Sayed Zulfikar Abbas Bukhari v Syed Tauqeer Bukhari [2023] EWHC 427 (KB)

“(1) A person must not pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. … (2) For the purposes of this section …, the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other. (3) Subsection (1) … does not apply to a course of conduct if the person who pursued it shows – (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.” (Emphasis added.)

“An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.”

“… Harassment is both a criminal offence under section 2 and a civil wrong under section 3. Under section 7(2), ‘references to harassing a person include alarming the person or causing the person distress’, but the term is not otherwise defined. It is, however, an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR). …”

“‘Conduct’ includes speech: s.7(4). But claims for harassment by publication are likely to be rare, because to comply with s.3 of the Human Rights Act 1998, the courts will hold that a course of conduct in the form of journalistic speech is reasonable under s.1(3)(c) of the 1997 Act unless the conduct is so unreasonable that it is necessary and proportionate to interfere with that speech in pursuit of one of the aims listed in art.10(2): Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB). In pleading a claim for harassment by publication, it will be essential to have that test in mind. See also McNally v Saunders [2021] EWHC 2012 (QB; [2022] EMLR 3, where the defendant was a ‘citizen journalist’ whose art.10 rights protected his postings from liability in harassment even thought their tone was ‘puerile and abrasive’. Indeed, nothing short of a conscious or negligent abuse of media freedom by a media defendant is likely to justify a finding of harassment, and such a case would be exceptional: Sube v News Group Newspapers Ltd [2020] EWHC 1125 (QB); [2020] EMLR 25.”

“When presented with a claim of this kind, the Court must be especially mindful of the threshold of gravity required before a finding of harassment can be made; and it must be careful to ensure that its approach is compatible with the human rights engaged by the particular facts of the case. In this case, as in all or most cases of alleged harassment by publication, there is a tension. On the one hand, the claimants have art.8 rights to respect for their private and family life and their home. On the other side are the publishers’ art.10 rights to convey information and ideas, and the rights of the public at large to receive such information and ideas. The PHA must be interpreted and applied in a way that upholds the art.8 rights but avoids undue interference with art.10 rights.”

“It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.”

“If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.”

“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”

“(1) it consists of a bare denial or otherwise sets out no coherent statement of facts, or (2) the facts it sets out, while coherent, would not amount in law to a defence to the claim even if true.” (Emphasis added.)

“The court may give summary judgment against a … defendant on the whole of a claim or on a particular issue if – (a) it considers that … (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” (a) it considers that … (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

“i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All E.R. 91; ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3; vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

“where the court holds that there is a defect in a pleading, it is normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right.”

“(1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating— (a) which of the allegations are denied; (b) which allegations they are unable to admit or deny, but which they require the claimant to prove; and (c) which allegations they admit. (2) Where the defendant denies an allegation— (a) they must state their reasons for doing so; and (b) if they intend to put forward a different version of events from that given by the claimant, they must state their own version. (3) If a defendant— (a) fails to deal with an allegation; but (b) sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant, the claimant is required to prove the allegation. (4) Where the claim includes a money claim, the claimant must prove any allegation relating to the amount of money claimed, unless the defendant expressly admits the allegation. (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.” (Emphasis added.)

“2.1 Statements of case should be confined to the information necessary to inform the other party of the nature of the case they have to meet. Such information should be set out concisely and in a manner proportionate to the subject matter of the claim. (Part 16 and the accompanying practice direction contain requirements for the contents of statements of case.) … Defamation … 4.3 Where a defendant relies on the defence under section 2 of the Defamation Act 2013 that the imputation conveyed by the statement complained of is substantially true, they must— (1) specify the imputation they contend is substantially true; and (2) give details of the matters on which they rely in support of that contention. … Harassment 10.1 This paragraph applies to claims for harassment arising from publication or threatened publication via the media, online, or in speech. … 10.4 A defendant must in any defence specifically admit or deny each act alleged in the particulars of claim to constitute part of a course of conduct amounting to harassment.”

“49 … Particulars provided in support of a plea of justification must be both sufficient and pleaded with proper particularity. The former requirement is met if the (properly pleaded) particulars are capable of proving the truth of the defamatory meaning sought to be justified. The latter requirement is a factor to be judged not by the number of particulars provided, but by the pleading of a succinct and clear summary of the essential (and relevant) facts relied on, enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it. … 58 The ‘precision of an indictment’ rule if it can be so described, does not more than require a defendant to comply with the well-established principle that in pleading a defence of justification he must identify the acts which the claimant is said to have committed and which are relied on to justify whichever imputation they are directed to support. 59 This principle has particular resonance when the charges are serious ones, as they are here. …” (Emphasis added.)

“It is denied that every tweet contains what is described as ‘a common theme’. It is admitted that many contain one or more the following assertions: that the Claimant is corrupt; that his family wealth has been derived from serious crime; that the Defendant and his father were victims of the Claimant; and the Claimant’s father’s, serious criminal conduct. Those assertions are true.”

“10. The acts of the Defendant described above constitute a course of conduct which amounts to harassment of the Claimant and which the Defendant knows or ought to know amounts to harassment of him. 11. In support of his case that the Defendant knows or ought to know that his course of conduct amounts to harassment the Claimant will rely on the fact that his solicitors, Stone White Solicitors, wrote to the Defendant by letter dated 10 December 2019 making a detailed complaint concerning the Defendant’s conduct, expressly pursuant to the Pre-Action Protocol for Media and Communications Claims, stating, amongst other things that the Defendant’s conduct was unreasonable and oppressive and had caused the Claimant serious alarm and distress as well as well-grounded fears that he and his family were being put in physical danger from those who might believe or respond to the Defendant’s campaign. 12. The Defendant did not reply to that letter. Rather he continued his campaign against the Claimant, Tweeting the following on 15 December 2019 (Tweet 195): Tell your solicitor [claimant’s Twitter handle] to file a case against me on Monday pls don’t wait till Wednesday. Looking forward to expose the TRUTH about your fathers money made from human trafficking, money laundering and illegal arms sales & your moneytrail to NAB. 13. Despite a follow up letter on 10 January 2020, the Defendant has failed to bring his campaign to a halt, or even to seek to justify his conduct.”

“7. It is denied as alleged in paragraph 10 of the amended particulars of claim that the acts of the Defendant relied on by the Claimant amount to harassment. The matters of which complaint are made by the Claimant are substantially true and the Defendant’s course of conduct was pursued for the purposes of preventing and or detecting crime and in the particular circumstances the pursuit of the course of conduct was reasonable. The Defendant relies on the defences to a claim in harassment provided by s1(3)(a) and 1(3)(c) Protection from Harassment Act 1997. 8. The Claimant occupied at all material times a position of power and influence in Pakistan both as an advisor to a prime minister elected on a pledge to stamp out corruption and ill doing and as a very rich businessman. The judiciary, the police, the government, the people, and those within the state responsible for considering where wealth had come from had a proper interest in considering these matters. The Defendant repeats the matters set out in paragraphs 14-32 of this defence so far as is necessary to provide particulars of his defences to the claim for harassment. 9. Paragraphs 11 and 12 of the amended particulars of claim are admitted save that it is denied that the Defendant knew or ought to have known that the course of conduct amounted to harassment for the reasons set out in paragraph 7 of this defence. 10. It is admitted as alleged in paragraph 13 of the amended particulars of claim that a follow up letter as sent it is denied that in the circumstances that the Defendant has not justified his conduct. 11. It is denied that the Defendant has harassed the Claimant or that the Claimant is entitled to the relief sought in respect of the matters pleaded within paragraphs 10 to 13 of the amended particulars of claim.”

“14. The Tweets and embedded videos contain a number of distinct defamatory meanings along the general theme identified above.”

“…the Claimant now relies for the purpose of this claim in libel on 40 Tweets, of which 21 contain defamatory text alone, 7 contain defamatory text and a defamatory video and 12 contain non-defamatory text but a defamatory video.”

“Given the extent of publication of the Tweets in question, and the nature and identity of the publishees, the Claimant will invite the inference that serious harm has been caused to his reputation by the publication of each such Tweet.”

“14. The following tweets and videos bear the meaning that the Claimant dishonestly pretends to have made his money as a businessman when in fact his wealth is derived from family money obtained from illegal activity (9, 63, 74, 100, 198). Those allegations and the meanings are substantially true. 15. The Claimant’s and Defendant’s family were of humble origins in Pakistan but by about 1980 had developed a lucrative, clandestine, business supplying very large numbers of former members of the Pakistani armed forces or police to the regime in Libya. The trade was facilitated by the payment of bribes to members of the security, immigration, and customs authorities in Pakistan to turn a blind eye to what was happening. Those being recruited by the family were told that they were to act as security contractors in Libya. They were in fact required to act as mercenaries fighting for the Libyan government and if they refused were kept in detention in very poor conditions. Securing their return to Pakistan was almost impossible. 16. The family thereafter branched out into the illegal supply of weapons to the Libyan regime. As that trade grew the supply of illegal arms was extended to other countries including Chad. 17. The sums of money made were very large and the money was put into extensive purchases of property in London and elsewhere and in Pakistan and into businesses so that income could be disguised as coming from legitimate sources. Very little tax was paid on any of these activities until there was an apparently reputable income source to justify paying tax. 18. These matters were openly discussed between the Defendant’s father and the Claimant’s father and other members of the family (all of whom were heavily involved in all of this behaviour and freely admitted it to be the case) in the hearing of the Defendant on many occasions in Pakistan and, when the family had grown sufficiently rich to buy properties in London and to trade out of the United Kingdom, in England. The Defendant’s father never resiled from any of this until his death in late 2019. The Defendant himself saw many of these activities in Pakistan as he was growing up. 19. A military tribunal in Pakistan in 1982 sentenced the Claimant’s father to a 14 year sentence of imprisonment for the arms trading, as well another uncle of both the Claimant and the Defendant. 20. The Claimant will never admit any of these matters but will suggest that his money is derived from his and his father’s investments in hotels and property rather than being ultimately derived from these improper activities.”

“21. The following tweets and videos bear the meaning that the Claimant is dishonest has committed a fraud and stolen land and valuables from the Defendant’s father and is a criminal (Tweets: 50, 53, 67, 75, 142, 228, Video:2). Those allegations and the meanings are substantially true. 22. The Defendant’s father had land and property in England and in Pakistan. Some of the land was leasehold land held through companies some was freehold. Transfers were affected out of the name of the Defendant’s father into companies controlled by the Claimant without the Defendant’s father consent both in Pakistan and England.”

“23. The following tweets and videos bear the meaning that the Claimant is dishonest and stole the Defendant’s assets (tweets: 98, 99). Those allegations and the meanings are substantially true. 24. The Defendant’s bank account in Pakistan was emptied of some approximately £200,000 worth of rupees in 2012 at the suit or behest of the Claimant. Title to land in Pakistan in the name of the Defendant father was transferred without his knowledge or consent.”

“27. The following tweets and videos bear the meaning that the Claimant has been responsible for an attack on the Defendant, for the Defendant’s parents being threatened by gangsters, and for being responsible for thugs threatening the Defendant (tweets: 119, 163, 191 videos: 10, 12). Those allegations and the meanings are substantially true. 28. The Defendant has been threatened following a television expose of the Claimant and his family in June 2018. The only reasonable inference supported by what the Defendant has been told by the Claimant’s sister and cousin is that the Claimant was responsible for this. Following the Defendant’s mother’s appearance on television in Pakistan in June 2018 exposing the behaviour of his family, she and her husband were threatened, and the Defendant’s car was vandalized in England. The only reasonable inference is that the Claimant was responsible for these acts being carried out by others on his behalf.”

“31. The remaining tweets and videos bear the meaning that the Claimant is corrupt. Those allegations and the meanings are substantially true. 32. The Claimant occupied a prominent position within the government of Pakistan which was ostensibly committed to rooting out corruption and imposing high standards of probity in the administration and society. He resisted any attempt to explain where his family money came from. He prevented government and judicial agencies from investigating the Defendant’s allegations about his personal ill doing. He used his position to help facilitate wrongdoing by him in relation to the Defendant and his father. All of this was incompatible with his duties to the government and prime minister of Pakistan and its people.”

“The Claimant is currently being investigated and the matter has been referred to The National Accountability Bureau and the Anti-Corruption Department Punjab for a thorough investigation regarding The Ring Road Mega scandal and the FIA has launched an inquiry in the ToshaKhana gift case which the Prime Minister and the Claimant are both alleged to be involved in.”

“A London-based arms dealer plotted to sell surface-to-air missiles and other arms to a Colombian Marxist rebel group in breach of British anti-terrorism laws, the Old Bailey was told yesterday. Syed Mohsin Bukhari allegedly agreed to supply 200 Russian-made SA 18s – also known as Iglas – as well as rocket-propelled grenades and AK7 rifles at a meeting at a London hotel in December 2002. But unknown to Mr Bukhari, the man with whom he was negotiating was an undercover FBI agent called David Sullivan and their conversations were recorded, Julian Bevan, for the crown, told the court. … Mr Bukhari, whose family owns companies in the UK and Pakistan, denies entering into an arrangement to supply weapons and military hardware contrary to the Terrorism Act.”

“A London-based international businessman accused of trying to sell millions of pounds’ worth of rocket launchers, missiles and rifles to terrorists walked free from the Old Bailey yesterday after the FBI refused to disclose key documents about its handling of the case. … Jurors were told Mr Bukhari and his family were experienced illegal arms dealers and he had supplied surface to air missiles and helicopters worth £50m to Pakistan. …” (Emphasis added.)

“The claimant dishonestly pretends to have made his money as a businessman when in fact his wealth is derived from family money obtained from illegal activity”; T100: “The claimant’s source of income is from human trafficking”

“The claimant is a criminal”; T125 and (part of the meaning of) V14: “The claimant is a thief”; T166/V13 and (part of meaning of) T103/T193/V5: “The claimant is guilty of fraud”; T53/T142/T228 and (part of meaning of) T50/V2: “The claimant has stolen land and valuables from the defendant’s father”; T67: “The claimant stole from the defendant’s father”; T98 and (part of meaning of) T99: “The claimant stole the defendant’s assets”; (part of meaning of) T50/V2: “The claimant has committed a fraud against … the defendant’s father”

“The claimant is dishonest”

“The claimant is corrupt”

“The claimant has been guilty of threatening the defendant”; T119/V12: “The claimant has used thugs to threaten the defendant”; T163: “After the defendant exposed his corruption, the claimant was responsible for an attack on the defendant and for the defendant’s aged parents being threatened by gangsters”; T191: “After the defendant exposed his corruption, the claimant staged an attack on the defendant’s home in London”

“The claimant manages illegal activities for Pakistan Prime Minister Imran Khan”