The Supreme Court has overturned decisions of both the High Court and Court of Appeal, and held that a case against the Home Secretary for defamation should not be struck out. In reaching its decision, the Court provided helpful clarity about the circumstances in which libel cases might be struck out, including analysis of so-called Hunter and Jameel abuse (and the effect – if any – of their overlapping).

The case concerned Chowdhury Mueen-Uddin, a founding member of the Muslim Council of Great Britain and, as the Court put it, a holder of “a number of prominent public and charitable positions in British society”.  Mr Mueen-Uddin was born in what was then East Bengal and is now Bangladesh following the war of independence in 1971. That war saw the commission of numerous atrocities, including the abduction and murder of 18 prominent intellectuals. When Mr Mueen-Uddin became aware of allegations circling that he had been a member of the militia said to be responsible for the deaths of these intellectuals, he left Bangladesh for the UK and became a British citizen in 1984.

In 2013, Mr Mueen-Uddin was tried and convicted in his absence by the Bangladesh International Crimes Tribunal (“ICT”) for war crimes in relation to the death of the intellectuals. Mr Mueen-Uddin continues to deny the charges against him and maintains that the trial was politically motivated. The international community was also critical of the ICT: organisations such as the United Nations and human rights organisations stated that it failed to respect minimum fair trial guarantees and lacked judicial independence.

Notwithstanding the criticisms of the ICT, in 2019 the Home Office published a report (the “Report”) which, in a section entitled ‘What Extremism Looks Like in England and Wales’, contained a footnote which stated that “links between those responsible for the violence in 1971 and JI in the UK including community leadership in East London are well established. Chowdhury Mueen Uddin, former vice chair of the East London Mosque and who helped found the Muslim Council of Britain was found guilty of crimes against humanity following a trial in absentia”.

Mr Mueen-Uddin issued libel proceedings against the Home Secretary in June 2020. At a preliminary hearing on meaning, it was held that the natural and ordinary meaning of the words used in the relevant part of the Report was that Mr Mueen-Uddin (i) was one of those responsible for war crimes committed during a 1971 War of Independence in South Asia; and (ii) has committed crimes against humanity during a 1971 War of Independence in South Asia, and that those meanings were allegations of fact which were defamatory at common law.

The Home Secretary subsequently applied to have the claim struck out on the basis that it was an abuse of the court’s process. Two arguments were advanced. First, applying the approach in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (“Hunter”), it was argued that it was an abuse of process to launch civil proceedings as a ‘collateral attack’ on a criminal conviction. The proper course of action, the Home Secretary argued, was for Mr Mueen-Uddin to appeal the ICT’s conviction in Bangladesh. It was also argued that it would also be unfair for the claim to continue since if the Home Secretary were to rely on a defence of truth, he would have the burden of proving Mr Mueen-Uddin’s guilt long after the events occurred. Second, in addition to so-called Hunter abuse, the Home Secretary also invoked Jameel abuse, following the Court of Appeal’s judgment in Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946. There, the Court of Appeal struck out a case on the grounds that the claim disclosed no real or substantial tort and, in the notorious words of Lord Phillips MR, “the game was not worth the candle”.

The High Court accepted the arguments both on Hunter and Jameel abuse, and ordered that the claim be struck out. On appeal, a majority in the Court of Appeal upheld the High Court’s judgment. However, there was a strong dissent from Lord Justice Phillips who argued that “these proceedings do not constitute Hunter abuse, or come anywhere close to doing so”, not least because Mr Mueen-Uddin could not have any real opportunity to defend himself at the ICT since that would mean “surrendering to the Bangladesh authorities and submitting [himself] to almost inevitable execution”.

As for Jameel abuse, Lord Justice Phillips said that the facts were very different from those in Jameel which “was an extreme case, where minimal publication in England was being used opportunistically to found jurisdiction to litigate what was in reality a foreign dispute between persons with no connection to this country. The present case is very different, the appellant having a clear and legitimate interest in vindicating his reputation in the jurisdiction of the state of which he is a citizen and where he resides, against a most serious accusation by the government of that state. The publication was by no means minimal and was from an authoritative and apparently trustworthy source.”

Furthermore, Lord Justice Phillips criticised as “unprincipled” what he saw as the majority’s approach of identifying a number of features, each of which does not amount to either Jameel or Hunter abuse on its own, and then ‘roll them up’ and decide whether overall the proceedings are or are not abusive.

Mr Mueen-Uddin appealed to the Supreme Court. In a unanimous judgment, the Court overturned the decisions of both the High Court and Court of Appeal and ordered that the case be permitted to proceed to trial.

On the matter of Hunter abuse, Lord Reed explained that the relevant question is whether the claimant has “had the full opportunity of contesting the decision [in the previous proceedings] in the court by which it was made”. Furthermore, “it is of fundamental importance that the process by which the defendant is proved guilty shall have been fair”.

For Mr Mueen-Uddin, neither was the case. As Lord Reed explained, “the claimant was tried in absence before the ICT. He could not realistically be expected to attend the trial or any subsequent appeal, since he faced a real risk of execution. Counsel appointed to represent him was seemingly either unwilling or unable to obtain his instructions. It is unclear what grounds, if any, he might have advanced on appeal, since he was debarred by the 1973 Act from relying on the procedural guarantees contained in the Bangladesh Constitution or on the Criminal Procedure Code or the Evidence Act, and was unable to challenge the ICT’s decisions as to the admission of evidence”.

Turning to the question of whether it would be manifestly unfair to expect the Home Secretary to prove Mr Mueen-Uddin’s guilt so long after the events in question in order to rely on a defence of truth, the Court gave this argument short shrift. Mr Mueen-Uddin had promptly issued his claim following publication of the Report and “prosecuted it expeditiously”. That the Report covered events over 50 years ago was not his responsibility, and it was not unheard of for libel claims to be brought over allegations concerning conduct many years earlier. Furthermore, as the Court put it, “if the Secretary of State is unable to establish the truth of the accusation which the Home Office chose to publish concerning the claimant’s conduct more than 50 years ago, that should have been considered before the Report was published”.

The Court then considered Jameel abuse. While it was not the central focus of the case, it was a subject that received a lot of attention at the hearing, as the Court was concerned to understand precisely its nature and scope, as well as its utility given the changes in libel law since the passing of the 2013 Defamation Act, and in particular its requirement for a claimant to prove serious harm to their reputation. Indeed, as Lord Reed stated, “given the decision in Thornton, and the enactment of section 1 of the 2013 Act, one might have thought that cases in which the principle laid down in Jameel, as interpreted by this court in Lachaux, might continue to be relevant were likely to be few and far between. However, in this case it is Jameel, rather than the 2013 Act or Thornton, on which reliance has been placed, as the Secretary of State seeks to have the claim struck out as an abuse of process, rather than seeking summary judgment on the ground that the claimant has no real prospect of establishing an essential ingredient of his cause of action”.

The Court clarified that Jameel abuse was concerned with the court striking out a case where, in the absence of more than minimal damage, allowing it to proceed would have been incompatible with the defendant’s rights to freedom of expression under Article 10 of the ECHR.

Lord Reed explained that care should also be taken not to misinterpret Lord Philips MR’s metaphor that “the game was not worth the candle”: this did not require, as the majority in the Court of Appeal had done, a weighing up of the value of the claim against the cost of proceedings. Instead, “the point of the metaphor is to underline the trivial nature of what is at stake. The dicta focused upon the question whether the damage to the claimant’s reputation was shown to be so trivial that the proceedings could not be regarded as serving the legitimate purpose of protecting the claimant’s reputation, with the consequence that the interference with the defendant’s freedom of expression could not be said to be necessary. The game was not worth the candle, if one wants to use that metaphor, because the action could not achieve, to any significant extent, the legitimate objective of protecting the claimant’s reputation in this jurisdiction.” Finally, as for the interaction between Jameel abuse and other procedural mechanisms available in libel proceedings, the Court confirmed that if a statement of case discloses no reasonable grounds for bringing the claim, the claim can be struck out on that ground under CPR rule 3.4(2)(a), and if a claimant had no real prospect of establishing serious harm under section 1(1) of the 2013 Act, “the appropriate response would be to grant summary judgment in favour of the Secretary of State, rather than to strike out the claim as an abuse of process”.

The Court also disagreed with the majority of the Court of Appeal’s approach in assessing the reputation of Mr Mueen-Uddin prior to publication of the Report, which went to the damage – if any – that he suffered as a result of its publication. As the Court explained, the majority of the Court of Appeal had relied on publications of the same allegations against Mr Mueen-Uddin on earlier occasions, treating them as not only admissible but conclusive evidence as to his bad reputation prior to the publication of the Report. This was a departure from the usual so-called Dingle rule, which the Home Secretary argued did not apply to this case since it was concerned with abuse of process rather than mitigation of damages (as was the case in Dingle). Furthermore, the Home Secretary argued that a previously published report (and in particular a Channel 4 documentary that reported on the allegations against and conviction of Mr Mueen-Uddin) should be admissible on the question of bad reputation if it is months old and remained uncontradicted. The Supreme Court disagreed, stating that nothing in Dingle supported that proposition (and noting that Mr Mueen-Uddin had in fact contradicted the documentary by issuing a libel claim, but could not afford to pursue it to trial).

The Supreme Court also rejected arguments advanced by the Home Secretary – and accepted by the majority of the Court of Appeal – that evidence of Mr Mueen-Uddin’s previous conviction was admissible as evidence of bad reputation. Whilst this was generally the case as regards criminal convictions from English courts (applying Goody v Odhams Press Ltd [1967] 1 QB 333, “Goody”), the Court explained that that rule required modification for criminal convictions in foreign courts. As the court put it, “the ordinary person is aware that criminal prosecutions and trials in foreign jurisdictions are not necessarily subject to the same requirements of independence, impartiality and procedural fairness as apply in the United Kingdom, and that capital sentences may be imposed which render submission to such a jurisdiction practically impossible. It follows that the reasoning in Goody cannot automatically be applied to all foreign convictions. If it can be applied, it has to be in a more nuanced manner.”

Bringing all these strands together, the Court refused to strike out the case, concluding that Mr Mueen-Uddin has “a legitimate interest in vindicating his reputation in this country, where he resides and of which he is a citizen, against an extremely serious allegation made by the government of this country. It is impossible to conclude, at this stage of the proceedings, that if he were to succeed in establishing that he had been defamed by the Secretary of State, a finding to that effect, and an appropriate award of damages, would be incapable of vindicating his reputation. On the contrary, it is reasonable to expect that success in these proceedings would be a major vindication.”

The Court also agreed with Philips LJ that the approach of the majority in the Court of Appeal to ‘lump together’ Hunter abuse and Jameel abuse as part of an overall determination of whether there was an abuse of process was unprincipled. As Lord Reed put it, “the Hunter principle and the Jameel principle protect different aspects of the public interest, and have different rationales. Where neither principle is satisfied, the considerations which were relevant to each principle cannot simply be lumped together. If they are considered to be relevant to some other principle, that principle has to be identified and defined.”

To read the judgment in full, click here.