Bin Mahfouz & Ors v Ehrenfeld & Anor

Under the summary disposal procedure for defamation claims, the court may determine the claim without a trial where the defendant has no real prospect of successfully defending it and no other reason justifies awaiting trial. The claimant may rely on evidence addressing the substantial truth of the allegations and need not rest on the presumption of falsity. Where allegations are exceptionally serious, unsubstantiated and unmitigated, the court may award the maximum statutory damages, declare them false, and grant corrective and injunctive relief. The statutory declaration of falsity may provide genuine vindication and is not merely formal.

The claimants, three Saudi businessmen, sued the author and publisher of a book alleging that they supported and funded terrorism. The defendants were served but did not acknowledge or defend the proceedings. Default judgment and an injunction had previously been entered.

The claimants applied under sections 8 to 10 of the Defamation Act 1996 for assessment of damages, a declaration that the allegations were false and defamatory, publication of a correction and apology, continuation of the injunction, and costs. The central issue was whether the claim could properly be disposed of summarily in circumstances where the defendants had produced no evidence capable of supporting a defence of justification.

1. The application was granted. The defendants had been properly served and had every opportunity to defend the claim, including by pleading justification. They had not done so and had produced no material capable of substantiating the allegations.

2. The court noted that substantial truth is a complete defence to libel, and that other defences, including qualified privilege, may be available. The claimants nevertheless addressed the allegations on their merits. Their evidence directly denied the allegations, while the material advanced on behalf of the defendants was flimsy, unsupported or contradicted by corrections and denials.

3. The summary procedure was appropriate because there was no real prospect of a successful defence and no other reason why disposal should await a trial. The claimants were not relying merely on the presumption of falsity. Their evidence and the absence of any substantiating defence justified a declaration that the defamatory allegations were false.

4. Given the gravity of the allegations, the absence of mitigation and the continuing risk of publication, the court awarded each claimant the maximum damages permitted by the statutory procedure, namely £10,000. A declaration of falsity was made, the injunction was confirmed, and the defendants were ordered to pay the costs, subject to detailed assessment if not agreed, with £30,000 payable on account within 28 days.

5. The court emphasised that a declaration of falsity under the statutory framework could serve a real vindicatory purpose. It was not an empty or purely formal remedy.