January 17, 2022
Around 25 September 2019, the Trustees of the Exeter Mosque and Cultural Centre published a Notice on the noticeboard at the front of the Mosque and on its Facebook page and Twitter account, explaining that as from that date three individuals, two brothers and their father (the Abdulrazaq family), had been excluded indefinitely from the Mosque, its premises and facilities. The Abdulrazaq family were not named individually, but photographs of all three were fixed to the noticeboard.
The Notice referred to the unacceptable behaviour and malicious actions of the three individuals. It stated that they had shattered the peace, harmony and sanctity of the masjid, wasted resources, both financial and personal, and had caused non-Muslims to believe that the Mosque condoned terrorism.
In October 2019 the Trustees published and distributed a Leaflet, entitled “The Reason Behind the Exclusion Decision”, containing the same or similar words to the Notice, to the members of the Mosque as they were leaving Friday prayers. This time, however, the Abdulrazaq family were individually named.
The Abdulrazaq family issued defamation proceedings against the Trustees alleging that the words in the Notice and in the Leaflet had caused them serious harm and claiming aggravated damages. The family argued that there was no reason to publicise the reasons for their exclusion and that, in any case, the published reasons were not the true reasons, which were that the Trustees wanted to punish the family for having raised questions in relation to cash payments received by the Mosque from the Grand Mufti of Libya, Mr Al-Ghariani, who was said to have extremist links. The Trustees said they were legitimate payments from someone who had close links with Exeter having studied for his PhD at the university.
The Trustees applied to strike out the claim and/or for summary judgment on the grounds that their defence of qualified privilege either must succeed on the pleadings or raises no issue which has a real prospect of success. The Trustees argued that they had a legitimate interest in replying to public attacks made by the Abdulrazaq family against them and to explaining the exclusion decision by publishing their replies to the same audiences to whom the attacks were published, i.e., worshippers at the Mosque, the local media community and on social media (Reply-to-Attack Privilege) (as set out in Duncan & Neill on Defamation, 5th Edn). Further, they said that they had a social or moral duty in communicating the exclusion decision and the reasons for it to the Mosque’s membership, worshippers and community, which had a corresponding duty or interest to receive such communications (Duty/Interest Privilege) (Adam v Ward  AC 309).
Mr Justice Jay noted that there was no legal duty under the Constitution of the Mosque to publish reasons for an expulsion decision. However, as far as having a social or moral duty to do so was concerned, he found that right-minded people would believe that those responsible for running the Mosque were under a duty to explain to the congregation why they were excluding the Abdulrazaq family under clause 4.10 of the Constitution. Further, Jay J rejected the family’s submission that the Notice and Leaflet did not properly contain the reasons for the decision. They clearly did, and there was no basis for the contention that the Trustees had included irrelevant matters. The Trustees might have been wrong (in which case qualified privilege would still apply) or they might have been acting maliciously (in which case the privilege would be disapplied for other reasons), but it was clear that what the Trustees were trying to do was to explain their actions for the purposes of clause 4.10.
It was equally clear, Jay J said, that reciprocity of interest existed on the facts. The congregation had an interest in knowing why the decision had been made, and the Trustees had a corresponding duty to explain it. It was plain from the minutes of the meetings that the two publications were made in the context of the expulsion decision, and none other.
Jay J also rejected the family’s submission that it was unnecessary and inappropriate to publish the reasons on social media. Jay J said that: (i) the Mosque had a Facebook page and Twitter account; (ii) not all the congregants would have seen the Notice or Leaflet; and (iii) the Abdulrazaq family had itself used social media to get its message across.
Jay J concluded that the Abdulrazaq family had no real prospect at trial of resisting the application on this kind of qualified privilege.
Jay J noted that for this type of privilege to apply, the reply must be proportionate and not be made more widely than the original attack or include irrelevant statements (Bento v Chief Constable of Bedfordshire  EWHC 1525 (QB)). It must also be reasonable.
Jay J said that there was some force in the Abdulrazaq family’s argument that the Trustees were not in fact replying to any attack but justifying their decision. However, it was also true that a clear and unbroken thread could be traced through the documents, showing that the Trustees clearly believed that, given the Abdulrazaq family’s public attacks on them, they needed to be answered.
Further, Jay J rejected the family’s submission that the allegations of violence in the Notice and the Leaflet were in excess of the occasion of the privilege. Part of the Abdulrazaq family’s “attack” on the Trustees was that there was no basis for expelling them because the real wrong lay with the Trustees accepting the Al-Ghariani monies. For the Trustees to answer that “attack” by explaining that there was a basis, and giving details of it, i.e., that the family had acted violently, did not take the Trustees outside the scope of the privilege.
Jay J also rejected the family’s submission that its attacks were not defamatory. They were clearly defamatory and whether they were true was irrelevant.
Finally, Jay J rejected the family’s argument that the privilege did not apply to the Trustees, but to the family’s attack because the family had, as a result of letters sent from the Trustees on 9 September 2019 inviting the family to the 22 September meeting to discuss the expulsion, anticipated that they would be attacked. In other words, as far as the privilege was concerned, the family had got in first.
Jay J said that if the reply-to-attack principle does apply to anticipated attacks, there might be some force in the family’s argument. However, in his view, the family was not genuinely anticipating an attack. In the 9 September letters, the Trustees had simply invited the family to the Mosque for a meeting to set out their case. At that meeting, the family might have persuaded the Trustees not to expel them. Instead, the family had, on receipt of the letters and before the 22 September meeting took place, gone on the attack themselves by publishing and handing out leaflets against the Trustees to worshippers, and publicising their position through the media. In other words, they had launched a pre-emptive strike against an attack which might never have materialised. On these facts no privilege attached to the family’s publications.
Therefore, the Trustees’ defence of Reply-to-Attack Privilege succeeded.
Jay J noted that the Trustees could only avail themselves of the privilege defence if they could prove that they had not been motivated by malice and wished to injure the family defamed. The inference of malice would arise if it was proved that the Trustees did not believe the defamatory statement to be true or were reckless as to that fact. In addition, if it was proved that the Trustees were giving vent to personal spite and therefore misusing the privilege, then the defence would fail even if the Trustees positively believed their statement to be true.
In Jay J’s view, the evidence showed that the Trustees believed that they had a solid basis for expelling the family, not least due to the strife they had caused in the community and the bad blood between the parties. Further, the evidence on the funding did not show that that was what lay at the heart of the dispute and that that was the real reason for the Trustees’ actions.
The Trustees gave the reason for the expulsion as “your conduct, taken singularly and together, in the opinions of the Executive Committee and Board of Trustees, has adversely affected the standing and reputation [of the institution]”. The family’s argument that the Trustees either did not believe that this was true (or were reckless as to its truth) or were putting it forward as a smokescreen for the real reason for the expulsion was, in Jay J’s view, “a tall order”.
Accordingly, Jay J held that for the purposes of Part 24 CPR, the defence of qualified privilege had been made out and the reply of malice had not. Therefore, he held that the Trustees were entitled to summary judgment on the claim. (Tallha Basim Abdulrazaq v Shaheed Ul Hassan  EWHC 3252 (QB) (2 December 2021) — to read the judgment in full, click here).