High Court dismisses application for summary judgment and strike out, ruling on s 9 of the Defamation Act 2013 and the scope of “serious harm” under s 1

Following resolution in the courts of a bitterly contested family dispute over ownership of a house in London, the defendant, Suhad Subhi Sadik, sent to a WhatsApp group a photograph she had taken of the claimant, Riad Tawfiz Al Sadik, who was her brother-in-law, sitting with his wife and solicitor in a sandwich shop. The photograph was accompanied by messages in Arabic, which said, in short, that the photo showed the claimant plotting with his solicitor “how he can rob his brother’s house”, and that the claimant had lied under oath by swearing falsely on the Quran. The messages also said that he was “fighting to smash his brother”.

The WhatsApp group consisted of 34 people who were all members of the claimant’s wider family, all based outside the UK.

The claimant issued libel proceedings and the defendant applied to have the claim struck out and/or that she be granted summary judgment.

The defendant argued that that the court did not have jurisdiction to hear and determine the action by virtue of s 9 of the Defamation Act 2013 because at the relevant time she was domiciled outside the UK.

Mr Justice Knowles J disagreed with the claimant’s assertion that the defendant’s failure to follow the procedure for disputing the court’s jurisdiction, as set out in CPR Part 11, did not mean that her right to make a s 9 jurisdictional challenge had been waived. Section 9(2) is in mandatory form, he said. Therefore, jurisdiction under s 9 cannot be conferred by waiver, submission or consent. Section 9 concerns the subject matter of the suit and not the personal jurisdiction of the defendant. In other words, Part 11 covers matters of jurisdiction that are capable of being waived under the CPR. The CPR (which is a statutory instrument) cannot operate so as to confer jurisdiction on a court if, by statute, it cannot possess it.

The question was therefore whether the defendant could prove that the claimant had no realistic prospect of showing that the defendant was domiciled in the UK as at 26 September 2017 when the proceedings were issued.

In her evidence, the defendant described how the house in London (which had been the subject of the previous litigation) had been her “home” for around 25 years as at September 2017, even though from 1999/2000 she had also been resident in Kuwait, and that on 19 September 2017, although she was entitled to lawful possession of the house until 19 October 2017, she had moved out to live with her daughter nearby. Therefore, it was at least arguable that after 25 years or so of residence at the house, the defendant continued to be resident in, and have substantial connections with, the UK until at least the date she left for Kuwait, which was after the proceedings were issued. Essentially, Knowles J said that it was a matter for trial whether in the short period from 19 September 2017 (when she was unquestionably domiciled in the UK) to 26 September 2017, the defendant had ceased to be domiciled in the UK for the purposes of s 9 of the 2013 Act.

The defendant also argued that that there was no real prospect of the claimant showing that publication of the messages had caused or was likely to cause serious harm to his reputation under s 1 of the 2013 Act.

Knowles J referred to the Supreme Court decision in Lachaux v Independent Print Limited [2019] UKSC 27, in which it was found that s 1 of the 2013 Act requires serious harm in fact to be proved. Following the principles established in Lachaux, Knowles J found that the meanings attributed to the words by the claimant were obviously very serious: they were of dishonest conduct by him towards a family member and of lying on oath.

Further, he accepted that, because all of the people to whom the messages were published were Muslim, the allegation of having lied after swearing on the Quran was capable of exacerbating the extent of the harm suffered.

Whilst the scale of publication was comparatively small, it was not trivial and determining seriousness was “ … not a numbers game”. Further, there was evidence of wider dissemination of the messages beyond the WhatsApp group.

Overall, Knowles J was satisfied that the defendant had not shown that the claimant had no realistic prospect of showing that publication of the messages had caused the claimant serious harm, or that it was likely to do so.

Knowles J noted that, in Lachaux, Lord Sumption said that the absence of evidence of harm did not of itself mean a claim should fail, and he referred to the court’s ability to draw inferences and to the “inherent probabilities”. In this case, there was evidence of dissemination beyond the WhatsApp group to people who did not know the claimant, from which it could arguably be inferred that there would be some people in whose eyes the claimant had suffered serious reputational harm. The inherent probabilities were that there would be some people who would conclude that the defendant would not have made such widespread and serious accusations against her sister’s husband unless there was some substance to them.

Finally, the defendant argued that the claim should be struck out as an abuse of process pursuant to Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946.

Knowles J disagreed because: (i) the allegations in question were of a very serious nature; (ii) the claimant had a realistic prospect of showing serious harm; (iii) the claimant had a realistic case on jurisdiction; and (iv) there was evidence of “grapevine publication”. Therefore, the claimant had a realistic prospect of showing that he had suffered a real and substantial tort in this country. The application was dismissed. (Riad Tawfiq Al Sadik (Aka Riad Tawfiq Mahmood Al Sadek Aka Riad Tawfik Sadik) v Suhad Subhi Sadik [2019] EWHC 2717 (QB) (16 October 2019) — to read the judgment in full, click here).