” in his witness statement was inconsistent with C’s case. C was alleging that the Relevant Bulletin was broadcast at 3:12 BST (2:12 GMT). However, Murray J noted that the question as to time zone was not put to C.

Fourth, although Mrs Shaista Qureshi was not available to give evidence, Murray J had read her witness statement and considered it unlikely that he would have reached a different conclusion with the benefit of her evidence. Her evidence was likely to have suffered the same effect of litigation bias as Mr Durrani’s evidence – especially as Mr Durrani and Mrs Shaista Qureshi were living in the same household and were both close relatives of C.

Comment

This decision serves as a reminder to potential claimants of the importance of preserving evidence at the pre-action stage. C gave evidence that at some time after 18 September 2018, he was sent a link to a recording of the NVTV broadcast at the relevant time, but that the YouTube link was later taken down. Claimants should consider taking steps to create a permanent record (for example, taking screenshots and downloading files), thereby eliminating the need to rely on online material which could be removed by third parties.

Similarly, the decision highlights the pitfalls of delaying pre-action correspondence in circumstances where records may be destroyed pursuant to record retention policies. The alleged broadcast took place on 18 September 2018, but C did not send a pre-action letter until August 2019. By this time, NVTV did not have a copy of the broadcast as its policy (in line with industry practice) was to only retain recordings of television programmes for 60 days.

Although the absence of a recording is not necessarily fatal to claimants, this decision illustrates the forensic difficulties of relying on alternative sources of evidence. For example, witness testimony may carry less weight due to the impact of litigation bias, as Murray J identified in this case.