Mueen-Uddin v SSHD

Reference: [2024] UKSC 21

Court: UKSC

Judge: Lord Reed (President), Lord Sales, Lord Hamblen, Lord Burrows, Lord Richards

Date of judgment: 20 Jun 2024

Summary: Libel – Hunter abuse – Jameel abuse – Rule in Dingle

Download: Download this judgment

Appearances: Jacob Dean (Appellant)  Lily Walker-Parr (Appellant) 

Instructing Solicitors: Carter-Ruck

Facts

The claim concerns a report published in 2019 by the Commission for Countering Extremism (an independent expert body appointed by the Home Office) entitled “Challenging Hateful Extremism”. In February 2021, Tipples J found the report to bear the meaning (in summary) that the Appellant (a British citizen who left Bangladesh after the War of Independence) was a war criminal. The Defendant has never retracted the allegations.

80 hard copies of the report were published and the online version was downloaded c.5000 times. The parties agreed that it may have reached over 900,000 followers of the Home Office’s social media accounts.

In November 2021, Sir Andrew Nicol struck out the claim as an abuse, relying primarily on the Appellant’s conviction in 2013 by a domestic tribunal in Bangladesh (“the ICT”) of war crimes allegedly committed in 1971. The ICT is widely criticised by human rights groups and others for failing to comply with international standards of fairness and independence. The Appellant was unable to attend the trial to defend himself without risking the death penalty but has always strongly protested his innocence and denounced the allegations by the Bangladeshi authorities as politically motivated.

The Appellant’s appeal against Sir Andrew Nicol’s decision to strike out his claim was dismissed in 2022 by a majority of the CA (Sharp P and Dingemans LJ). In a dissent, Phillips LJ described the approach of the majority as “unprincipled”, remarking that it would be “unfortunate” if the Appellant “having been denied a fair trial in Bangladesh in 2013 … was now prevented from having access to the courts of this jurisdiction”.

The Appellant appealed to the Supreme Court.

Issue

1. Whether a foreign criminal conviction which a claimant did not have a full opportunity to contest is a relevant factor in showing that English proceedings which require determination of the same issues as those before the foreign criminal court are an abuse of process.

2. Whether prior press publications of defamatory allegations are admissible (and conclusive) evidence of bad reputation on an application to strike out the claim if such publications have taken place some months prior to the publication complained of and are uncontradicted by a successful claim for libel.

3. Whether potential difficulties which the Respondent may have in proving the truth of the allegations which it had published about the conduct of the Appellant some 50 years ago are a relevant factor supporting a finding of abuse.

4. Whether a combination of partial aspects of the Hunter and Jameel abuse jurisdictions, none of which necessarily amounting to abuse on its own, can properly ground a finding of abuse of process.

Held

Appeal allowed.

Ground 1: Hunter abuse of process

The Hunter abuse of process doctrine prevents the initiation of proceedings for the purpose of mounting a collateral attack upon a final decision of a court of competent jurisdiction which the claimant had a full opportunity to contest: Hunter v CC of the West Midlands Police [1982] AC 529, 541, per Lord Diplock.

However, not every case involving a challenge to a previous conviction will connote an abuse and bring the administration of justice into disrepute. In respect of foreign convictions, the court must consider whether the claimant had a ‘full opportunity to contest’ the conviction in the court in which it was made (Hunter, p 541).

The present claim does not amount to a Hunter abuse of process because the Claimant did not have a full opportunity to contest his conviction: he was tried in absentia; he could not be expected to attend or appeal, since he faced a real risk of execution; he could not properly instruct counsel; and there were no clear grounds for an appeal, as he was debarred by legislation from relying on procedural guarantees contained within the Bangladesh Constitution, Criminal Procedure Code, or the Evidence Act. In any event, any appeal would have resulted in a retrial at which the rules of evidence would still be disapplied.

Ground 3: Manifest unfairness

The doctrine of abuse relates to the misusing of the court’s processes in a way which is manifestly unfair. It is not manifestly unfair to require a defendant to prove a claimant’s guilt to establish a truth defence, in circumstances where it chose to publish an historic allegation and the libel claim has been issued promptly and pursued expeditiously. Any evidential difficulties in proving the historical claim are not the claimant’s responsibility.

In other words: “If the Secretary of State is unable to establish the truth of the accusation which he chose to publish concerning the claimant’s conduct more than 50 years ago, he should have thought about that before he published the Report” [68].

Further, there was no evidence before the Court as to the evidence on which the Respondent intended to rely or its availability, so evidential difficulties were a matter of speculation.

The civil and criminal courts are frequently required to try cases over historical conduct, but fairness is guaranteed by the trial process.

Ground 2: Admissibility of prior convictions and publications in respect of bad reputation

The Court of Appeal erred in striking out the proceedings as a Jameel abuse for the following reasons:

(1) The Claimant’s reputation

Dingle
On the Appellant’s case, his reputation had not been damaged by newspaper articles published in 1971 or a Channel 4 programme in 1995 which repeated the allegation but contained his denial of the same.

The Court should not have taken into account prior defamatory statements made in 1971 or 1995 as both admissible and conclusive evidence of bad reputation, as such publications are inadmissible in mitigation of damages: Dingle v Associated Newspapers Ltd [1964] AC 371. “Nothing in Dingle supports the proposition that a previously published report becomes admissible evidence of bad reputation if it is months old and uncontradicted.” [97].

In any event, the Channel 4 programme had been contradicted by the issuing of proceedings in libel. Reputation would need to be proved in the conventional way, by the calling of witnesses who knew him and who could speak to his reputation.

Goody
The rule in Hollington v Hewthorn [1943] KB 587, that previous convictions are inadmissible as evidence of the offence in subsequent civil proceedings, applies to foreign convictions.

The rule in Goody v Odhams Press Ltd [1967] 1 QB 333, which held that evidence of previous convictions are admissible as evidence of bad reputation, requires qualification where the conviction is from a foreign court. The ordinary person is aware that criminal prosecutions and foreign trials are not always independent, impartial or procedurally fair. Further, in this case, if the Appellant establishes that he has been libelled by the report, it would be perverse to treat the fact that he was convicted by the ICT as diminishing the damages to which he was entitled.

(2) The identity of readers

The Court of Appeal erred in finding that readers of the report were individuals with an “unusually developed interest in ‘Challenging Hateful Extremism’ … and these are persons who are therefore overwhelmingly likely to have been aware of Mr Mueen-Uddin’s conviction by the [ICT] in Bangladesh and the contents of the Channel 4 Dispatches programme”.

Firstly, this reasoning relied on the prior publication of the same defamatory allegation and therefore ran contrary to the rule in Dingle, particularly in circumstances where (1) the Respondent’s allegations were said to give the claim greater authority and (2) earlier coverage reported the Appellant’s denial and referred to criticism of the ICT by human rights groups.

Secondly, the Court of Appeal’s assumption that everyone who read the allegation was already aware of it or that it had little impact on the Appellant’s reputation were matters that should be left to trial.

(3) The vindicatory effect of a successful action

The Court of Appeal erred in finding that these proceedings would not vindicate the Appellant’s reputation “because those who do not accept the result will point to the absence of relevant witnesses and evidence”.

The failure to accept the result in the eyes of some people is not a principled reason to deny the party the right to bring his claim to trial, and “right thinking members of society generally” (per Sim v Stretch [1936] 2 All ER 1237) might be thought to accept the outcome of court proceedings. Many court findings are accepted even where there is a shortage of documentary and witness evidence.

This finding was also unsupported by evidence.

To the contrary, success in this claim would reasonably provide major vindication to the Appellant’s reputation.

The Court of Appeal’s findings as to the likely costs, the court’s ability to fairly hear the Respndent’s defence, and absence of available witnesses and evidence were speculative and lacked evidential basis, particularly when there was no pleaded defence or outline of the evidence which would be available at trial.

Ground 4: Overlapping forms of abuse

The contribution of various factors which go to separate heads of abuse (in this case, Jameel, Hunter, cost and unfairness) cannot be “lumped together” as factors in an overall wider assessment of abuse of process, as each have different rationales. The adoption of this approach by the Court of Appeal was therefore unprincipled.

Further, as set out above, the reasoning in respect of each head of abuse was erroneous and cannot count against the Appellant when considering if the proceedings were an abuse.

Comment

In respect of Jameel abuse of process, the court clarified that:

(1) The Jameel jurisdiction was intended to be used to strike out claims in the absence of more than minimal damage, which would disproportionately infringe a defendant’s Art 10 right [81];
(2) Lord Phillips’ metaphor “the game was not worth the candle” does not require the court to weigh the value of a claim against the cost of the proceedings. Rather, it was intended to highlight the trivial nature of what is at stake, such that the action could not achieve, to any significant extent, the legitimate objective of protecting the claimant’s reputation [81];
(3) If a claim is invalid, it stands to be struck out under CPR 3.4(2)(a) [86]; and
(4) By reason of s.1(1) DA 2013, a libel claimant must prove that publication has caused or is likely to cause serious harm to their reputation. If there is no real prospect of establishing this, the appropriate response would be to seek summary judgment rather than strike out the claim [89].