Al Baho & Ors v Meerza

In libel proceedings, limited publication does not by itself establish abuse of process or mean that there is no substantial tort. The court must assess the seriousness of the allegation, the identity of the publishee, the way in which the allegation was understood, and its likely or actual impact on reputation. Where serious allegations raise genuine factual disputes about justification, qualified privilege or malice, those issues ordinarily require determination at trial. A limitation issue should not be resolved without giving the opposing party a proper opportunity to address it on notice.

The claimants brought libel proceedings concerning two emails sent by the defendant to the sister of the third claimant in Kuwait. The emails alleged that the claimants had committed or assisted a substantial fraud involving the sale of apartments and inheritance monies.

The defendant applied to strike out the claim under rule 3.4 of the Civil Procedure Rules 1998, relying principally on abuse of process and the contention that the limited publication amounted to no substantial tort. The claimants also sought, without a formal application, discretionary disapplication of the limitation period for an earlier email. The central issues were whether the claim should be struck out, whether genuine disputes concerning available defences required a trial, and whether the limitation question should be determined at that stage.

1. The application to strike out the libel claim under rule 3.4 was dismissed. The publication of the emails to one person did not, without more, establish abuse of process or show that there was no substantial tort.
2. Following the approach in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, the court had to consider the circumstances of the publication and the nature and impact of the allegations. The allegations of dishonest misappropriation and fraud were serious. The publishee was a close family member and a person said to be affected by the alleged wrongdoing. Significant reputational damage was therefore a realistic possibility.
3. Justification, qualified privilege and malice raised genuine disputes of fact. These included the defendant’s asserted relationship with the publishee, the circumstances in which the emails were sent, and his alleged financial motivation. The claimants should have the opportunity to address those issues on their merits.
4. The court declined to disapply the limitation period for the earlier email at that stage. The issue should be addressed on notice, although the court recognised that the earlier publication might be relevant at trial and that the parties could deal with the question by consent.
5. The related Chancery and Kuwaiti proceedings did not justify striking out the claim. A stay might later be appropriate to avoid duplication, particularly if the Kuwaiti proceedings concerned the same issues, but no such application was before the court.