The appeal will examine various aspects of the abuse of process jurisdiction, including: the scope of the Hunter and Jameel abuse doctrines; the applicability of (and exceptions to) the ‘rule in Dingle’; and whether it is fair to require a libel defendant to prove historical allegations.
At a two-day hearing on 1 and 2 November 2023, the Supreme Court (Lord Reed, Lord Sales, Lord Hamblen, Lord Burrows and Lord Richards) will examine whether the Court of Appeal was correct to strike out the Appellant’s libel and data protection claim as an abuse of process in Mueen-Uddin v Secretary of State for the Home Department. The hearing will be livestreamed on the UK Supreme Court website, here.
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 was a war criminal.
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.
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 now appeals to the Supreme Court. The appeal raises four issues of law, namely:
- 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.
- 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.
- 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.
- Whether a combination of partial aspects of the Hunter and Jameel abuse jurisdictions, none of which necessarily amount to abuse on its own, can properly ground a finding of abuse of process.