Case Law: Shakil-Ur-Rahman v ARY Network Limited, Claimant awarded “top bracket” defamation damages – Laura Parnell

16 12 2016

mir-shakeel-ur-rehman-geo-tv1The High Court has awarded Mir Shakil-ur-Rahman, the Chief Executive of Pakistan’s largest media group, one of the highest compensatory awards granted in recent years following his defamation claim against ARY Network Limited (a UK broadcaster), and its Chief Operating Officer, Fayaz Ghafoor ([2016] EWHC 3110 (QB)).

Background

Mir Shakil-ur-Rahman brought a claim against the Defendants for both defamation and harassment. The defamation claim related to 24 episodes of the news and current affairs programme, Kara Sach, which were broadcastin Urdu in the UK. The broadcasts portrayed Mir Shakil-ur-Rahman as treasonous towards Pakistan, in that, amongst many other things, he had accepted money from abroad to promote foreign agendas to create unrest in Pakistan and had tried to ridicule the teachings of Islam. The broadcasts were alleged to have reached around 200,000 viewers in the UK.

Considering the number of broadcasts complained of, a trial of preliminary issues was ordered whereby the following was considered: (i) the meaning of the relevant words; and (ii) whether such words are fact or the expression of opinion. Mr Justice Haddon-Cave had the considerable task of watching each of the broadcasts, using the English translation of the transcripts to assist in his assessment of the tone and meaning of each programme. The Judge held in November 2015 that “a recurrent theme of many of the broadcasts is that the Claimant is a traitor to Pakistan“, and he identified the words/statements which could be classified as comment and those which could be considered as fact.

Whether the words in question were in fact defamatory was determined at the subsequent trial in November 2016.

The Judgment

Though the harassment claim was dismissed, none of the allegations relating to defamation were successfully defended at trial and Sir David Eady took the view that the relevant words were clearly defamatory. Those allegations made after 1 January 2014 (i.e. following the introduction of the Defamation Act 2013), were held to cause, or were likely to cause serious harm to Mir Shakil-ur-Rahman’s reputation.

A successful defamation claimant is entitled to an award of general damages which must be sufficient to compensate the claimant for the damage to their reputation; vindicate their good name; and take account of the distress, hurt and humiliation which the publication has caused. Damages should be proportionate to the seriousness of the defamation and the extent of publication. ‘Special damages’ may also be awarded for actual monetary loss suffered by the claimant as a result of the publication. ‘Aggravated damages’ may be awarded where the conduct of the defendant has increased the subjective hurt suffered by the claimant. Such damages will be available where the defendant has acted out of malevolence or spite, or where the defendant’s conduct has been improper, unjustifiable or lacking in bona fides.

As there were multiple libels, the Judge had to decide whether to opt for a single figure to cover the 24 programmes, or to fix individual sums for each publication complained of. In this instance, the Judge chose to award an overall figure of £185,000 as compensation.

Explaining the level of the award, Sir David Eady stated that the allegations were distinctive and very serious, going to the “core attributes” of the Claimant’s personality. Moreover, in respect of most of the allegations no substantive defence had been put forward and there had been no withdrawal or apology. The fact that the defence of truth was on the record until it was struck out just before the trial was an aggravating element. There were no mitigating factors in favour of the Defendants which might reduce the award (see an earlier blog post on mitigation of defamation damages here).

Comment

As Sir David Eady noted, the award is clearly at the “top of the bracket” and this level of damages is undoubtedly one of the highest compensatory awards given in recent years. The last case awarding damages in this region was in 2013 where the false allegation of human trafficking was made by the Defendants (Al-Amoudi v Kifle and another [2013] EWHC 293 (QB)). Whilst the Court of Appeal confirmed in 2012 that the “ceiling figure” for damages in defamation is around £275,000, there has not been anything approaching that level since the coming into force of the Defamation Act.

It was noted that the Defendants’ case evolved over time in light of various court rulings, but ultimately their defences of truth/justification and also of fair comment/honest opinion, were struck out prior to the trial. No apology or withdrawal was made in respect of any of the broadcasts, and the numerous programmes (over a 100) relied upon to support the harassment claim clearly acted as aggravating factors.

However, the Defendants did make strong submissions in relation to causation, and it was emphasised that any damage caused to the Claimant’s esteem outside of the jurisdiction must be put to one side together with the distress suffered as a result of other allegations and publications, for which the Defendants were not responsible.

Though case law can act as guidance on quantum, the Judge commented that “to a large extent each case turns on its own facts“. Defamation claims can be seen as risky, and this again highlights the absence of an objective formula and the difficulty in precisely calculating potential damages. The gravity and scale of the publications were considered along with the “persistence” with which they were advanced, but ultimately, the level of damages one might be awarded will come down to each Judge’s “judgment and common sense“, and their determination of how this is put into effect.

The level of compensation given in this instance, can be taken as a sign of the “baselessness” of the allegations, and significant awards such as this will surely act as a warning to those responsible for publications or broadcasts. While any deterrent should not be so restrictive as to limit the freedom of expression, it seems right that anyone bearing such responsibility should be alert to the potential financial implications which might be involved when making statements which are arguably defamatory.

The damages award is not the end of this matter; the Court will hear submissions on injunctive relief and an order that the Defendants publish a summary of the judgment in due course.

This post originally appeared on the Scandalous! blog and is reproduced with permission and thanks.


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7 01 2017
Reform of the law of defamation – damages | cearta.ie

[…] there has been no award approaching this £275,000 level since the coming into force of the 2013 Act. The highest has been the £185,000 awarded in […]

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