Chowdhury Mueen-Uddin v Secretary of State for the Home Department

A civil claim may be abusive where its inevitable effect is to mount a collateral attack on a foreign criminal conviction. The absence of an issue estoppel, or the fact that the earlier conviction is not conclusive evidence under the Civil Evidence Act 1968, does not prevent abuse of process. The court must conduct a close, merits-based assessment of all the circumstances. Particular weight applies to criminal convictions. Unfairness to the opposing party is an independent basis for abuse, especially where the passage of time makes a fair retrial of the underlying events impracticable. The proper route for challenging the conviction is ordinarily the relevant criminal appellate process. The court may also strike out a claim on proportionality grounds under the Jameel jurisdiction.

The claimant sued the Secretary of State in libel and under Articles 5, 6 and 10 of the GDPR over passages in a Home Office Commission report stating that he had been found guilty of crimes against humanity following a trial in absentia in Bangladesh.

In an earlier preliminary-issue decision, Tipples J found that the words meant that the claimant was responsible for, and had committed, war crimes and crimes against humanity, and were defamatory. The claimant amended his pleadings accordingly. The defendant applied to strike out the claim as an abuse of process, principally because it would require the English court to reconsider the correctness of the claimant’s foreign criminal conviction. Summary judgment was advanced in the alternative.

1. Claim struck out. The proceedings were an abuse of process under CPR r.3.4(2)(b). The court applied the merits-based approach stated in Michael Wilson and Partners v Sinclair [2017] 1 WLR 2646, considering the private and public interests and whether the process was being misused.
2. The libel and data-protection claims would inevitably require reconsideration of whether the claimant was guilty of the murders underlying the Bangladesh conviction. The claimant’s purpose was not itself abusive, but the substance and inevitable consequence of the proceedings amounted to a collateral attack.
3. The principle in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 was not confined to domestic convictions. The court was particularly vigilant where the earlier decision was criminal. El Diwany v Hansen and Sorte, El Diwaney v The Ministry of Justice and the Police Norway [2011] EWHC 2077 (QB) and King v Grundon [2012] EWHC 2719 (QB) supported applying the same considerations to overseas convictions.
4. The absence of conclusive evidential effect under sections 11 and 13 of the Civil Evidence Act 1968 did not prevent abuse. It meant that the defendant would have to prove the claimant’s guilt afresh for the libel claim, creating manifest unfairness after more than 50 years, when witnesses and documents would inevitably have been lost.
5. The court distinguished Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd [2015] EWHC 1640 (Comm) and its appeal [2016] 2 All ER (Comm) 740. Those cases did not concern an earlier criminal conviction and did not establish a general rule excluding abuse in foreign-court cases.
6. The conclusion did not determine whether the Bangladeshi proceedings were fair. The claimant’s proper remedy for that complaint was, or had been, an appeal within the Bangladeshi criminal process. The claimant could not remain outside Bangladesh while using English civil proceedings to challenge the conviction.
7. The claim would also have been suitable for strike-out under the Jameel jurisdiction because it would be lengthy and costly, while the online report had been amended and the practical vindication available was limited. The summary-judgment application therefore did not require determination.

Judgment was entered for the defendant.