Alsaifi v Trinity Mirror Plc & Anor

A defence of honest opinion cannot dispose of a defamation claim where the publication is capable of conveying a defamatory allegation of fact, even if other parts express opinion. The Jameel jurisdiction is exceptional. It requires assessment of the legitimate value of the claim and the likely cost of achieving it, including the value of vindication and protection against future reputational harm. A claim should not be struck out at an early stage where the pleadings, defences, costs and proportionate procedure remain uncertain, and it cannot fairly be said to be obviously pointless.

The claimant appealed against the Master’s dismissal of his defamation claim against Newcastle College Group. The claim concerned three paragraphs of an online newspaper article containing a statement attributed to the College’s principal. Warby J had ruled that the words were capable of bearing a meaning including defamatory allegations of fact, while dismissing the claim against the newspaper on other grounds.

The Master held that honest opinion was bound to succeed and that any remaining claim was abusive under the Jameel principle. The issues on appeal were whether the capable meaning prevented summary judgment on honest opinion and whether continuation of the claim was disproportionate.

1. Appeal allowed. The Master’s order was set aside. The claim against the Second Defendant was not to be dismissed at that stage.
2. The capable meaning included a defamatory allegation of fact arising substantially from paragraph 15 of the article. The fact that paragraphs 14 and 16 were likely to be expressions of opinion, and that there was no real prospect of proving that the speaker did not honestly believe that opinion, did not answer the factual allegation. Honest opinion therefore could not dispose of the whole claim.
3. The effect of Curistan was that privileged material could not be relied upon as words complained of, but remained relevant context for determining the meaning of non-privileged parts of the publication. On the facts, the earlier privileged paragraphs had already been treated only as context when the capable meaning was determined.
4. The Jameel jurisdiction permits a claim to be stayed or struck out where no real or substantial wrong has been committed and no tangible or legitimate benefit proportionate to the costs can be achieved. It is a draconian and exceptional jurisdiction. The court must consider both the value of the legitimate benefit and the likely cost of obtaining it. It must also ask whether a proportionate procedure can be fashioned. A detailed merits assessment is inappropriate unless the claim has obviously little prospect of success.
5. Vindication may include protection against future reputational harm. The claimant’s claim was the only apparent route by which he might obtain vindication concerning the defamatory factual allegation, particularly because the newspaper claim had been dismissed and the article remained available online. At this procedural stage, no defence had been pleaded, no costs budgets were available, and the parameters of any trial were unknown. It could not therefore fairly be concluded that the claim was obviously pointless or incapable of proportionate adjudication. The claimant’s application for judgment in his favour was refused because the potential defences could not fairly be determined summarily.

• High Court (Queen’s Bench Division): Warby J’s judgment of 27 June 2017, [2017] EWHC 1444 (QB), dismissed the claim against the First Defendant and ruled on the meanings capable of being conveyed by the words concerning the Second Defendant.
• High Court (Queen’s Bench Division): Master McCloud dismissed the claim against the Second Defendant on 21 December 2017.
• High Court (Queen’s Bench Division): The present court allowed the appeal, set aside the Master’s order and directed that consequential orders be addressed after judgment.