Al Rajhi Banking & Investment Corporation v The Wall Street Journal Europe SPRL

Permission to plead justification in a libel action depends first on whether the proposed meaning is capable of being conveyed by the words and, secondly, whether the particulars are capable of supporting it. Where the alleged meaning is that there were reasonable grounds to suspect reprehensible conduct, the grounds must be objectively judged. Suspicion or action by law-enforcement agencies cannot replace that criterion. Mere association is insufficient unless the association itself involves relevant culpable conduct or knowledge. The court must prevent vague or shifting allegations from creating an unfair trial, while avoiding premature exclusion of allegations capable of being proved and refuted. A mini-trial is inappropriate, but the claimant must know the case it has to meet.

The claimant brought a libel action concerning an article published in the Wall Street Journal which allegedly suggested involvement, or possible involvement, in funding Al-Qaeda terrorism. The defendant sought, at a late stage, permission to amend its defence to plead justification on alternative Lucas-Box meanings.

The application followed an earlier ruling refusing permission to add a late justification plea: [2003] EWHC 1358. The present application concerned the final proposed meanings and particulars, including alleged links with persons and organisations associated with terrorism. The central issues were whether the words were capable of bearing the proposed meaning and whether the pleaded facts could support it.

1. The application was allowed only in part. The words were not capable of bearing a meaning lower than that there were reasonable grounds to suspect the claimant, through its owners or executives, of knowing or negligent involvement in the use of accounts for terrorist-related funding. The proposed meaning based merely on grounds for investigation was therefore rejected: the presentation and content of the article took the case to the second level of gravity identified in Chase v News Group Newspapers Limited [2003] EMLR 218.

2. The relevant test was whether objectively judged reasonable grounds existed to suspect reprehensible conduct. The defendant bore that burden. Suspicion or action by law-enforcement agencies could not be substituted for the objective criterion. The court also applied the principle that justification could not rest on mere association. The association had to involve culpable knowledge or conduct.

3. Several proposed allegations were excluded because they were vague, incapable of supporting reasonable suspicion, or would offend the conduct rule. These included the Golden Chain, Wadih El Hage, Tarik Hamdi, the hijackers, Yasin Al Qadi, and the Infocom allegations in their then-current form. The court treated the limited address-book evidence as insufficient and potentially unfair because it could force the claimant to prove its innocence.

4. The court permitted the banking-facilities allegations under section (7), subject to clarification and incorporation of the specified particulars. It also permitted the SAAR allegations under section (8), while requiring deletion of overbroad references to persons known or reasonably suspected to be involved in terrorist activity. At this stage the court had to assume pleaded facts could be proved and avoid conducting a mini-trial.

5. Particulars had to concern facts existing at publication, although the defendant need not have had those facts in mind when publishing. The trial date was vacated because of the late amendment, and further directions were required concerning the defence, disclosure, witness statements and costs.

This was a first-instance interlocutory decision. The court referred to its earlier judgment in the same litigation, [2003] EWHC 1358, which had refused permission to add a late justification plea.