Raid Tawfik Al Sadik v Suhad Subhi Sadik

Before : RICHARD SPEARMAN Q.C. (Sitting as a Deputy Judge of the Queen’s Bench Division) - - - - - - - - - - - - - - - - - - - - - Between : RAID TAWFIK AL SADIK - and - SUHAD SUBHI SADIK - - - - - - - - - - - - - - - - - - - - - Claimant Defendant Richard Munden (instructed by Gowling WLG (UK) LLP ) for the Claimant The Defendant appeared in person (assisted by Rana Sadik and Imran Sadik ) Transcribed from the official recording by eScribers Central Court, 25 Southampton Buildings, London WC2A 1AL uk.escribers.net Hearing date: 31 March 2022 - - - - - - - - - - - - - - - - - - - - - WARNING: Reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. RICHARD SPEARMAN Q.C.:

1. This is a remedies hearing in a claim which is now a claim for libel alone. The claimant is represented by Richard Munden of counsel, and the defendant appears in person.

2. The matter comes before me today as a result of some earlier orders of the court. On 26 November 2021, Master McCloud ordered that unless the defendant paid the claimant the sum of £12,500, being costs which had been awarded against the defendant by order of a Deputy Master on an earlier hearing, by 4 pm on 10 December 2021, her defence in the claim should be struck out and judgment should be entered for the claimant. On 17 December 2021, Master McCloud made a further order whereby the costs that the defendant was required to pay pursuant to paragraph 2 of the order of 26 November 2021 were assessed in the sum of £14,730. Following those two orders, a further order was made by Master McCloud on 8 February 2022, and it is accordance with that order that this hearing arises before me today.

3. By paragraph 1of the order of 8 February 2022, it was ordered that judgment should be entered for the claimant. By paragraph 2, a trial to determine the remedies to which the claimant was entitled was ordered to be heard, and that is what has come before me today. The Master also gave various other directions in connection with the present hearing.

4. It is important to emphasise at the outset, as appears from those earlier orders, the limited nature of the issues (although they are important) which fall for determination by me today. This hearing does not involve revisiting the claimant’s entitlement to judgment on the claim for defamation. Still less does it involve revisiting the rights and wrongs of the property dispute between the parties which gave rise to the publication complained of in this claim for libel.

5. It is clear from her demeanour in the course of the hearing that the defendant remains upset by the history of events and the plain falling out that has occurred in this family, in particular between her and the claimant. She is married to the claimant’s brother, and she, in turn, is the sister of the claimant’s wife. The relationship between the claimant and the defendant is accordingly a very close family relationship. But, plainly and unfortunately, it has become a very unhappy one.

6. Before me today, the defendant has been supported by her daughter, Rana Sadik, and by her son, Iman Sadik. I did not make any formal order allowing them to assist her or represent her, but they have both taken turns to speak on her behalf, particularly at times when she has felt too distressed by the hearing today to be able to continue to speak for herself. But the Transcribed from the official recording by eScribers 2 defendant is the person who conducted the cross-examination of the claimant’s witnesses and put to them such questions as she considered to be appropriate.

7. The remedies sought in front of me today give rise to three essential issues. First, there is the question of the amount of damages to which the claimant is entitled, having regard to the publication he complains of and all the circumstances of the case. Second, there is the question of whether the court should grant an injunction to restrain repetition of the defamatory statements complained of. The third question which arises is whether the court should order the defendant to publish a summary of the judgment which I am presently delivering, which the court has power to do under Section 12 of the Defamation Act 2013 .

8. I can say straightaway with regard to the claim for an injunction that it appears to me that the case for the grant of an injunction is a strong one. In my judgment, that would have been plain in any event. But the history of the matters that have been ventilated in front of me today, and the defendant’s conduct in front of me today, has served to underline, in my judgment, the conclusion that an injunction is an appropriate remedy in this case.

9. The defendant made it perfectly clear more than once during the course of the hearing that she did not accept the validity of the claimant’s complaints in this libel action at all; that from her perspective she had spoken the truth in the publication that is complained of; that the claimant had, indeed, acted wrongly, as she accused him of doing in that publication, by lying under oath and so forth - which I will come on to deal with in more detail in a moment; and, effectively, that she stood by everything that she said.

10. In my judgment, it is crystal clear from what has transpired in front of me today as well as the earlier history of this litigation, in which it is quite clear that the defendant has neither shown any regret or remorse nor expressed any apology, that there is a very significant risk that without the protection of an injunction the defamatory allegations that are complained of would be repeated by her in the future.

11. This case has come before the court on a number of occasions, and in particular it has resulted in two detailed judgments by different High Court judges. In consequence, I have the benefit of those two detailed judgments. The later in time of those two judgments is that of Julian Knowles J, which was handed down on 16 October 2019 following a hearing on 2 April 2019. That hearing concerned an application by the defendant to strike out the claim or for summary judgment against the claimant on the grounds that are set out in paragraph 7 of that judgment. Those grounds included the contention that the allegations complained of by the claimant were not defamatory because the claimant could not establish the threshold requirement of serious harm, which is contained in Section 1 of the Defamation Act 2013 , and also included a contention that the pursuit of the claim was an abuse of process.

12. The genesis of this libel claim is set out in paragraphs 3 to 5 of that judgment of Julian Knowles J, as follows: “The libel claim arises out of three WhatsApp messages sent by the Defendant to a group of 34 people on 18 or 19 September 2017 (the Messages). WhatsApp is a messaging service allowing users to exchange messages to each other individually, or via user defined groups, over the internet. All of the group members were part of the Claimant’s wider family. The Messages were sent following bitterly contested family property litigation between Transcribed from the official recording by eScribers 3 parties including the Claimant on the one part, and the Defendant and her husband and son on the other (the property litigation). The property litigation concerned a house in London, the ownership of which was disputed. The Defendant and her husband had lived there for a number of years. The Claimant prevailed in this dispute when, at the conclusion of the trial, the Defendant, her husband and son discontinued their action and signed a consent order giving vacant possession of 22EM, plus mesne profits and costs. On the same day the consent order was signed, the Defendant sent a photograph of the Claimant sitting with his wife and solicitor to the WhatsApp group. They had been sitting in a sandwich shop near to the Royal Courts of Justice when they were photographed by the Defendant. The photograph was accompanied by the Messages in Arabic which, when translated, were as follows: a. ‘A photograph of the Zionist, Riad [ie, the Claimant], whilst he was arranging with the attorney how he can rob his brother’s house, whilst he had sworn on the Quran and before everyone falsely without respecting the sanctity of the Quran’. b. ‘When we confirmed the level of his audacity to lie and that he had the audacity to lie whilst holding the Quran in his hands, we withdrew our case from court. I ask God to be the judge – I say to you, my brothers and beloved ones that this the Palestinian who is fighting to smash his brother. However, God’s love for us is a blessing, for which we always praise Him.’ c. My love and respect for the Al Sadek family, which I’m proud to belong to. I ask God to punish this Zionist who claims that he is a Palestinian …’.”

13. The pleaded meanings alleged by the claimant are set out in paragraph 6 of the judgment, as follows: “The pleaded defamatory imputations arising from these words are as follows (Amended Particulars of Claim (APOC), [11]). The Claimant asserts they meant that he had: a. Arranged to rob his brother’s house. b. Lied, even after having sworn on the Quran to tell the truth; and c. Committed perjury in order to dishonestly promote his interests at the expense of his own brother.”

14. The parties and the factual background are set out in paragraph 10 to 16: Transcribed from the official recording by eScribers 4 “10. The Claimant is a businessman and philanthropist who lives in Dubai and spends 30 to 35 days in London each year. As I have said, the Claimant and Defendant are brother and sister in law: the Claimant is the brother of the Defendant’s husband and she is the sister of the Claimant’s wife. She has a house in Kuwait with her husband. There is an issue about the Defendant’s residence which I will discuss later, but it is common ground that until at least 19 September 2017 she lived at 22 Ennismore Mews, London SW7 (22EM), whilst also maintaining a house in Kuwait.”

11. This libel claim arises out of the property litigation in 2016 – 2017 between the Claimant and Defendant (together with her husband and son) about the ownership of 22EM. This property was at the time owned by the Claimant, but the Defendant’s case was that he agreed to sell it to her husband in 1992. The Claimant contended that there was no such agreement. 22EM was owned by a company called Fourstar Limited (‘Fourstar’) in a trust structure for the benefit of the Claimant’s son.

12. The Defendant’s family commenced a claim for proprietary estoppel against the Claimant and Fourstar in the County Court. Fourstar issued its own claim seeking possession of 22EM and mesne profits; the two claims were consolidated and tried before His Honour Judge Gerald in the Central London County Court between 11 and 18 September 2017 (the 22EM Litigation). The litigation was very acrimonious.

13. On 18 September 2017, the last day of the trial, the Defendant encountered the Claimant, his wife and his solicitor in Pret a Manger on the Strand . There was an exchange between them, the details of which are disputed but do not matter for present purposes. She then took the photograph which accompanied the Messages complained of.

14. Later on 18 September 2017, the Defendant’s family discontinued their claim and agreed terms of settlement which were embodied in a consent order dated 19 September 2017. This required the Defendant and her family to deliver up vacant possession of 22EM by 4pm on 19 October 2017; and to pay costs in the sum of £550 000 to the Claimant and Fourstar and mesne profits of £242 880 to Fourstar. The Defendant vacated 22EM the same day and went to live with her daughter in London. Around the same time, she sent the Messages that are complained of. Transcribed from the official recording by eScribers 5

15. As I have said, the members of the WhatsApp group to whom the Messages were sent are identified by name in Schedule A to the APOC and are based in the countries appearing by their name. It is expressly pleaded that these individuals read the words in the countries in which they live, and not the UK or anywhere else. The Claimant’s evidence in his Third Witness Statement at [23] is that, ‘There are perhaps a dozen names in the WhatsApp Group that I have a very close relationship with… There are perhaps 12 names for people whom I recognise but have no contact with. There a further dozen names that I do not recognise.’

16. Immediately after publication, the Defendant left the WhatsApp Group. She is aware that at least two of its members published messages defending and praising the Claimant (see the Defendant’s Second Witness Statement at [78]-[80]).”

15. And the procedural background to these proceedings up to the time that the matter was in front of Julian Knowles J are set out in paragraphs 17 to 25: “17. The procedural history to this claim is as follows.

18. The Claimant states that he learned of the words complained of on 19 September 2017. His lawyers wrote a letter before action on 20 September 2017 which was delivered to 22EM.

19. On 26 September 2017 the Claimant issued a Claim Form and filed Particulars of Claim seeking £25 000 in damages and an injunction against the Defendant in both defamation and harassment. The harassment claim was later discontinued. The same day the Claimant sought to serve these on the Defendant at 22EM, together with an Application Notice by which the Claimant sought an interim injunction against the Defendant in both harassment and defamation (the Interim Injunction Application). On 4 October 2017 Nicklin J heard the Interim Injunction Application and rejected it.

20. On 24 May 2018 the Claimant applied for judgment in default in respect of his defamation claim, together with summary disposal pursuant to s 8 of the DA 1996 (the Default Judgment Application). On 26 June 2018 Nicklin J heard the Default Judgment Application. I have an approved transcript of his judgment. He held that the Defendant’s messages were seriously defamatory of the Claimant, that the claim satisfied the requirement of serious harm under s 1 of the DA 2013 , and that it warranted at least £10 000 in damages (the maximum award available under the summary disposal procedure). He also granted an injunction to restrain the Defendant from making further Transcribed from the official recording by eScribers 6 similar publications.

21. Taking matters thereafter shortly, in due course the Defendant says that she became aware of the proceedings for the first time and applied to set aside the judgment in default. That application was granted by consent by Warby J on 24 October 2018.

22. On 7 November 2018 the Claimant filed and served his APOC. On 5 December 2018 the Defendant filed and served her Defence. This alleged, inter alia , that the words were published on an occasion of qualified privilege and that the action constituted a Jameel abuse of process. On 25 January 2019 the Claimant served his Reply taking issue with the Defence and alleging that the Defendant had acted maliciously.

23. On 28 January 2009 the parties exchanged Costs Budgets. The Claimant’s Budget is £537 431.93. The Defendant’s (which includes a substantial sum for expert evidence) is £409 780.33.

24. On 30 January 2009 the Defendant made this application.

25. On 29 March 2019 the Claimant applied to amend his Claim Form to increase the amount of damages claimed to £50 000 and for an order pursuant to s 12 of the DA 2013 that the Defendant publish a summary of the court’s judgment in the event that it gives judgment in the Claimant’s favour. The Defendant consented to the application she says, on grounds of proportionality.”

16. After that judgment was handed down, further steps occurred between that time and the making of the orders that have led to the hearing in front of me. The defendant had served a defence which did not contain a plea that the allegations complained of were true. On 24 June 2021, the defendant applied to amend her defence to introduce a defence of truth. That application was dismissed, and she was ordered to pay the costs. It appears that it was those costs which became the subject of the unless order to which I have referred, which resulted in the default judgment, which, in turn, resulted in the order for a remedies hearing in front of me.

17. In the course of considering the defendant’s application in front of him, Julian Knowles J had to consider the law relating to serious harm, and then to apply that law to the facts of the case as they then appeared to him. He carried out the exercise of applying those principles, beginning at paragraph 93 and continuing up until paragraph 101.

18. Now, as I indicated before I began delivering this judgment with regard to any references that I might make to earlier judgments or orders of the court, all that is in those paragraphs could be read into this judgment. However, I will highlight the following points.

19. In considering the meanings complained of by the claimant, the judge said this at paragraph 93: “Obviously, they are very serious. They are of dishonest Transcribed from the official recording by eScribers 7 conduct by him towards a family member and of lying on oath.”

20. And at that stage, the judge referred to the other substantive judgment that I have the benefit of today; that is to say the judgment of Nicklin J dated 26 June 2018, which I will come back to in a minute. The judge quoted these words from paragraph 16 of Nicklin J’s judgment: “That is something which clearly touches upon the claimant’s personal integrity and, indeed, his core attributes. This was a seriously defamatory allegation.”

21. Julian Knowles J then went on in paragraph 94 to consider the pleading that, “The claimant and all the publishees of the messages are Muslim, such that the allegation of having lied after swearing on the Quran is particularly damaging and distressing to the claimant.” And he accepted that was a factor that was capable of exacerbating the extent of the harm suffered by the claimant over and above that flowing from the allegation of having lied on oath.

22. At paragraph 95, Julian Knowles J turned to consider the question of the extent of publication as rehearsed in his judgment, which I have not read out in full. The publication was directly made to 34 individuals who were members of the claimant’s close extended family. The judge said “That is a comparatively small number, but it is not trivial.” Again, he cited from Nicklin J’s judgment at paragraph 18, where Nicklin J, referring to well- known principles to be extracted from other cases, said with regard to seriousness and the determination of seriousness, “… this is not a numbers game as frequently has been said in the authorities. An allegation that is published strategically or targeted to a group of people who are important to the individual claimant may cause more damage to a claimant’s reputation than indiscriminate publication to many more people.”

23. In paragraph 97, Julian Knowles J picked up the contents of paragraph 23 of the claimant’s third witness statement which he had already cited in paragraph 15 of his judgment.

24. And then in paragraph 98, the judge summarised the contents of certain paragraphs of the claimant’s first witness statement: “Paragraphs [54]-[59] of the Claimant’s first Witness Statement are relevant. In those paragraphs the Claimant said he found the messages extremely distressing. He did not lie to the court when he gave evidence about the ownership of 22EM. He said the messages are highly damaging to him within his family. To be accused of stealing from his brother is ‘deeply wounding’. Without an understanding of the matters involved he is concerned that people who read the allegations may have suspicions about him. He said the publishees are members of his wider family and Transcribed from the official recording by eScribers 8 he cares a great deal for them and he holds their opinion of him in high regard. He said that he believes the Defendant deliberately elected to make the statements to this group intentionally to hurt him as much as possible. He also said that the statements are likely to damage his professional reputation more widely among the Palestinian diaspora. He also explained his concern that the messages might be forwarded to others. Finally, he said he has a significant profile in the Middle East because of his professional and philanthropic activities and he has a reputation as a man of integrity.”

25. At paragraph 99, the judge turned to the ‘grapevine effect’ which is part of the claimant’s pleaded case, and he said this: “There is evidence that the messages have been disseminated outside the WhatsApp group.” He then made reference to the fact that in his third witness statement at paragraph 28: “The claimant said he has become aware through family and friends that ‘many people’ in London and the Middle East have become aware of the statements complained of.”

26. The judge then referred to the evidence of Hassib Bishara and what he said in his witness statement. And he then referred to the evidence of the claimant’s daughter, Gheeda Al Sadik and the evidence that she had given in her witness statement about onward circulation of the messages complained of by the claimant.

27. At paragraph 100, the judge said that he was, “Satisfied that the defendant has not shown the claimant has no realistic prospect of showing the publication of messages has caused the claimant serious harm, or that it is likely to do so.” And he based that conclusion on the following six matters, “a. b. c. d. e. f. The very serious nature of the allegations, striking as they do at the claimant’s honesty and integrity; The religious component which is capable of exacerbating the harm suffered by the claimant; The claimant’s standing and reputation in the Middle East and elsewhere, including London; The identity of the person who sent them, namely his wife’s sister which could cause some to think that there must be some substance in accusations; The targeted nature of the persons to whom the messages were sent, that is to say family members; The scale of the publication both directly to the WhatsApp group and by further dissemination to those who do not know the claimant.” Transcribed from the official recording by eScribers 9 He said this with regard to the last of those points: “The matter cannot be quantified but, on the evidence, is at least arguably significant.”

28. At paragraph 101, Julian Knowles J said that in his analysis he had not overlooked the fact there was no direct evidence of adverse impact. Indeed, the evidence shows that some people plainly have pushed back against the allegations, and, if you like, stuck up for the claimant’s integrity in spite of the allegations being made.

29. Finally, so far as this judgment is concerned, in dealing with the allegation of abuse of process, the judge returned, at paragraph 108, to the allegation that this type of publication in this form to this number of people was likely to have a ‘grapevine effect’, and he said this: “A well-known feature of harm to reputation is the propensity for defamatory statements ‘to percolate through underground channels and contaminate hidden springs’: Slipper v BBC [1991] 1 QB 283 , 300.”

30. The witnesses to whose evidence Julian Knowles J made reference have each been called as witnesses in the hearing today. They have each verified their witness statements, that is to say: the claimant has verified his first, second and third witness statements; Mr Bishara has verified his witness statement; and the claimant’s daughter has verified her witness statements.

31. It seems perfectly clear to me, from the content of those witness statements and the additional evidence which the witnesses added orally, that there has plainly been, as one would expect there is a very real risk of happening, a significant degree of dissemination of these allegations beyond the original 34 people to whom the defendant circulated them. That is, in my judgment, entirely unsurprising. The fact is the allegations were very serious. They were quite likely to be picked up by people who were interested in the claimant, his personal life and his business conduct, whether by way of salacious gossip or by way of serious concern as to what he had been up to and whether he was dishonest, guilty of criminal conduct, and so forth. As the claimant’s daughter explained, people gossip about these matters.

32. It seems clear to me, from the evidence that I have heard and read, that these allegations have circulated and, indeed, are still live and have a propensity still to remain in circulation. Quite apart from the particular facts of this case, this is a very common phenomenon of social media in particular where the so-called ‘grapevine effect’ is well recognised as a matter of principle in the authorities as being something that may happen, even if there is no detectable spread of allegations beyond the first circle of people to whom they are published. It is also a phenomenon which is very familiar to the courts on the facts of different cases that come in front of the courts. Obviously, the facts of each case are different, but I am not at all surprised to hear the evidence of the claimant’s daughter, which she gave orally, that this is a phenomenon that is applicable to these particular messages and that it has had that effect.

33. I think that the defendant, in some of what she said today, either by way of questions that she asked the witnesses or by way of statements that she made in the course of the hearing, was suggesting that really she said this to a group of family members and, effectively, it was nobody’s business to push the allegations out further than that. And part of her presentation in front of me today has been to ask, well, who did it and how did they do it, and when did they Transcribed from the official recording by eScribers 10 first do it and where is the proof? Now, as far as that is concerned, it may be that the defendant did not realise the risk that this type of WhatsApp messaging can result in; but that is not a matter that she can rely on as a matter of law in answer to the claimant’s claim for damages. Once you have sent out these types of serious and significant allegations to people, it is a sadly predictable result that they will be spread.

34. As far as the question of whether that, in fact, happened, which I think comprised the other main limb of the defendant’s stance on this aspect of the case, I am entirely satisfied, having heard the witnesses, that their account of how other people have passed these allegations back to them, when they did so, and the circumstances in which they do so is an accurate and reliable account. I detected no reason why these witnesses should have been untruthful about those matters. And what they said appears to be entirely coherent as to their actual experience of having these allegations fed back to them from various sources in the way that they describe in their evidence.

35. Some points were made on behalf of the defendant about timing and the speed with which these allegations reached, I think, both Mr Bishara and the claimant’s daughter. I want to make clear that I have taken those arguments into account. However, Mr Bishara was absolutely clear that the contents of his witness statement are accurate. I see no reason to doubt that re- affirmation of his witness evidence. And the claimant’s daughter, equally, was clear that these allegations were first communicated back to her when she was, if I understand correctly, in a coffee shop with her son on the morning after they had first been posted.

36. I really do not think that trying to catch people out about the details of the timing of events that happened years ago is appropriate or productive in this particular context. The simple fact is that very soon after the defendant had sent those messages out to the original 34 people, they were already being passed on, in my judgment, on the evidence, to, for example, the claimant’s daughter and then, or very soon afterwards, to Mr Bishara. And I have little doubt that this is simply symptomatic of wider dissemination, although how wide the dissemination was and has been it is impossible to know.

37. The other point that I should mention is that in the run up to this hearing there has been a flurry of activity on the defendant’s part. Questions were raised about another order which I have not yet mentioned, namely an order of 17 March 2022, by which it was ordered that the witnesses for the claimant were permitted to give evidence at this remedies hearing by way of video-link from Dubai. Questions were raised, really, about how it came to be that the court was asked to make that order in respect of Mr Bishara when it has become clear, from his evidence before me, that he was in London on 17 March 2022, having arrived here in February, and that he only went back to Dubai yesterday, 30 March 2022. Now, the suggestion was made that this reflected on his credibility. But I want to make it clear that I have considered that carefully and I do not consider that there is any basis to attack his credibility on those grounds.

38. What appears to have happened – and there is no reason to doubt the accuracy of the contents of the correspondence involving the claimant’s solicitors – is that those solicitors applied for the order for evidence to be given by video-link from Dubai on the understanding (not having spoken to him directly) that Mr Bishara was, in fact, absent in Dubai on 17 March 2022 and would continue to be so until today’s hearing. In fact, as I have said, he came to England, on his evidence, most recently on 22 February 2022 and returned on 30 March. His position is that he has been a regular visitor to this country for the last 30 years, coming to London typically every six or eight weeks. He lives in Dubai but he has, I think, a business and interests, and certainly a residence, in this country. His position is that he goes backwards Transcribed from the official recording by eScribers 11 and forwards, as he is free to do, in accordance with what suits the convenience of himself and his wife, and that is what he did on this occasion. And I cannot see anything at all sinister about what has happened. He was perfectly open in his evidence that it was only when the claimant’s daughter, Rana, went to visit him here in London, she having learnt that he was here, that he realised that there was a hearing in this case on 31 March. But that did not stop him going back home on 30 March because that suited his convenience. There is nothing, in my view, sinister about that at all.

39. The other aspect that was raised by a second witness statement of the defendant’s daughter, Rana Sadik, was to do with a challenge as to whether people really had been in touch with, in particular, the claimant’s daughter, as she said. In that witness statement, the defendant’s daughter sets out her attempts, effectively, to question these various people as to whether they truly have been in touch with the claimant’s daughter, as the claimant’s daughter suggests. I have looked at all of that evidence even though there is no formal application to put it in front of me, and Mr Munden says that it should not be considered and that is out of time. But it seems to me that even if it was admitted in evidence, and taken at its highest value, all it shows is that attempts to question those witnesses have not resulted in any of them saying that the evidence of the claimant’s daughter is wrong. Broadly speaking, what it shows is that they are reluctant to become further involved and they are not supporting the suggestion that their evidence has been misrepresented or fabricated in some way.

40. That also, in my view, explains another criticism made by the defendant in her closing statement, namely that there has been no direct evidence from all those people. That seems to me unsurprising because people very often, in this type of dispute, do not want to become involved. It does not diminish the credibility of the evidence of the claimant’s daughter that people have, indeed, contacted her, as she says, reflecting the fact that these allegations have been spread around.

41. There is also, I mention finally, the question of proportionality. Of course, if people are willing to give evidence, the claimant could have produced possibly a long list of people who had heard of these allegations one way or another. But in my judgment, it is an entirely proportionate way to carry on with this claim and to produce the volume of witness evidence which has been produced in this case. And, as I say, I see no grounds for doubting the accuracy of the evidence of the claimant’s witnesses, having seen them give evidence and having considered the probabilities as well as the contents of their written and oral evidence.

42. One point made on the defendant’s behalf by her daughter was to do with the question of whether one can satisfactorily assess the credibility and demeanour of witnesses by video- link compared to live appearance in court; and this is a matter that was particularly relevant perhaps to Mr Bishara. I just say two things about that which I also said during the course of the dignified statement that the defendant made at the end of the case and that her daughter pursued in part on her behalf. First of all, in this particular case I do not consider there is any difficulty about assessing the credibility of the witnesses. The quality of the video reception was extremely good, and I could see the witnesses very clearly. But secondly, and although the courts proceed on the principle that assessment of demeanour is something which can in principle be carried out accurately by judges and is a telling and important aspect of assessing where the truth lies, experience shows that, in fact, this it is not always the case. So the whole question of assessing demeanour very often is not the most important factor in deciding on whether to accept the evidence of a witness or not. What one looks for, typically, is corroboration for contemporary events, as well as taking into account considerations of probability. And as I have said, it seems to me that the probability is very clear that matters Transcribed from the official recording by eScribers 12 did unfold as the claimant’s witnesses have explained in terms of the allegations spreading wider than the 34 people to whom the messages were originally sent.

43. That brings me on to the first of the heads of relief and the question of the measure of damages. Mr Munden has helpfully set out in his skeleton argument well-known authorities on this topic, principally the decision of Warby J in the case of Barron v Vines [2016] EWHC 1226 (QB), which, in turn, internally cites other authorities.

44. As the case law makes clear, the purpose of damages in the law of libel is generally to serve three ends; first, to compensate the claimant for the damage to his reputation; secondly, to vindicate his good name; and, thirdly, to take account of the distress, hurt and humiliation which the defamatory publication has caused. And then there are a number of factors about the way in which one approaches the measure of damages. I do not propose to read out all those factors; they are very well known and well established. And obviously one looks at things like how serious the allegation is, how widespread it has been, which aspects of the claimant’s life it impacts upon, its propensity to percolate and spread, and so forth.

45. Under the heading of ‘Compensation’ Mr Munden made the following principal submissions. In respect of gravity, he said that the statements complained of convey the meaning that the claimant arranged to rob his brother’s house, lied even after having sworn on the Quran to tell the truth, and committed perjury in order to dishonestly promote his interests at the expense of his own brother.

46. Before dealing further with that, I should make reference to the citation of Nicklin J on one topic which I have not already picked up, essentially, through the medium of the judgment of Julian Knowles J, and that is the significance of this being a default judgment. That position was summarised by Nicklin J in paragraph 7 of his judgment of 26 June 2018 in the context of what was then in front of him, which is to say that he had granted judgment in default of an acknowledgement of service or a defence. And he said this at paragraph 7: “The pleaded meaning is one which is not absurd or not manifestly incapable of being borne by the words. It is clear those words are defamatory. So according to the authorities I should assess the claim in which I have granted judgment today on the basis that the words complained of that were published to roughly 34 people that were in the WhatsApp group bear the meanings set out in the particulars of claim.” That, in my judgment, is a correct summary of the law which applies to this hearing as much as it did to that previous hearing in front of Nicklin J. And, therefore, Mr Munden’s starting- point that this is the meaning of the statements complained of is the correct starting-point.

47. Mr Munden then argues that the allegations strike directly at the claimant’s integrity, loyalty to his family, honesty, and religious beliefs. They are very seriously defamatory and hurtful, particularly to a man who has worked extremely hard not only in business but also in philanthropic endeavours, including helping members of his family, including the defendant, as the claimant explains in his evidence.

48. Mr Munden then cites from one of the claimant’s witness statements: Transcribed from the official recording by eScribers 13 “The statements go to the very core of my character and being and concern my dealings with family and my stance as someone who was once a child refugee from Palestine. I believe the defendant chose her words and statements deliberately in a calculating manner to cause maximum damage and distress to me.”

49. Mr Munden next submits that the allegation of lying after swearing on the Quran is obviously more significant here where both the claimant and the publishees are Muslim, as Julian Knowles J had noted.

50. Mr Munden then cites part of the evidence of Mr Bishara, stating that the claimant is an honourable man. The nature of the statements are clearly intended to cause him maximum distress and attack those matters that are most important to him and bring his family’s integrity and his Palestinian heritage.

51. And then, again, Mr Munden refers to parts of Nicklin J’s judgment, which I think I have already quoted, possibly through the medium of Julian Knowles J’s judgment, about the extent to which the allegations were serious and defamatory and struck at additional character aspects of the claimant’s life. And Julian Knowles J made similar comments.

52. Next, under ‘Compensation’, Mr Munden deals with the extent of publication. I think that I have probably covered that pretty fully already. The 34 publishees are highly significant, because at least 12 of them are close family members of the claimant. Very often, publication to people close to the claimant is more harmful and hurtful than publication to strangers. There is then the ‘grapevine effect’ which I have mentioned more than once. And Mr Munden highlights, in particular, that the claimant’s daughter details telephone calls and communications she received from at least 12 individuals demonstrating the allegations had been circulated in London and elsewhere. And that she makes clear that what she has said is not an exhaustive list and she is aware that “many others would have contacted my siblings and even my father.” And he also points out that the claimant’s own evidence is, “The claimant has become aware through family and friends that many people in London and the Middle East have now become aware of the statements.” And again, there is talk in the daughter’s evidence of the claims being circulated in the wider community in London and elsewhere.

53. Then, under the heading ‘Vindication’, Mr Munden reminds me of the jurisprudence which points out the significance of the size of the award as being a marker of what the claimant has recovered and whether his complaints have been met by vindication. Put shortly, if a claimant was to complain of a very serious defamation and was to be awarded only a modest amount of money, the thinking is that people would point to that and say, well, it was not really all that serious, or perhaps he did not succeed in full. Whereas, if they can see a sizeable award, that has the effect of demonstrating that the allegations are without foundation. The law cannot repair the reputation of a person which is harmed by a defamatory publication. All that it can do in this regard is to provide compensation by way of damages to reflect the seriousness of the harm. Mr Munden points out, correctly, that in this case there has been no acknowledgment of wrongdoing, no expression of regret, no apology, and no retraction by the defendant. Transcribed from the official recording by eScribers 14

54. And then under the question of ‘Distress, Hurt and Humiliation’ Mr Munden goes over the same evidence relating to the defendant’s conduct and the injury to the claimant’s feelings. In particular, he highlights a passage from one of the witness statements of the claimant in which he says that he feels, “… a great sadness to think my lifetime’s work in helping my family and the wider Al Sadik family as well as the philanthropic work for the Palestinian community and general integrity of my dealings has been undone with some bitter and carefully placed words from the defendant.”

55. It is perfectly clear to me on that basis, which is the basis upon which I am required to proceed and it is appropriate to proceed, that the claimant deserves a good reputation both in business and as a family man and, also, as a philanthropist and as somebody who has not given dishonest evidence to the court let alone having sworn on the Quran. Further, at the age of 78 to find serious allegations like this percolating in the way that they do is deeply distressing and deeply injurious to feelings and does cause a lot of upset. It is inevitable that this will be so, and that is another matter which has a bearing on the appropriate measure of damages.

56. It is quite clear, in my judgment, that the defendant is not at all repentant about what she has done. And it is quite clear that there have been specific incidents in which she, the defendant, has shown a belligerent approach to these issues, and particularly in contacting the claimant’s wife. One of them is in the claimant’s second witness statement at paragraph 10 where he complains that the defendant sent abusive and vitriolic WhatsApp messages to his wife on 10 January 2018. There is a similar complaint in respect of the further message sent to his wife by the defendant on 17 April 2018. And his evidence at paragraph 12 is: “It is clear from these messages the defendant remains completely unrepentant about the defamatory statements she posted in the WhatsApp group on 19 September 2019, and this is extremely distressing to both me and my wife.” And it seems to me from what has happened today that that remains the defendant’s position, and that she is unrepentant.

57. The conduct of the litigation, and the conduct of the hearing today in cross-examining the claimant’s witnesses, as the defendant has done, and maintaining the stance she has done, are all matters that are capable of aggravating, that is increasing, the award of damages which would otherwise be appropriate. And in my judgment, they are plainly significant in this case, and plainly do aggravate the damages which it would otherwise be appropriate to award.

58. Just to be clear on this for the benefit of the defendant, if somebody publishes something which the court finds to be unjustified and harmful to reputation, the defendant can reduce the harmful effect of that by, for example, apologising, withdrawing, and expressing remorse; or the defendant may do nothing, in which case the position is essentially neutral; or the defendant can make things worse by persisting in the allegations, and by the way in which the litigation is conducted. And it is the third of those situations that has arisen in this case.

59. Mr Munden, finally, has asked for an award of damages in the sum of £50,000 which is the increased amount which the claimant now seeks. When the matter was in front of Nicklin Transcribed from the official recording by eScribers 15 J on 26 June 2018, the limit of the claimant’s claim then was £10,000, and Nicklin J said at paragraph 25 of his judgment, “I am satisfied an award in excess of £10,000 would be appropriate possibly by quite some margin.” At that time, it seems to me, the evidence of indirect dissemination was less clear than it is in front of me today, and the persistence in the allegations and the lack of retraction had obviously not subsisted for as long as it has now that the matter is in front of me.

60. As to the guidance to be obtained by considering awards which have been made in other cases, in Doyle v Smith [2019] EMLR 19 , Warby J said at [131]: “The authorities suggest that the Court should have regard to other awards made by Judges and/or approved by the Court of Appeal, in respect of comparable libels”.

61. At the same time, as Eady J said in Al Amoudi v Kifle [2013] EWHC 293 (QB) at [24]: “comparable awards … are … of limited assistance only because circumstances vary so much from one case to another”. Further, as Nicklin J said in Monir v Wood [2018] EWHC 3525 at [228]: “Damages for libel cannot be calculated on any mathematical basis. By definition, they seek to provide compensation for harm that it is almost impossible to quantify in monetary terms. The Court attempts to achieve consistency in awards by applying the principles I have identified above, but in reality, no case presents exactly the same circumstances and only some level of commonality or general principle can be extracted”.

62. It seems to me that £50,000 is an appropriate award of damages in this case having regard to the seriousness of the defamatory statements, the degree of direct circulation, the plain degree of extended ‘grapevine’ circulation, and the defendant’s completely unrepentant attitude to the litigation, persisted in, as I say, up to today and in the course of today’s hearing.

63. Nothing less than that, in my judgment, would satisfy the three principal purposes of an award of damages in this case, namely to compensate the claimant for harm, for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. And here the claimant repeated in his evidence to me today orally the seriousness of the hurt and the distress to him that has been occasioned.

64. So for those reasons, I propose to make an award of damages in the sum of £50,000 that is sought, which includes aggravated damages.

65. I also propose to grant an injunction to restrain a further publication.

66. So the only matter that remains to be decided is whether to make an order requiring the defendant to publish a summary of the judgment. Nicklin J, when the matter was in front of him on 26 June 2018, was not persuaded that this remedy, that is ordering the publication of a summary judgment, was appropriate. The position, in my judgment, in front of me today is not significantly different.

67. In the course of reflecting on this judgment before delivering it, I have revisited Section 12 of the Defamation Act 2013 , which is the section which gives the court a discretion to order the defendant to publish a summary of the judgment; I have considered the decision of Nicklin J in Monir v Wood [2018] EWHC 3525 (QB) , in which Nicklin J discussed the principles at Transcribed from the official recording by eScribers 16 paragraphs 239 and 241; and I have looked at my own judgment in Glenn v Kline [2021] EWHC 468 (QB), in which an application was made for this to be done, to which I acceded.

68. It is not clear to me whether the defendant still is part of this WhatsApp group. In any event, I dare say that it could be reconstituted fairly easily. I also understand the force of Mr Munden’s point, that it is at least arguable that a retraction or a statement coming from the defendant summarising the judgment and possibly providing a link to this full ruling (which is what I ordered in Glenn v Kline that the defendant should do) would be more effective in terms of clarifying the position and telling people what the outcome of the proceedings has been than the claimant, himself, circulating the outcome of the judgement. But as against that, the question is always what is appropriate and proportionate.

69. On the one hand, the claimant will get his vindication from the sum that I have awarded. Further, he will be able to tell people that he succeeded and why he succeeded either in outline or by reference to this detailed judgment. On the other hand, making an order against the defendant that she should publish the summary is an incursion on her rights of freedom of expression. And, it seems to me, it probably would require some order requiring her to reconstitute the WhatsApp group as well as to send the summary in whatever the form the court thought was appropriate to the original publishees. Overall, I am not persuaded that that is an appropriate course to take in all the circumstances.

70. The position is that in other cases sometimes the court has ordered this relief and in some cases it has not. The only case I am aware of – I am sure there are others – where the court has is the case of Serafin v Malkiewicz [2019] EWCA Civ 852 , which is referred to in Glenn v Kline , but there was no reasoning about that because it arose in front of the Court of Appeal at the stage of the order being sought; and so one does not get any guidance from that judgment.

71. Doing the best I can, and influenced but not determinatively by what Nicklin J said and the view that he took, I am not persuaded that this will be more effective in terms of vindication than simply allowing the claimant to disseminate the outcome of the hearing for himself.

72. So I propose to decline the third head of relief that Mr Munden has asked for, which is an order requiring the defendant to publish a summary of this judgment. -------------- This transcript has been approved by the Judge Transcribed from the official recording by eScribers 17