Mahfouz and another v Brisard & another

Cs alleged that they had been defamed in a book written by the Ds which reported that they had supported terrorism. D2 never acknowledged service. D1 did so and denied responsibility in law for publication to readers in England and Wales since, although he entered into a contract in October 2002 authorising his French publisher to put into circulation the French edition and any translation anywhere in the world, there was a second contract in March 2003 between the French publisher and a US publisher excluding publication in the UK. At an earlier hearing Tugendhat J heard and ruled that the contracts provided no basis for a defence: [2005] All ER (D) 174 (Sep). Cs applied for summary disposal under ss8-10 Defamation Act 1996.

(1) Whether the Cs were entitled to summary disposal

(2) If so, whether the Cs were entitled to all the remedies under the summary disposal procedure.

(1) Cs were entitled to summary disposal since there was no defence to the claim which had a realistic prospect of success and there was no reason for a trial. The submission that it was in the public interest for the public to see and hear from individuals who seek to vindicate their reputations in this country was rejected in the circumstances of the case.
(2) Whilst the Cs were entitled to the maximum award of £10,000 damages, an injunction and an order from the Court for the Ds to apologise it was not appropriate for the Court to make a judicial declaration of falsity where the publication was so limited: Jameel v Dow Jones followed.

This judgment is important for the Court’s reluctance to make a declaration of falsity. In an action concerning an internet publication involving the C1 and D1 Eady J made a declaration of falsity: [2004] EWHC 1735 (QB). However, after the Court of Appeal expressed reservations about whether a Judge could properly do so in cases involving allegations of terrorist funding in Jameel v Dow Jones at §67, Gray J declined to do so here.