Ghannouchi v Houni Ltd. & Ors

After abandoning justification and qualified privilege, a defendant in a libel action cannot reintroduce substantially the same case by describing allegations of violence, terrorism or political extremism as background context. Evidence is admissible only where it is directly relevant to the publication and the damage claimed. The court must also consider proportionality and fairness, including the need for rebuttal evidence and the risk of diverting the jury from the issues it must determine. Serious allegations should not ordinarily be put in cross-examination without supporting evidence. Case management directions may provide the jury with limited general context without permitting an illegitimate collateral trial.

The claimant, a Tunisian political leader, brought a libel claim concerning an article in Al Arab alleging links with terrorist organisations and individuals. The defendants initially pleaded justification and qualified privilege, but abandoned those defences immediately before the hearing. They sought instead to amend their plea concerning mitigation of damages and to cross-examine the claimant about historic speeches, the activities of his political movement, alleged associations with terrorists, and restrictions imposed by foreign governments.

The issue was whether that material could be admitted as directly relevant background context following Burstein v Times Newspapers Ltd [2001] 1 WLR 579.

1. Application refused. The defendants were not permitted to advance their revised paragraph 11 or to cross-examine the claimant on the proposed matters.
2. The proposed evidence would in substance reintroduce a modified plea of justification through the back door. Allegations that the claimant engaged in, supported or encouraged violence or terrorism had to be advanced, if at all, by a properly pleaded justification defence. They could not be introduced under the guise of context. The approach was supported by Prager v Times Newspapers Ltd [1988] 1 WLR 77 and the rule in Scott v Sampson [1882] 8 QBD 491.
3. The principle recognised in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 did not permit the proposed evidence. Material described as directly relevant background context had to be genuinely connected with the publication and the damage claimed. Events dating from 1990, 1991 and 1994 were too remote, and the article’s editor had not said that the matters were in mind when publishing.
4. Admission would be disproportionate and unfair. It would generate extensive rebuttal evidence, difficult evidential disputes and explanations of matters whose basis was unclear. It would also complicate what had become a relatively straightforward assessment of damages.
5. The court further had concerns, in light of Medcalf v Mardell [2002] 3 WLR 172 at 183, about putting serious allegations to the claimant without adequate supporting evidence.
6. The defendants’ legitimate concern could instead be addressed by a limited indication to the jury of the claimant’s general political background and by directions explaining how damages should be assessed. Such directions were a proper and necessary exercise of the court’s case-management powers under CPR Part 3.1.