The Court Look At Who Is Responsible For The Publication Of A Defamatory Comment In Recent Decision

Mir v Hussain [2024] EWHC 56 (KB)

Case summary

The First Defendant founded a political party known as Mohajir Qaumi Movement (MQM). The Claimant was the treasury head of MQM and a senior member of its controlling body. The Claimant pursued a libel claim against the First Defendant and seven other Defendants concerning four publications which made allegations of dishonesty against him. The publications included two press releases on MQM’s website and two videos of a demonstration that took place in Wembley on 27 November 2022.

The words complained of were not spoken or written by the First Defendant and therefore he argued that the Claimant did not have any reasonable prospect of demonstrating that he was responsible for the publications. The First Defendant applied for summary judgment and/or strike out of the claim on this basis. This application was heard by Mr Justice Chamberlain at a hearing on 17 January 2024. The issue to be decided was whether the First Defendant could be responsible for the publication in the circumstances.

It was well established at common law that each person who knowingly participates in the publication of a defamatory comment, or causes or authorises or ratifies its publications, is jointly and severally liable. However, Section 10 of the Defamation Act 2013 (DA 2013) confirms that the Court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of, unless it is not reasonably practicable for an action to be brought against the author, editor or publisher. The only exception to this is a person can be liable for publications of his agent.

Originally, the Claimant pleaded that the First Defendant was the “editor” of the publications and that he was knowingly involved in and/or knowingly authorised the publication on the MQM Website and Facebook page. The Claimant later applied to amend his Particulars of Claim to include as an alternative that the First Defendant was responsible as an agent for the words complained of.

The First Defendant submitted that it was inconsistent for the Claimant to argue that he had been knowingly involved and authorised the publication and at the same time delegated control to those who had published the content.

The First Defendant further submitted that the argument run by the Claimant was entirely unsupported by evidence and that to be successful, he would need to show that the relevant conduct “must have been undertaken in the course of, and for the purpose of executing the task that the principal had delegated to the agent” as confirmed by Nicklin J in Monir. The First Defendant took the view that the Claimant had not provided any evidence of any agency link between the First Defendant and those involved in the publications.

Court ruling

The Judge did not accept that the Claimant’s pleaded case was inconsistent. He acknowledged that the Claimant did not know who authorised the publications and in what circumstances and therefore that he was entitled to plead a primary case and an alternative case (which he did).

The Judge did make it clear that it is possible to determine the issue of publication at a summary stage as established in Bataille v Newland [2002] All ER (D) 480 (Jul). The Judge did, however, accept that whilst it is possible in principle, it is often difficult to determine this issue summarily. The question of who has participated in a publication will usually only be in the Defendant’s knowledge and therefore evidence will be important. As such, the issue of publication is usually an issue that needs to be determined at trial.

The Judge considered the evidence before him, in particular the First Defendant’s evidence as to the decision-making structure of MQM, how publications were authorised prior to 2014, the website and the Facebook page. The Judge took the view that in light of all of the evidence, it would be possible to conclude that the First Defendant had delegated the task of publishing material to the publishers. The Judge therefore felt that the First Defendant had not shown that either the case as originally pleaded or the new alternative case had no real prospects of success. He was therefore unsuccessful in his application. The Judge ultimately felt that the precise nature of the relationship between the First Defendant and the publisher was unsuitable for summary determination.

Comment

The case of Mir v Hussain shows how difficult it is for a defendant to seek summary judgment in a defamation case on the grounds that they were not the publisher of the comment. Whilst not impossible, the issue of publication is usually down to the evidence and therefore in most cases this is not an issue that is suitable for summary determination.