“Dr Hawrami, whilst serving as Minister of Natural Resources in the government of the KRG of the autonomous region of Iraqi Kurdistan, had: a) in November 2007, granted a highly lucrative contract to Gulf Keystone Petroleum (“GKP”) because of and/or knowing of a secret, corrupt and illegal agreement entered into between Todd Kozel (“Kozel”) of GKP and the company of Izzeddin Berwari (“Berwari”), a member of the governing Kurdistan Democratic Party (“KDP”) politburo and a high level and senior public official with connections to the Prime Minister of the KRG (“the kickback agreement”), whereby potentially huge revenues from the oil concession would be paid by GKP in kickbacks to Berwari’s company for securing the Shaikan Production Sharing Contract (“PSC”) for GKP; b) in 2010, been privy to a private agreement between GKP and the KRG to treat as void for illegality the kickback agreement just weeks before the UK Bribery Act was passed in April 2010, but, corruptly and in violation of a Kurdish oil law, that which Dr Hawrami had pushed through the Iraqi Kurdistan Parliament, allowed GKP to retain the contract, instead of cancelling the contract by reason of GKP’s corruption, as the oil law required him to do; and c) shortly thereafter, facilitated the secret funnelling of US$12m from GKP, a public company quoted on the London Stock Exchange, to an offshore company secretly connected to Kozel and the KRG, by introducing Kozel to a group of investors operating under the name of Etamic and to the idea of the transaction.”
“4. In the event, Excalibur accepted not being a party to any PSC to be entered into as a result of a successful bid. On6 November 2007 , after a series of proposals (as opposed to a formal bid), a PSC was entered into between the KRG on the one hand and (i) Gulf Keystone International Ltd (“Gulf International”), the third defendant, a Gulf subsidiary; (ii) Texas; and (iii) Kalegran Ltd (“Kalegran”) on the other in respect of the Shaikan block. Kalegran is a Cypriot company wholly owned by MOL Hungarian Oil & Gas Public Company Ltd (“MOL”), a public oil and gas company listed on the Budapest Stock Exchange, whose largest shareholder is the Hungarian State. 24. For the purpose of the IPO Gulf had to produce a “Competent Persons Report”, describing and assessing the company’s assets. The Competent Persons Report was carried out by a subsidiary of Exploration Consultants Limited (“ECL”), a company based in Henley-on-Thames, providing consultancy and operations services (seismic and well site geology) to exploration and production (“E& P”) companies. ECL’s Chairman was Dr Ashti Hawrami (“Dr Hawrami”), an Iraqi Kurd, who was in May 2006 to become the Minister of Natural Resources in the KRG. Gulf continued to use ECL’s services after the listing. Mr Kozel first met Dr Hawrami in 2002 or 2003. 116. Towards the end of 2004 Mr Wempen began to focus on Kurdistan and realized that it was necessary to have a local partner with strong local ties. On16 December 2004 Excalibur entered into a Memorandum of Understanding (“MOU”) with the Dabin Group (“Dabin”). Dabin was a Kurdish investment development company based in Erbil focused on working with foreign enterprises to develop investment projects in Kurdistan. Khaled (Azzat) Othman (Spindari) (hereafter “Azzat”) was its VP for business development. Izeddin Berwari was its President. He was a retired member of the KRG and a continuing senior member of the KDP. At the time Dabin’s focus was on construction and real estate development but it was interested in expanding into infrastructure and petroleum projects. Dabin viewed the IRF as something that would enable them to achieve this and Mr Wempen viewed Dabin as a partner who would negotiate approval of the IRF’s projects. 119. On13 March 2005 Mr Wempen received a letter from Nichervan Barzani, the Prime Minister of the KDP-controlled region of Kurdistan (and in 2006 of the unified KRG), with whom Dabin appear to have had connections, inviting him (on behalf of Excalibur) to Erbil to discuss investment opportunities. The KRG was interested in attracting foreign, particularly American, capital. 360. By April 2006 the prospect of any award of any Concession was on hold pending the formation of a new government. Mr Wempen was concerned that if there was a change in government and Dr Hawrami of the PUK (whom he had not met) took control of oil matters Excalibur might be out of any deal (see his email to Azzat of 26 April). In the event, in May 2006 Dr Hawrami became Minister for National Resources, one of the most important portfolios in the KRG. He knew Mr Clark, Mr Samarrai and Mr Kozel. Dr Hawrami is a qualified oil engineer with a PhD in oil reserve engineering. He had significant international upstream experience having worked in the oil industry in the UK since 1975. He is agreed, on all sides, to have detailed technical knowledge, to be a man of integrity and someone who would appreciate what was in the best interests of the KRG in considering bids and awarding contracts. In practice it would be he who would decide who would get the award of any contract. 619. On6 August 2007 the Kurdistan Regional Oil and Gas Law (“KROGL”) was passed by the Kurdistan National Assembly. This was a culmination of Dr Hawrami’s efforts to make the bidding process transparent and compliant with international norms. KROGL set out the framework by which petroleum operations would be regulated in the KRG and paved the way for the grant of PSCs. Article 24 laid down the criteria that had to be satisfied by anyone who wanted to participate in a PSC. It entitled the Minister to conclude a Petroleum Contract for exploration and development in respect of a specified area with “a Person – (defined as “a natural person, or other legal entity”) – or a group of Persons”. 739. Mr Kozel travelled to Erbil with MOL representatives. At a barbecue at Mr Berwari’s house on5 November 2007 Dr Hawrami suggested that as an alternative to payment to it of the signature bonuses in cash the KRG could subscribe for shares in Gulf. Mr Patrick produced a draft share subscription agreement, but, although there were some further discussions in late November and early December between Dr Hawrami and Mr Kozel, this idea went no further. Gulf paid the bonuses in cash. 740. The official signing ceremony for the Shaikan and Akri-Bijeel PSCs took place on6 November 2007 in Erbil. The Shaikan PSC was executed by Texas, Gulf International, Kalegran Limited and the KRG. Gulf was named as the Operator. Excalibur was not named as a party, and, although Mr Wempen had wanted to attend, he had no invitation to do so. (Nor, although expecting to go, had he been invited to Budapest). Mr Kozel could not influence whether Mr Wempen was invited to Erbil and was indifferent to whether or not he came. The signing “ceremony” took place in the Prime Minister’s office in a large compound with no spectators or press. The Prime Minister signed the PSC. 741. Immediately after Mr Kozel had attended the signing he went to see Dabin and signed the agreement for Dabin to be Gulf’s representative in Kurdistan. Dabin was to provide “consulting and government relations services”, advice as to political developments, arranging meetings and introductions to political and financial organisations and individuals in Kurdistan and Iraq and consulting service for transportation, accommodation and security. The agreement granted Dabin a 10% share in Gulf International’s net profits from the Shaikan PSC on account of the services which Dabin was to provide in relation to it – a potentially valuable (if distant) benefit. Since it involved Gulf in carrying the expenditure it amounted to something like a 17% equity interest. Gulf obviously thought Dabin would be valuable to it in providing political and strategic information, including introducing Gulf to local leaders. Dabin also had a construction company which could build drilling locations and a security company. 1285. On28 April 2009 , Gulf announced the spudding (i.e. commencement of drilling) of the first Shaikan exploration oil well. After extensive drilling and exploratory works, oil was discovered at Shaikan on3 August 2009 and was announced to the market on6 August 2009 . 1296. In Spring 2009, Mr Kozel asked Dr Hawrami if he had any interesting available blocks. Dr Hawrami brought the Sheikh Adi and Ber Bahr blocks to Gulf’s attention. These had been relinquished by DNO. Dr Hawrami introduced Gulf to ETAMIC, a company that had been formed by a group of Middle Eastern investors, who were contemplating a water plant project in Dohuk in Kurdistan and who wanted to obtain an interest in an oil and gas licence. Dr Hawrami said that they had no oil and gas experience. He introduced them on the basis that he would not approve ETAMIC going on the PSC, but, if a structure was worked out to involve them, Gulf International would be entitled to obtain an interest in these two blocks. Mr Kozel went to Mr Marcus Hugelshofer, who (a) had a shareholding in the Near East Commercial Bank (“NECB”) to which Dr Hawrami had referred ETAMIC; and (b) was Mr Kozel and Gulf’s lawyer, to put together such a structure. 1297. Gulf agreed to enter into an arrangement with ETAMIC in which ETAMIC was to become a 50% shareholder in Gulf International in return for the latter acquiring interests in the Sheikh Adi and Ber Bahr Blocks, which had been earmarked for ETAMIC. On16 June 2009 the Gulf Board discussed and approved the transaction. One benefit of the deal was that it reduced the risk in Kurdistan. If Shaikan dried up, the other two blocks, which were two and a half times the size of the two existing blocks might be more productive (in the event oil was discovered in Sheikh Adi). 1298. The agreement, which was never recorded in writing, was that, in consideration of ETAMIC becoming a 50% shareholder in Gulf International and paying 50% of all costs payable by Gulf International, it would procure the award of two new PSCs in the Sheikh Adi and Ber Bahr blocks in which Gulf International would hold interests of 80% and 40% respectively. In effect it was a swap in which Gulf International received an interest in two blocks in return for a 50% interest in itself and, therefore, indirectly Shaikan. Mr Gerstenlauer reviewed the transaction for the acceptability of the assets that Gulf was receiving. 1300. In the event ETAMIC was unable to pay its cash calls for expenses in relation to these Blocks. On20 January 2010 , Gulf wrote to ETAMIC holding it in default of its obligations. Gulf then entered into discussions with the KRG in order to reorganise its holdings in the PSCs. As set out in its press release dated10 March 2010 , as part of this reorganisation, the 50% shareholding in Gulf International held by ETAMIC reverted to Gulf. Gulf International paid to the KRG the sums owed by ETAMIC, and the KRG become entitled to Additional Infrastructure Support Payments, amounting to 40% of Gulf’s entitlement to Profit Petroleum in respect of all four PSCs. This was a very substantial reduction in Gulf’s entitlement reducing its share in any Shaikan field profits to between 9% and 18% – and an illustration of the risk involved in this field. Gulf also made a$ 12 million termination payment to ETAMIC in full and final settlement of any claims, a reasonable price for the certainty of unencumbered rights to the two new blocks. 1312. When the Shaikan PSC was signed, Dr Hawrami was not aware that Gulf was about to enter into its agreement with Dabin. Shortly afterwards Dr Hawrami indicated to Mr Kozel that Dabin could not participate in a PSC because locals and local companies should not benefit from a PSC. On29 January 2010 Gulf asked the KRG whether the profit-sharing agreement with Dabin was legally valid in the light of KROGL. Their letter indicated that they had concluded that it was not. On27 February 2010 the KRG replied that it was not its policy that a PSC contractor should involve any local service provider or individual with a direct or indirect interest in the PSC. In addition it said that KROGL prohibited participation of any individual or organisation linked to government officials, political parties or influential individuals. That applied to Dabin in the light of Mr Berwari’s links to the KDP. 1313. On2 March 2010 Gulf informed Dabin that, following a review of the agreement, it was not in compliance with KROGL and that Gulf International was therefore obliged to serve a notice of termination. Dabin indicated that it would respond, but did not do so. The agreement has for practical purposes been treated as void, and Dabin has not challenged that. Dr Hawrami took the view that the 10% net profit interest payable to Dabin should be paid to the KRG and that is what Gulf ended up having to do. 1339. I accept the authenticity of these two emails; and am satisfied that the first (i) was not solicited by Mr Kozel; (ii) set out the message which Dr Hawrami wished to convey to the Foreign Ministry; and (iii) reflected his true attitude both in 2012 and 2006-7. Mr Wempen, and many others, have the highest regard for Dr Hawrami and he is accepted, on all sides, to be a man of integrity. It is highly unlikely that he (or Mr Howard) would be parties to some underhand Kozel stratagem 106. It is apparent from what he wrote that in 2006 and 2007 he regarded Excalibur as lacking the requisite technical and financial qualities to participate in the PSC – a matter to which he would naturally have addressed his mind at the time, having regard to his obligations as Oil Minister and the qualification provisions of KROGL. 1476. Accordingly I shall give judgment for the defendants.”
“24.3 The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“The following principles applicable to applications for summary judgment were formulated by Lewison J in Easyair Ltd v Opal Telecom Ltd[2009] EWHC 339 (Ch) at [15] and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd[2009] EWCA Civ 1098 ; [2010] Lloyd’s Rep. I.R. 301 at [24]: 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] F.S.R. 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 . In respect of points of law and of construction the notion of “shortness” does not appear to relate to the length of the document to be construed or the length of the material passage in that document but may relate to the length of the hearing that will be required and the complexity of the matrix of fact the court will have to consider: see the comments of Chief Master Marsh in Commerz Real Investmentgesellschaft MBH v TFS Stores Ltd[2021] EWHC 863 (Ch) . He further commented that there was an overlap between the idea of a point of construction not being “short” and the second limb ofCPR r.24.2 : there may be some points that the court is capable of grappling with that, nevertheless, due to the context in which they arise or other factors, are best left to be dealt with at a trial.”
“Determination of meaning 6.1. At any time in a defamation claim the court may determine— (1). the meaning of the statement complained of; (2). whether the statement is defamatory of the claimant at common law; (3). whether the statement is a statement of fact or opinion. 6.2 An application for a determination of meaning may be made at any time after the service of particulars of claim. Such an application should be made promptly. 6.3 Where an application is made for a determination of meaning, the application notice must state that it is an application for a determination of meaning made in accordance with this practice direction. 6.4. An application made under this paragraph must be made to a Judge.”
“Proposition (ii): One of the requirements of a fair and accurate report is that the quality of fairness must not be lost by intermingling extraneous material with the material for which privilege is claimed 26. There are a number of authorities on what constitutes a fair and accurate report. It need not be a verbatim report. It can be selective and concentrate on one particular aspect as long as it reports fairly and accurately the impression that the reporter would have received as a reasonable spectator in the proceedings: see generally Cook v Alexander[1974] QB 279 , and Tsikata v Newspaper Publishing Ltd[1997] 1 All ER 655 . 27. However, these appeals are principally concerned with the quality of fairness. Fairness in section 15 has been held to mean fairness in terms of presentation rather than fairness between the speaker and the subject of the statement (see per Lord Denning MR in Cook v Alexander at 289). A report does not cease to be fair because there are some slight inaccuracies or omissions (Andrews v Chapman (1853) 3 C & K 286 at 290). It follows that if there is a substantial or material misstatement of fact that is prejudicial to the claimant’s reputation, the report will not be privileged. If the report refers to an accusation made on a privileged occasion which is in fact untrue, the defence of fair comment may be available if it is in terms which would be fair if the accusation were well-founded and provided that the comment is made in good faith and without malice (Mangena v Wright[1909] 2 KB 958 , 977). 28. Fairness can also be lost by the presence of extraneous material. This proposition is supported by a memorable passage in the speech of Lord Denning in Dingle (see [33] below). In that case, the plaintiff complained of an article written in the Daily Mail which included the reporting of a report of a Parliamentary select committee. The reporting of the select committee’s report was privileged under theParliamentary Papers Act 1840 . At trial the judge held that the part of the article which reported on the proceedings in Parliament was privileged. The remainder of the article was found to be defamatory and the judge then set about fixing the damages for the libel. The case then went to this court and to the House of Lords (Lord Radcliffe, Lord Morton of Henryton, Lord Cohen, Lord Denning and Lord Morris of Borth-y-Guest). The issues before the House related to the assessment of damages. The House, dismissing an appeal from this court, held that the judge had wrongly taken into account evidence that the plaintiff’s reputation had already been damaged by what had been said in Parliament or by what had been said on other occasions, and that the Daily Mail had subsequently published an article which vindicated the plaintiff’s reputation. 29. Only Lord Radcliffe, Lord Denning and Lord Morris focussed on the issues arising from the inclusion within a single article of privileged and non-privileged material. Lord Radcliffe clearly considered that the privilege attaching to the reporting of a select committee report was not lost simply because the article included other matters. He held at page 389: “We have to start our consideration of this case therefore by recognising that so far as the Daily Mail or any other newspaper confined itself to reproducing extracts from the report and acted in good faith and without malice the respondent would have no cause of action in defamation against it." Then again at page 392 he importantly held that the meaning of the article was to be found by disregarding the privileged part of the article: “If one reads the article through without including the extract from the select committee report, which is protected, the effect of what is imputed to the respondent does not seem to amount to such deliberate misstatements or deliberate concealments as constitute an offence under section 12 of the Prevention of Frauds Act.” 30. Lord Radcliffe therefore approached the judge’s assessment of damages on the basis that the judge has assessed them for a libel imputing sharp practice but not a criminal offence. 31. Significantly, when Lord Radcliffe dealt with the matters which the judge had to leave out of account in assessing damages, he held at page 394: “… and the judge had to eliminate that part of the article that consisted of extracts from the select committee's report, since under the Act of 1840 such extracts could not in law be treated as a libel.” 32. Similarly, at page 414, Lord Morris accepted that the judge had to leave the privileged parts of the article out of account when he was fixing damages: “The judge had approached the case with two broad questions in mind which he framed as follows: (1) To what extent was the plaintiff wrongfully defamed by the defendants? And (2) How much damage to his reputation was caused by this? In regard to the first of these questions I think that the approach of the judge was entirely correct: he excluded from consideration those parts of the article which were privileged and he excluded those parts which were true. He held that the extracts contained in the article which came from the select committee’s report were published without malice. He held that some parts of the article though only of slight materiality were true. He proceeded therefore to isolate those matters from the “indefensible part of the libel” and then posed the second question in the words: “How much damage is attributable to so much of the libel as is neither privileged under the Act nor true?” 33. Lord Denning, however, went further and considered the extent of the privilege provided by the 1840 Act. At page 411, he held: “But here comes the question: Suppose that the reports in other newspapers were privileged, as they were in this case, cannot they be referred to in order to mitigate damage? I think the answer must be “No.”
“Excessive commentary or misleading headlines which amount to commentary run the risk of depriving the text of the quality of fairness essential to attract the privilege” 36. Thus, I conclude that reporting privilege will be lost if the quality of fairness required for reporting privilege is lost by intermingling extraneous material with the material for which privilege is claimed.”
“Proposition (v): In the case of an article consisting in part only of passages entitled to reporting privilege, the meaning of the non-privileged passages is to be ascertained on the basis that (1) the privileged passages merely provide the context in which the statements in the non-privileged passages were made, and (2) the repetition rule has no application to the privileged passages 52. What the judge did, having rejected the submissions made on the "pre-preliminary" issues, was to consider the meaning of the non-privileged passages on the basis of the whole of the article and he did this through a combination of the single meaning rule and the repetition rule. The real complaint is about the repetition rule. If that is not applicable to the privileged words, those words can only be relevant as context. 53. As Mr Parkes submits in his skeleton argument, the repetition rule is a very well established common law principle in England and Wales, and profoundly affects the meaning to be put on words and the way in which words can be justified. It "reflects a fundamental canon of legal policy in the law of defamation, dating back nearly 170 years, that words must be interpreted, and the implications they contain justified, by reference to the underlying allegations of fact and not merely by reliance upon some second-hand report or assertion of them." (Shah v Standard Chartered Bank[1999] QB 241 at 263)…”
“59. To apply the repetition rule would also in my judgment be inconsistent with section 15 of the DA 1996. As I have already noted, Simon Brown LJ observed in Stern v Piper at page 137 (and again in Al-Fagih at [35]) that the law of statutory privilege presupposes the existence of the repetition rule. Put another way, the clear intention of section 15 is at minimum to disapply the repetition rule as it would otherwise apply to the fair and accurate report. What Mr Curistan contends is that the single meaning rule applies to the article as a whole, and that the meaning of the non-privileged words is to be found by taking the cumulative effect of the privileged words and the non-privileged words together and applying the repetition rule. There is no “antidote” in the article to the bane of Mr Robinson’s allegations. The existence of a defence of privilege would be relevant only to the assessment of damages and not meaning. As I see it, this is merely an indirect way of applying the repetition rule to the privileged words. The non-privileged words have on this analysis to be interpreted (from the standpoint of the hypothetical reasonable reader) on the footing that the defendant is himself making the allegations which in the report are attributed to someone else. In my judgment, this infringes the privilege given to the fair and accurate report since it imposes a sanction on its author for what is said in that report. Moreover, it is bound to have a chilling effect on the addition of factual material to a report, as is commonly expected from the responsible press today, and may have the same effect on the addition of comment, even though the defence of fair comment is not affected. 60. Moreover, if the repetition rule were to apply to the ascertainment of meaning of the non-privileged statements appearing in the same article so as to impose a higher hurdle for the maker of those statements to have to overcome if he wishes to justify the truth of those statements, the value of the privilege would be undermined and indeed would be revealed as incomplete. That would in my judgment be contrary to the purpose of section 15. In all the circumstances, I conclude that the submission that the repetition rule should apply to the accusations made in the report is contrary to section 15. It is therefore no answer that the defendant may be able to rely on some other defence, such as Reynolds privilege. My conclusion on this point is also an answer to the submission of Mr Parkes that to disapply the repetition rule would elevate political speech into a special category by requiring an adjustment of the rules of meaning when applied to a report of a statement in Parliament when this would be contrary to Reynolds. As I see it, the disapplication is a consequence of the statutory protection given to reporting privilege.”
“69. Once the repetition rule is disapplied, there is no reason why a fair and accurate report entitled to qualified privilege under section 15 should be read as anything more than a statement that the allegations mentioned in the report were made. The report would not of course be entitled to qualified privilege if the writer had adopted the allegations made in the privileged passages or so intermingled them with extraneous material that the privilege was lost. 70. If qualified privilege applies, the only remaining question is the meaning of the non-privileged passages in the context of the accompanying report. To some extent I have already dealt with this above.”
“87. Finally I add these short comments about embellishment and adoption. It is plain that there will be no qualified privilege in an account of Parliamentary speech if the publisher has so embellished the material that it cannot be said to be a fair and accurate report. So much, I think, is shown by this passage from Lord Denning’s speech in Dingle at 411: “But if it [sc. the publisher] adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has ‘put the meat on the bones’ and must answer for the whole joint.” 88. Some care is I think needed in considering the concept of adoption, discussed by Arden LJ at paragraphs 37 – 40. In a sense the publisher who embellishes Parliamentary speech may be said to have adopted it: by “putting the meat on the bones” he has made the allegation his own. But I think it is misleading to characterise such a case as one of adoption. Rather than adopting what was said, the publisher has produced a critically different text. Since what he has produced cannot be said to be a fair and accurate report of Parliamentary speech, the law gives him no shield of qualified privilege. That is the whole analysis of the case; no recourse to any such idea as adoption is required. 89. In Buchanan[2005] 1 AC 115 a Member of Parliament effectively re-stated outside Parliament what he had earlier stated inside it. The first statement was absolutely privileged. It could not sensibly be suggested (and was not) that the later utterance was somehow a fair and accurate report of the earlier. Thus the species of qualified privilege which arises in this case did not arise there. Again, no recourse to adoption is needed for the case’s analysis. 90. In a hybrid case such as this, where there is, first, a fair and accurate report of Parliamentary speech and, secondly, further distinct material, the law is clear: other things being equal the first is subject to qualified privilege and the second is not. 91. In all these circumstances I entertain some doubt as to whether adoption is a useful conceptual tool in this area of the law.”
“65. Mr Warby submits that in the 1996 Act Parliament specified categories of information (in addition to those previously specified in the 1952 Act) which it was in the public interest that the public should be told about. Parliament introduced new categories of statutory qualified privilege, but these were to be available in “certain closely defined circumstances”, as explained by Lord Bingham in McCartan Turkington Breen v Times Newspapers Ltd[2001] 2 AC 277 (where the references are to the Northern Ireland statute) as follows at p290: “1. In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction. 2. Sometimes the press takes the initiative in exploring factual situations and reporting the outcome of such investigations. In doing so it may, if certain conditions are met, enjoy qualified privilege at common law, as recently explained by this House in Reynolds v. Times Newspapers Limited http://www.bailii.org/uk/cases/UKHL/1999/45.html[2001] 2 AC 127 . In the present case the role of the press is different. It is that of reporter. The press then acts, in a very literal sense, as a medium of communication. Since 1881 a series of statutory provisions cited above has granted newspapers* qualified privilege in relation to certain reports in certain closely defined circumstances [emphasis added]… The privilege is lost if malice is proved. By section 7(2) the enjoyment of qualified privilege is conditional on the grant of a right of reply to the complainant, if the case falls within Part II of the Schedule. By section 7(3) there is no privilege if the publication is of a matter the publication of which is prohibited by law, or if the matter published is not of public concern or if its publication is not for the public benefit. By section 7(4) any privilege enjoyed at common law is preserved. The reports of proceedings privileged under Part I of the Schedule have to be fair and accurate and have (subject to one very limited exception) to be of proceedings in public. … The grant of privilege inevitably deprives a complainant of a remedy he would otherwise enjoy if a defamatory statement is made concerning him, but section 7 and paragraph 9 give a very considerable measure of protection to those liable to be injured. 3. The effect of the legislation in 1955 was to grant qualified privilege to newspaper* reports of public meetings, subject to the stringent conditions just noted. This grant (as in 1881, 1888 and 1952) must have been intended to enable citizens to participate in the public life of their society, even if only indirectly, in an informed and intelligent way. Since very few people could personally witness any proceedings or attend any meeting in question, it was intended to put others, by reading newspaper* reports, in a comparable position. The privilege was not extended to newspaper* reports of the proceedings of private bodies and private meetings, because those are proceedings which by definition the public do not witness and to which the public do not have access: the object was not to put the newspaper* reader in a better position than one who was able to attend the proceedings or meeting in person”. 66. I have put an asterisk against the word newspaper in that extract, and omitted a passage relating specifically to newspapers, because in the 1996 Act Parliament omitted any references to newspapers, thereby according to all persons engaged in the activity of journalism the privilege which had previously been available only to the proprietors of newspapers. So the passage should now be read as if the word newspaper was omitted wherever it occurs. 67. Mr Warby notes that the defendant bears the burden of proving the elements of the defences of statutory qualified privilege. So no further restrictions should be imported by the court into the defence, and there is no basis for submitting that the 1996 Act in this respect fails to strike a fair balance between the Art 10 rights of defendants and the Art 8 or reputation right of a complainant. 68. In my judgment Mr Warby is clearly correct on this point. What is fair and accurate is to be judged by comparing the words complained of with the document from which the words complained of are said by the defendant to be an extract. Where the complaint is of unfairness arising out of the omission to publish information extraneous to that document, such as another document or comments of the complainant, then that issue is to be decided under s.15(3) (public concern and public benefit) or s.15(1) (malice). 69. Mr Warby (citing Gatley on Libel and Slander 11th ed paras 13.37 to 13.41 and 16.4) submits that a publisher is entitled to be selective, but must be fair about the claimant, and that if the whole publication is substantially accurate the fact that there are a few slight inaccuracies or omissions is immaterial. He submits that a publication which does not purport to be by a lawyer is not be judged by the same strict standards of accuracy as would a publication by a lawyer. Such differences as there are between the account in the Particulars of Claim and the words complained of are not material inaccuracies and are not unfair. 70. Further, Mr Warby submits that it is clear that the words complained of are not investigatory journalism, but reporting. 71. I accept that there are the differences between the Particulars of Claim and the words complained of identified by Mr Bennett. But in my judgment, these differences alone would not be of such materiality as to lead to the conclusion that the words complained of are not a fair and accurate extract from the Particulars of Claim. The Particulars of Claim in the Penthouse action refer to Doyle Investments Ltd as a non-existent company (para 16(1)), and they allege that it was Mr Qadir and his associates that gained control of the company that owned the nightclub. The precise order of the transfer of the shares and the other incidents is not material. (In fairness to Mr Qadir I record that it is his case that Doyle Investments Ltd is an offshore investment vehicle for a Mr Aslam based in Nevis). 72. But in my judgment Mr Qadir is on stronger ground with his point (made in the original Reply) that the words complained purport to be not just the publication of an extract from the “writ” (as the Particulars of Claim are referred to) but to be the result of a journalistic investigation as well. 73. In my judgment the first Article is in fact the product of a journalistic investigation, one part of which is a report of what is in the Particulars of Claim: it is not just a report of what was on the court file. This is clear from the extraneous information that is included, relating to Mr Qadir, and to the results of Mr Watkins’ attempts to obtain comments from the three claimants and the two defendants. 74. I feel no hesitation in finding that the first Article is the product of an investigation, because that is how Mr Watkins treated it himself at the time. He did investigate. If the first Article had been no more than the publication of an extract from the court file, there would have been no requirement for ANL to approach the parties to the Penthouse litigation to verify whether what counsel, a solicitor or a witness had said was accurate. Mr Warby makes this point part of his submissions in another context, citing Burnett & Hallamshire Fuel Ltd v Sheffield Telegraph & Star Ltd[1960] 1 WLR 502 , at p506. If a journalist reporting on a trial chooses to approach the lawyers, parties or witnesses, then he is carrying out his own investigation. 75. However, the parts of the first Article that are the product of the investigation do not themselves add to the sting of the libel, save for the final sentence “All other parties declined to comment”
“ 62. Fairness and accuracy. The applicable principles were not the subject of any argument in writing on the part of Mr Harding, or any exploration before me at this hearing. Mr Alsaifi did submit extensive written argument on the applicable principles. They are well-established and familiar, and I have also been reminded of them in the course of argument in a second case brought by Mr Alsaifi in which I heard argument a few days after the hearing in this case, and in which I have been preparing a reserved judgment at the same time as the present one. 63. The principles are clearly stated in the following authorities, all of which I have considered in the course of preparing this judgment: Cook v Alexander[1974] 2 QB 279 (CA), Tsikata v Newspaper Publishing[1997] 1 All ER 655 (CA), Ismael v News Group Newspapers[2012] EWHC 3056 (QB) and Qadir (above). Key points for present purposes are that fairness and accuracy are matters of substance not form. A report does not need to be verbatim. It may to an extent be impressionistic. Fairness is to be tested by reference to the impact on the claimant’s reputation. Minor inaccuracies will not deprive a defendant of the privilege. 64. I have also had regard to Mr Alsaifi’s skeleton argument on this issue, which cites the following well-known authorities: Turner v Sullivan(1862) 6 LT 130 , Kimber v Press Association[1893] 1 QB 65 at 71 (Lord Esher MR), Adam v Ward[1917] AC 309 , Grech v Odhams Press Ltd[1958] 2 QB 275 at 285, Kingshott v Associated Kent Newspapers Ltd[1991] 1 QB 88 at 98, Maccaba v Lichtenstein[2003] EWHC 1325 (QB) at [12], Curistan v Times Newspapers Ltd[2008] EWCA Civ 432 ,[2009] QB 231 and Henry v BBC[2005] EWHC 2787 (QB) . The main points made by Mr Alsaifi by reference to this body of authority are that the article is not a report but a commentary; that it misrepresents the effect of the proceedings by omission; and that it includes extraneous material which is not privileged and is intermingled with reporting, so as to defeat the privilege.”
“81. If I am wrong in these conclusions, and in my conclusions about meaning, then the most that could be said, in my judgment, is that the words in the “Mind the gap” section contain, in context, an implicit comment to the following or similar effect: that Mr Alsaifi was guilty of professional misconduct involving a child which should have attracted investigation and sanction; and that the outcome of his case shows that there is a concerning gap in the legal regime for protecting children in educational settings. “82. This is plainly comment. It is manifestly comment based on the factual scenario presented in the Appeal Judgment. Any reader would understand that. Such imputations would inevitably be held defensible as honest opinion pursuant tos 3 of the Defamation Act 2013 …”
“6 The complicating factor is the Court of Appeal’s decision in Curistan -v- Times Newspapers Ltd[2009] QB 231 . That decision, which predated theDefamation Act 2013 , is authority for the position that the court must resolve the extent to which the publication complained of is protected by privilege before the court can determine meaning. In other words, when performing the test of deciding what is the meaning, the natural ordinary meaning of an article, the court must first remove from its consideration such parts of that article as the court finds is protected by qualified privilege. 7 There has been some criticism of that decision. The authors of Gatley suggest, at para.30.8: “The full consequences of this iconoclastic approach to the determination of meaning remain to be seen.” 8 One of the consequences of the Curistan principle in relation to this claim is that it stands as a fairly significant impediment to the court determining the natural and ordinary meaning of the article. To do so, the court would have to resolve the question of qualified privilege. The determination of whether the pleas of qualified privilege protect parts of the publications complained of, in turn, would require the court to determine also the plea of malice that the Claimants have advanced. There are other implications of Curistan which have emerged only since theDefamation Act 2013 . As the objective meaning of a publication is likely to be an integral part of the assessment of serious harm unders.1 Defamation Act 2013 , that means that any dispute as to serious harm to reputation could also only be carried out after the issues regarding qualified privilege have been resolved. 9 There is no doubt that the impediment that Curistan represents has significant implications for this case and its case management. The court now has the benefit of full statements of case filed by the parties. It is no exaggeration to say that the parameters of this litigation are very substantial. Indeed, this is the most significant piece of defamation litigation that I have seen in a very long time.”
“40 One significant downside of having the two trials that I have identified is that there is a very real risk of an appeal that will arise following the determination of the issues at Trial 1. I say that because there has got to be at least a prospect that the Curistan decision, when applied to these proceedings, will mean that here could be two rival meanings: one natural and [ordinary?] meaning, arrived at by excluding what the Curistan privilege material, and one in which the Curistan material is taken into account. Curistan is a decision of the Court of Appeal which a first instance Judge would be bound to follow. I have already referred to the fact that Curistan as a decision has received some criticism. There are respectable arguments that the decision profoundly conflicts with a fundamental principle of defamation law; the single natural and ordinary meaning of a publication. That issue alone could lead potentially to an appeal, and there would be several other issues that the parties could well seek to appeal after Trial 1.”
“37. Hawrami knew the oil law well, as the official responsible for pushing it through Iraqi Kurdistan’s parliament in 2007. Despite the conclusion that the Representation Agreement was illegal, the Kurdistani government did not cancel Gulf Keystone’s oil production deal as required by law.”
“38. Instead, in August 2010, Gulf Keystone and the government signed an amended contract that included a new anti-bribery clause, which explicitly stated that no public or party official was being paid as part of the agreement.”
“47. The London judge did not address the corruption issue, which was not central to the claim made by Wempen, the former U.S. special forces soldier. 48. The corruption evidence was not discussed officially again until March 2014, when a whistleblower in Iraqi Kurdistan contacted the U.K.’s Serious Fraud Office (SFO) about Gulf Keystone. OCCRP has seen a copy of the complaints filed with the U.S. Securities and Exchange Commission, the Department of Justice, and the FBI, as well as correspondence that followed. 49. The whistleblower wrote that the Representation Agreement appeared to be a “written corruption agreement.”
“The questions raised concern the period when Mr Todd Kozel was CEO of Gulf Keystone Petroleum Ltd, with a particular focus on events between 2007 and 2010. This predates the appointment of any of the current board or management team.”