Mueen-Uddin v Secretary of State for the Home Department

A civil claim which challenges an earlier criminal conviction is not an abuse of process under the Hunter principle unless the claimant had a full and fair opportunity to contest that conviction in the original proceedings. The procedural quality of a foreign trial is therefore critical.

Difficulty in proving a truth defence does not make a defamation claim abusive. The defendant bears the risk of insufficient evidence. Jameel abuse addresses claims involving no more than minimal reputational damage. It does not authorise a general comparison between litigation costs and the claim’s value. Distinct abuse doctrines cannot be combined when the requirements of each remain unsatisfied.

The Home Office published a report stating that the claimant had been found guilty of war crimes and crimes against humanity by the International Crimes Tribunal of Bangladesh. He had been tried in his absence and sentenced to death. He alleged that the foreign proceedings lacked independence and basic procedural safeguards.

The claimant brought proceedings for libel and breach of duties under the General Data Protection Regulation. The High Court struck out the claims as an abuse of process. A majority of the Court of Appeal dismissed his appeal in [2022] EWCA Civ 1073; [2022] EMLR 23.

The Supreme Court considered whether the claim was an impermissible collateral attack on the foreign conviction, whether evidential difficulties made it manifestly unfair, whether the claim constituted Jameel abuse, and whether individually insufficient considerations could cumulatively establish abuse.

1. The appeal was allowed unanimously. The order striking out the claims was set aside, and the claimant was permitted to pursue them at trial. Lord Reed gave the judgment, with which Lord Sales, Lord Hamblen, Lord Burrows and Lord Richards agreed.

2. The court’s inherent abuse jurisdiction prevents misuse of civil procedure which would be manifestly unfair or bring the administration of justice into disrepute. It preserves public confidence in justice. It cannot be exercised where a claimant is properly using the civil jurisdiction to protect legal rights. Strike-out on this ground is appropriate only in a clear and obvious case.

3. The essential requirements of the rule in Hunter were absent. A collateral challenge is ordinarily abusive only where the earlier decision was final, was made by a court of competent jurisdiction, and followed proceedings in which the claimant had a full and fair opportunity to contest it. Foreign convictions require particular attention to the procedural quality of the earlier proceedings. The claimant had been tried in his absence, faced a real risk of execution if he attended, could not effectively instruct appointed counsel, and was denied ordinary procedural and evidential safeguards. His present claim was therefore a proper use of civil process.

4. The anticipated difficulty of establishing a truth defence did not make the proceedings manifestly unfair. Under section 2 of the Defamation Act 2013, the defendant bears the burden of proving the defamatory imputation substantially true. That burden assigns to the defendant the risk of insufficient evidence. Any difficulty arose from the decision to publish grave allegations concerning events more than 50 years earlier. The supposed evidential difficulties were also speculative.

5. Jameel abuse concerns the rare case in which reputational damage is no more than minimal, so that proceedings serve no legitimate purpose capable of justifying interference with freedom of expression. It does not establish a test which balances the claim’s monetary or reputational value against litigation costs. Section 1 of the Defamation Act 2013 now requires serious reputational harm. If that essential element has no real prospect of being proved, summary judgment is the appropriate response.

6. Earlier publications of the same allegation could not be treated as conclusive evidence of bad reputation or used to diminish vindication. The rule in Dingle makes such publications legally irrelevant to the damage caused by the publication complained of. Goody did not justify a different result. Its reasoning concerning recent English convictions could not automatically be applied to a disputed foreign conviction produced by an allegedly unfair process.

7. Distinct forms of abuse may overlap where their individual requirements are met. A court cannot, however, aggregate fragments of Hunter abuse, Jameel abuse and alleged unfairness when none establishes abuse. Any wider principle relied upon must be identified and defined.

1. United Kingdom Supreme Court: The appeal was allowed in [2024] UKSC 21. The strike-out order was set aside and the claims were permitted to proceed to trial.
2. Court of Appeal: By a majority, the court dismissed the claimant’s appeal in [2022] EWCA Civ 1073; [2022] EMLR 23. Phillips LJ dissented.
3. High Court: Sir Andrew Nicol struck out the libel and data-protection claims as an abuse of process in [2021] EWHC 3026 (QB).
4. High Court preliminary issue: Tipples J held that the publication alleged as facts that the claimant was responsible for war crimes and had committed crimes against humanity, and that those meanings were defamatory at common law: [2021] EWHC 269 (QB).