Court of Appeal upholds decision to strike out libel claim as an abuse

The Court of Appeal yesterday handed down judgment in Mueen-Uddin v Secretary of State for the Home Department, dismissing by a majority the appeal from the decision of Sir Andrew Nicol whereby he struck out the Appellant’s claims in libel and data protection as an abuse, pursuant to the principles in Hunter v Chief Constable of West Midlands [1982] AC 529 and Jameel v Dow Jones [2005] QB 946.

The Appellant fled Bangladesh in 1971 fearing for his life after the war of independence from Pakistan. He settled in the UK in 1972 and became a British citizen in 1984. He has held several important public positions; in various charities and in a senior role in the NHS.

He issued proceedings in libel and data protection over a statement in a report by the Commission for Countering Extremism held by Tipples J on 16 February 2021 to bear the meaning (in summary) that he was a war criminal.

Nicol J dismissed the claim as an abuse on 15 November 2021, relying primarily on the conviction of the Appellant by a domestic tribunal in Bangladesh in 2013 of war crimes allegedly committed in 1971. That tribunal had been the subject of serious widespread and high-level criticism in relation to its fairness and independence, including from the US Dept of State and the Bar Human Rights Committee. The Appellant has always strongly protested his innocence.

The Appellant appealed on a number of grounds, including that it was wrong to dismiss the claim as a Hunter abuse, in circumstances where the Bangladeshi tribunal had been subject to such sustained criticism and the Appellant had not been able to attend the hearing to defend himself without risking the death penalty.

The majority of the CA (Sharp P and Dingemans LJ) dismissed the appeal. Dingemans LJ gave the lead judgment, finding this was a case where Hunter abuse “overlaps” with Jameel abuse and setting out five factors which together in his view meant that the continuation of the proceedings would bring the administration of justice into disrepute and that they were not worth the candle of pursuing.

In a forthright 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”.

Jacob Dean acted for the Appellant, instructed by Adam Tudor, Helena Shipman and Amber Courtier of Carter-Ruck.