HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco v Elaph Publishing Ltd

On a capability application, a court should exclude a defamatory meaning only at a high threshold. It must exercise caution and adopt a generous view of the legitimate ambit of meaning. A statement that a person is acting against an institution or ruler is not automatically non-defamatory. Wording and context may make allegations of secret, devious or disloyal conduct capable of seriously harming reputation. A claim under the Data Protection Act 1998 may be joined with defamation proceedings where the ordinary amendment test is met. The claims protect different interests, but the court must manage them proportionately and prevent correction of inaccuracy becoming a device for stifling criticism.

The Prince brought defamation proceedings against Elaph Publishing Ltd concerning an Arabic article published on Elaph’s website. He alleged that the article accused him of orchestrating plots against the Moroccan King and others.

In its first judgment, the Queen’s Bench Division held that some pleaded meanings were incapable of being defamatory, while a meaning that the Prince had instructed a person to lie was capable of being defamatory: [2015] EWHC 1084 (QB). In its second judgment, the court refused a broader defamation amendment but allowed the Prince to add a claim under the Data Protection Act 1998: [2015] EWHC 2021 (QB).

The Prince appealed the refusal to amend his defamation pleading. Elaph appealed the permission to add the data protection claim. The central issues were the threshold for determining whether words were capable of bearing a defamatory meaning and whether parallel defamation and data protection claims could properly proceed.

The Court of Appeal allowed the Prince’s appeal and dismissed Elaph’s appeal.

1. Capability applications. Under CPR Part 53 Practice Direction paragraph 4.1, the court’s function is to pre-empt perversity. The threshold for excluding a possible defamatory meaning is high. The court should exercise great caution and approach the legitimate ambit of meaning with generosity rather than parsimony, while having proper regard to the first-instance judge’s view.
2. Meaning and context. Modi v Clarke [2011] EWCA Civ 937 supports only the limited proposition that saying someone is working against the interests of an institution or ruler is not defamatory of itself. Particular words and context may make the allegation defamatory. The article here went beyond political disagreement or agitation for reform. Its references to schemes, entrapment, ploys and machinations were capable of conveying that the Prince was devious, underhand and disloyal. The meaning was not strained or unreasonable and was capable of being understood by the public generally as an attack on his integrity and character likely seriously to harm his reputation.
3. Data protection claim. There was no principle preventing a claim under the Data Protection Act 1998 from being linked to a defamation claim. The causes of action protect different aspects of private life, and the data protection claim could provide alternative redress if the libel claim failed. The ordinary amendment test remained applicable. The application was not too late because there had been no significant delay and no Defence had been served.
4. Proportionate management. The court must manage parallel claims under the overriding objective and the requirements of proportionality. Proceedings must not become a means of stifling criticism under the guise of correcting inaccuracy.

• Court of Appeal (Civil Division) Allowed the Prince’s appeal and dismissed Elaph’s appeal.
• Queen’s Bench Division In the first judgment, struck out certain pleaded meanings as incapable of being defamatory: [2015] EWHC 1084 (QB) . In the second judgment, refused the broader defamation amendment but allowed the data protection amendment: [2015] EWHC 2021 (QB).