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

The Court of Appeal considered whether libel and data-protection claims arising from a footnote in a Home Office report should be struck out as an abuse of process. The judge below struck out the claims under principles derived from Hunter (collateral attack / relitigation) and Jameel (claims not "worth the candle"). The majority in this Court upheld that decision. Key legal principles applied were the court’s inherent power to prevent abuse of process (Hunter abuse), the Jameel jurisdiction to strike out libel claims which cannot be adjudicated proportionately or do not warrant interference with freedom of expression, and the overlap between defamation and GDPR/DPA 2018 accuracy claims where adjudication would require relitigation of historic factual allegations.

The majority concluded that a combination of factors rendered continuation abusive: (1) the appellant’s conviction by the International Crimes Tribunal in Bangladesh; (2) long-standing, widespread prior publicity (notably the 1995 Channel 4 Dispatches programme); (3) the limited and targeted nature of the publication complained of (a footnote in a 144-page report, since removed online); and (4) the very substantial evidential and fairness difficulties of determining events over fifty years old such that the defendant could not obtain a fair trial on justification and the claim would not adequately vindicate reputation. The data-protection claims were struck out as overlapping with and raising substantially the same issues as the defamation claim.

Background and parties. The appellant, Mr Chowdhury Mueen-Uddin, sued the Secretary of State for the Home Department in libel and under the GDPR and Data Protection Act 2018, seeking vindication and remedies for statements in a Commission for Countering Extremism report published 7 October 2019 which (in a footnote) linked him to crimes against humanity and referred to his conviction in absentia by a Bangladesh International Crimes Tribunal in 2013. The Secretary of State applied to strike out the claims as an abuse of process.

Procedural history. Proceedings were issued in June 2020. Tipples J had earlier (16 February 2021) determined the natural and ordinary meaning of the report. Sir Andrew Nicol struck out the claims as an abuse of process on 15 November 2021 ([2021] EWHC 3026 (QB)). The appellant appealed; the Court of Appeal heard the appeal on 9–10 June 2022 and handed down judgment on 28 July 2022.

Nature of the claims / relief sought. The appellant sought damages and vindication for defamatory publication and remedies under the GDPR and DPA 2018 for alleged breaches of accuracy and processing for permitted purposes.

Issues framed by the court. The Court framed (i) whether continuation of the libel claim amounted to a Hunter-type abuse (a collateral attack on a foreign tribunal decision in which the appellant had a full opportunity to contest the matter); (ii) whether the Jameel jurisdiction justified striking out as disproportionate / not worth the candle; and (iii) whether the data-protection claims were properly distinct from, or overlapping with, the libel claim so as to render them similarly abusive.

Reasoning and conclusions. The Court was divided. Dingemans LJ and Sharp P (majority) concluded that the judge below was right to strike out. They relied on a bundle of factors, taken together, which made continuation abusive: the 2013 ICT conviction and its wide publicity (including longstanding broadcast material), the appellant’s established reputation in the relevant sector as a suspected war criminal, the limited nature of the impugned publication (a footnote, later removed online) that reached mainly an informed audience likely already aware of earlier material, and, crucially, the practical impossibility of determining justification fairly after more than 50 years (witness mortality and reliance on hearsay/newspaper material). On that basis continuation would be unfair to the Secretary of State, would bring the administration of justice into disrepute and, by the Jameel yardstick, be disproportionate and not worth the candle. The data-protection claims were struck out because assessment of lawfulness and accuracy would require relitigating the same historic factual issues.

Phillips LJ dissented on the central abuse points. He accepted that Hunter abuse can extend to collateral attack on foreign criminal convictions but concluded, on the material before the Court, that the appellant had not had a full opportunity to defend himself in the Bangladesh proceedings and that reliance on that conviction could not of itself found an abuse. He also considered that Jameel did not apply: the appellant had a substantial reputational interest in this jurisdiction and the publication was not opportunistic minimal publication abroad. The dissent emphasised concerns about reliance on the ICT conviction and the importance of access to the English courts to seek vindication.

Subsidiary procedural notes. The judge below did not decide the Secretary of State’s application for reverse summary judgment on serious harm. The Court noted that the online footnote had been removed in March 2020.

Appeal dismissed (majority). The Court (Dingemans LJ and Sharp P) upheld the High Court’s strike-out of the libel and overlapping data-protection claims as an abuse of process. The majority reasoned that a combination of the appellant’s foreign conviction and widespread prior publicity, the limited character of the impugned publication, the passage of time and attendant evidential difficulties made a fair and proportionate adjudication impossible; continuation would be unfair to the Secretary of State, would risk bringing the administration of justice into disrepute and, under Jameel, would be disproportionate. Phillips LJ would have allowed the appeal, rejecting the Hunter and Jameel strikes in the circumstances and emphasising the procedural unfairness of the ICT and the appellant’s interest in vindication.

Appeal from Sir Andrew Nicol (sitting as a High Court judge, Media and Communications List) order striking out claims dated 15 November 2021; High Court judgment reported at [2021] EWHC 3026 (QB). Appeal heard in the Court of Appeal 9–10 June 2022; judgment delivered 28 July 2022 ([2022] EWCA Civ 1073). Tipples J determined meaning of report on 16 February 2021.