Case No: JS/03/0042
Neutral Citation No:  [2003] EWHC 552 (QB)
 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17 March 2003

Before:

THE HONOURABLE MR JUSTICE GRAY
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Between:

	Mr Rashid Ghannouchi	Claimant/
Respondent	
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	Houni Ltd & others	Defendants/Applicants	

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Mr Desmond BROWNE QC and Mr Stephen SUTTLE 
(instructed by Peter Carter Ruck & Partners) for the Claimant/Respondent
Mr James PRICE QC and Mr Justin RUSHBROOKE 
(instructed by Farrer & Co) for the Defendants/Applicants

Hearing dates: 13/17 March 2003
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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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The Hon. Mr Justice Gray

Mr Justice Gray: 

1.	In this libel action Mr Rashid Ghannouchi, who is the leader of a political movement in Tunisia, complains about an article published in the issue of a newspaper called “Al Arab” on 3 January 2002.  The Defendants are respectively the printer, the editor-in-chief and the publisher of that newspaper.  The newspaper is published in Arabic and circulates both in Arab countries and in Europe.
2.	In order to deal with the application which is before the court it is necessary to go into the history of the litigation.  It is alleged in the particulars of claim that the article complained of bears the defamatory meaning that the Claimant and the political movement of which he is the leader are closely and strongly linked to the extreme and violent terrorist organisation Al Quaeda and to its leader, Osama bin Laden, generally regarded as having been responsible for the terrorist attacks on the World Trade Centre on 11 September 2001 as well as other terrorist acts.  A further defamatory meaning relied on is that the Claimant and his political movement are also closely linked to a violent and dangerous international terrorist responsible for terrorist bombings and assassinations in Tunisia.
3.	The substantive defences relied on in the Defence which was served on 28 October 2002 are justification and qualified privilege.  The meaning sought to be justified by the Defendants is that there exist reasonable grounds to suspect that the Claimant is linked, through his political movement, with Osama bin Laden and/or his Al Quaeda terrorist network.  Particulars are pleaded in support of those meanings.  The particulars include at paragraphs 7.11 reliance on what are said to be the Claimant’s revolutionary Islamic views and support for the use of violence, evidenced by statements said to have been made by the Claimant in 1990, 1991 and 1994.  Most of the particulars of justification are repeated in support of the plea of qualified privilege.  
4.	Paragraph 11 of the Defence gives notice that the Defendants will rely in extinction, alternatively in diminution, of damages on
i)	the facts and matters pleaded above by way of justification.
ii)	the fact that the Claimant has a general bad reputation amongst readers of the words complained of as an extreme Islamic fundamentalist who inspires and/or condones acts of Islamic terrorism, especially those acts committed in Tunisia and against Israel and its allies.  As well as adducing evidence of general bad reputation at trial the Defendants will in particular rely on the reputation created for himself by the Claimant by his public statements on the subject of Israel and the west: see above.
5.	The Reply contains a detailed rebuttal of the matters relied on in justification and in support of the plea of privilege.  There is also a charge of malice against the Defendants.  
6.	A number of interlocutory applications made on the basis of pleadings in the terms I have summarised were dealt with over the months.  By application notice dated 10 March 2003 the Claimants sought an order pursuant to CPR Part 3 and/or Part 24 which was effectively for the striking out of the defences of justification and qualified privilege.  It is not necessary to go into the detailed arguments advanced on behalf of the Claimant in support of that application because on the evening before it was due to be heard (that is on 12 March 2003) the Defendants indicated through their skeleton argument that they did not oppose the application to strike out those defences.  
7.	However, the Defendants’ skeleton argument went on to make clear that they would seek to contest the basis on which the Claimant was presenting himself and his political movement to the court and the basis of his claim for damages as pleaded in paragraph (1) of the Particulars of Claim and in the Reply.  That basis was, according to the Defendants, that the Claimant and his political movement are committed to the democratic process, the protection of human rights and the bringing about of peaceful, as contrasted with revolutionary, change in Tunisia.  The Defendants further extended to the court an invitation to decide, as a matter of case management, the extent to which it would be legitimate for evidence to be adduced in support of the Claimant’s allegation that the Tunisian regime is “autocratic”.  Finally the Defendants gave notice that they would seek permission to replace paragraph (11) of the Defence, quoted earlier, with a paragraph in the following terms:
“11.  Further or alternatively, the Defendants will rely in extinction, alternatively in diminution of damages, on the bad reputation created by the Claimant for himself by his own public statement and on such facts and matters as the Defendant may establish at trial as controverting the Claimant’s portrayal of An Nahda (and its predecessors) as a moderate political movement and of himself as a political moderate, a man of peace and a supporter of democratic governance.”
8.	Mr Browne QC for the Claimant was naturally content that the defences of justification and qualified privilege should disappear from the case.  He was also content that no evidence should be led as to the allegedly autocratic nature of the Tunisian regime.  He did, however, oppose the application to substitute the new paragraph (11) quoted above.  He did nonetheless indicate that, subject to instructions from his client, he would seek to alleviate the concerns felt by the Defendants as to the basis on which he was said to be presenting his claim in paragraph (1) of the Particulars of Claim.
9.	Having taken instructions, Mr Browne submitted a proposed re-draft of paragraph (1).  In its original form that paragraph read:
“The Claimant, who is Tunisian, is leader of An Nahda (‘renaissance’), a moderate Islamist political movement which supports democracy and represents the principal focus of independent opposition to the autocratic regime which currently holds power in Tunisia.  The Claimant has for more than ten years lived in exile in the United Kingdom, where he has been granted political asylum with indefinite leave to remain”.
10.	The alteration proposed to that paragraph was the deletion of the reference to the Claimant’s political movement as being “moderate”; the deletion of the claim that it “supports democracy and represents the principal focus of independent opposition to the regime”, saying instead merely that it is opposed to the regime and the deletion of the epithet “autocratic” applied to the regime in Tunisia.  The consequence of these alterations is, according to the Claimant, that much of paragraph (2) of the Defence and paragraphs 2-9 and 40 of the Reply fall away.  Mr Browne indicated in addition that he would, given time, make consequential deletions to his client’s witness statement.  The question which I have to decide is whether, on the footing that the Claimant revises the basis on which he presents his case in the manner just indicated, the Defendants should be permitted to rely on paragraph (11) in its proposed substituted form.
11.	Recognising no doubt that it is not clear on the face of the revised pleading what “facts and matters... the Defendant may establish at trial”, Mr Price QC for the Defendants indicated that he would seek to cross-examine the Claimant on the following topics:
a)	some of his public pronouncements (copies of which have been disclosed).  These include the 1990, 1991 and 1994 speeches to which I have referred.
b)	aspects of the history of the An Nahda movement (largely drawn from a published work an An Nahda insider and former activist).  I should mention that Mr Price made clear that those aspects would include the fact that the movement has a military wing and that it has been involved in an armed coup;
c)	the defection of the Claimant’s co-founder of An Nahda and two other leaders of the movement on the publicly stated basis that the Claimant and his movement had “chosen to resort to violence”.  I was told that it would be put to the claimant that the violence consisted of a fatal arson attack carried out in Tunisia;
d)	the fact that the Claimant was not permitted to remain in France and was denied entry to the USA and Canada;
e)	the Claimant’s being provided with a diplomatic passport by the Sudanese government, then a fundamentalist Islamic military dictatorship.  Mr Price indicated that the significance sought to be attached to this was that shortly after the issue of the passport Sudan had provided asylum for Osama bin Laden.  IT is unclear to me what, if any, inference the jury would be invited to draw from this;
f)	the claimant’s connections or possible connections with an unidentified Palestinian Islamic Jihad leader currently under indictment in Florida on terrorist charges; and
g)	possibly on short other points.  
It was claimed by Mr Price that this cross-examination might be expected to last about half a day.
12.	It was pointed out on behalf of the Claimant that, notwithstanding the reference to “diminution of damages”, the proposed substitute paragraph (11) (unlike its predecessor) does not on its face purport to be a claim in mitigation of damages on the ground that the Claimant has a “general bad reputation” of the kind considered in Scott v. Sampson [1882] 8 QBD 491.  In the first place there is no reference to the Claimant’s general bad reputation and, secondly, it is not made clear what is the nature of the reputation said to have been created.  Nor do the Defendants have any evidence to support a case of general bad reputation.  I understood Mr Price to accept the validity of those criticisms.  He did not seek to argue that the matters intended to be put to the Claimant in cross-examination went to his general bad reputation.  Instead, Mr Price contended that the material was admissible by virtue of the decision of the Court of Appeal in Burstein v. Times Newspapers Ltd [2001] 1 WLR 579.  
13.	The issue in that case was whether certain material relating to the earlier activities of the Claimant could be placed before the jury despite the fact that it could not properly be pleaded by way of justification.  The Judge ruled that the material was inadmissible by virtue of the rule in Scott v. Sampson.  May LJ, having indicated that the question which the Judge had to consider was essentially a procedural case management question, went on to say this at paragraph 42:
“In my view, permitting the Defendants to rely on the directly relevant background context in the way in which I have described would not offend anything said in Scott v. Sampson or Speidel v. Plato Films Ltd [1961] AC 1090.  The material to which I have referred as directly relevant background context was, as I have indicated, recognised in Speidel v. Plato Films Ltd as being admissible as the circumstances in which the publication came to be made…  For practical purposes, every publication has a contextual background, even if the publication is substantially untrue.  In addition, the evidence which Scott v. Sampson excludes is particular evidence of general reputation, character or disposition which is not directly connected with the subject matter of the defamatory publication.  It does not exclude evidence of directly relevant background context.  To the extent that evidence of this kind may also be characterised as evidence of the Claimant’s reputation, it is admissible because it is directly relevant to the damage which he claims has been caused by the defamatory publication”.
Thereafter May LJ referred to several authorities including Prager v. Times Newspapers Ltd [1988] 1 WLR 77, in which it was made clear that it is not open to a Defendant to plead specific facts in partial justification of a libel with the sole purpose of mitigating damages.  
14.	I acknowledge the concern felt by the Defendants that the Claimant should not be permitted to put himself before the jury in what they would say would be a false light and that the jury should be aware of what Mr Price called “the background”.  He is anxious that the jury should not assess damages “in blinkers”.  I will revert to that question in due course.  The immediate question is whether Burstein permits the Defendants, consequent on the abandonment of the defences of justification and qualified privilege, to rely as “directly relevant background context” upon the matters put forward in the revised paragraph (11) as explained by Mr Price.
15.	I have come to the clear conclusion that it would be wrong for me to permit the Defendants to advance the case which they intend.  I do not accept that the material sought to be put to the Claimant in cross-examination can properly be described as “directly relevant background context” in the sense in which May LJ intended.  It would be both disproportionate and unfair to the Claimant to allow it.  I have arrived at that conclusion for the following reasons:
i)	It appears to me that what the Defendants are in effect seeking to do is to reintroduce by the back door a somewhat modified plea of justification.  It is clear from the list of points which Mr Price indicates he wishes to put to the Claimant in cross-examination, that what will be suggested directly or indirectly is that the Claimant engages in acts of violence and terrorism, and/or that he is complicit in such acts carried out by his associates, and/or that he foments or underpins terrorism by his rabble rousing.  As is clear from Prager this is illegitimate and, I would add, unfair.  If the defendants want to run this kind of case, they must do so in the context of a plea of justification and no under the guise of “context”.
ii)	Whilst I accept that “directly relevant background context” is (no doubt deliberately) an imprecise concept, it seems fanciful to suggest that matters occurring as long ago as 1990 (the Teheran speech), 1991 (the Khartoum speech), or 1994 can be regarded as context or even background context.  It is significant that the editor of Al Arab, who wrote the article complained of, does not in his witness statement claim to have had any of the facts now sought to be relied on as context in mind when he published;
iii)	It became clear in argument that permitting cross-examination of the kind intended by the defendants would inevitably lead to a good deal of rebuttal evidence being adduced by the claimant in order to support his claim to be a moderate who is opposed to Terrorism.  The claimant would wish to call several witnesses, including Professor Keane, in rebuttal.  Various evidential questions would arise, such as whether it is legitimate for the question to be put to the Claimant in cross-examination that the co-founder with him of An Nahda had stated that the Claimant had “chosen to resort to violence”.  There is no evidence to support that claim.  Furthermore the Claimant would seek to adduce evidence from Mr Zamzami that that statement by the co-founder was made because he had been threatened with torture.  The claimant in addition would be required to give explanations of such matters as the reasons why he was not permitted to remain in France and why he has allegedly been denied entry to the USA and Canada.  It would be difficult for him to deal with the latter allegations without knowing on what grounds such denial was based.  As to the individual said to be under indictment in Florida on terrorist charges, the Claimant asserts that he does not know who he is.  Such issues as these will not only risk unfairness to the Claimant but will also add disproportionately to what should now, in the light of the abandonment of the substantive defences, be a relatively straightforward issue for the jury.  
iv)	The reliance sought to be placed upon a speech said to have been made by the Claimant in the Yemen would appear to be misconceived because it post-dates the alleged libel and cannot therefore constitute “background contexts”.
v)	I also have some concerns in the light of the observations of Lord Bingham in Medcalf v Mardell [2002] 3 WLR 172 at 183, as to the propriety of putting such serious allegations to the Claimant in cross-examination in the absence, for the most part, of supporting evidence.  It is to be noted in that connection that the Defendants expert, Dr Gunaratna, says at paragraph 7.1 of his report that the Claimant has been cautious to distance himself from violence and had disavowed violence publicly.  I do, however, bear in mind that Dr Gunaratna was not instructed to report on the political views of the claimant.
16.	For the above reasons I refuse permission to advance the case contained in the revised paragraph 11.  It appears to me that the appropriate manner in which to address the concern expressed by Mr Price as to the basis on which the Claimant presents himself to the jury is by ensuring that, through his own counsel or perhaps by the judge, the jury is given some general indication of the Claimant’s past involvement in Tunisian and Arab political affairs and as to the basis upon which they should set about their task of assessing any damages for the publication of the alleged libel.  It appears to me that a direction along these lines (not just in the summing-up but also earlier in the trial) is not only a legitimate exercise of my case management powers under Part 3.1; it is also necessary (particularly in the current political climate) in order to prevent the jury from being illegitimately diverted from the questions they have to decide.  I will of course hear argument how and in what terms the matter should be put to the jury.