Safiullah Ahmadi v Guardian News & Media Limited [2025] EWHC 1191 (KB)

[2025] EWHC 1191 (KB)Case No KB-2024-003591
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 May 2025
Before
MR JUSTICE JOHNSON
Between
Safiullah AhmadiClaimantGuardian News & Media LimitedDefendant
Jay Gajjar (instructed by SAJ Legal) for ClaimantBen Silverstone (instructed by Guardian News & Media Limited) for DefendantHearing Hearing date: 14 May 2025
Approved JudgmentThis judgment was handed down by release to The National Archives on 16 May 2025
[1]The claimant seeks damages in defamation. He says the defendant published an article on its website that meant “[t]here are reasonable grounds to suspect that the Claimant is a homosexual man” and “[t]here are reasonable grounds to suspect that the Claimant was in a relationship with another man.”[2]The defendant applies to strike out the claim and for summary judgment on the grounds that the meanings alleged are not arguably defamatory of the claimant.[3]It also says that the claimant has sued the wrong defendant, that the claim should be struck out (or summary judgment entered) because there is an insufficient case that the words complained of refer to the claimant or that the publication caused, or was likely to cause, serious harm to his reputation, and because it is out of time, and because the continuation of the claim constitutes an abuse of the court’s process. Further, it says that the court lacks jurisdiction to entertain the claim because the particulars of claim were filed late. Alternatively, it seeks a trial of preliminary issues as to reference, meaning and defamatory tendency.

The factual background

[4]The claimant has filed a witness statement. The defendant relies on a witness statement of Theo Joshua Rees-Fallow, an in-house solicitor.

The claimant

[5]The claimant is a national of Afghanistan who is in his late 20s. He lives in Kabul. He says he is a heterosexual man, that his life and identity are deeply rooted in Afghan society, and that he lives in a society where homosexuality is punished by death or severe punishment. He says that the article carried a photograph of him, that the combination of the photograph and the headline suggested that he was gay, and that this has endangered his life, shattered his reputation and caused him irreversible harm.

The defendant

[6]The claim is brought against “The Guardian Media PLC”. No company is incorporated in that name. The claimant apparently intended to bring the claim against Guardian Media Group PLC, but the evidence suggests that company is not responsible for the website where the article was published (theguardian.com). The content on the website is published by Guardian News & Media Limited, and that company is the appropriate defendant. No substantive point is taken on this by Guardian News & Media Limited, and the parties agree that Guardian News & Media Limited may be substituted as the defendant.

The article

[7]The article was published at 7am on 18 October 2022. It was written by Deepa Parent, a freelance journalist. Its headline is “Gay Afghan student ‘murdered by Taliban’ as anti-LGBTQ+ violence rises.” The sub headline is “The death of Hamed Sabouri is the latest in a wave of attacks, with rights groups warning thousands are going into hiding or attempting to flee the country”.[8]The body of the article relates the abduction, torture and murder of a gay medical student called Hamed Sabouri by the Taliban in Kabul in August 2022. The article was accompanied by a photograph which appeared beneath the sub headline. The claimant (who has nothing to do with Mr Sabouri) alleges the photograph depicts him. For the purposes of this application, I assume he is right about that. A caption to the photograph says “Hamed Sabouri’s family and partner says he was detained at a checkpoint in Kabul in August and tortured for three days before being shot. Photograph: Handout”. Mr Rees-Fallow says that the defendant understood that the picture was of Hamed Sabouri and that it took steps to verify that.[9]The article states:
“The abduction, torture and murder of a gay medical student, who was stopped at a traffic checkpoint by Taliban gunmen, is the latest victim of a string of violence against Afghanistan’s LGBTQ+ community, human rights groups warn. Hamed Sabouri’s family and partner says he was detained at a checkpoint in Kabul in August and tortured for three days before being shot. Video of his execution was then sent to his family, who have now left Afghanistan for their own safety. “The Taliban murdered Hamed and sent the video to his family and me,” said Bahar, Sabouri’s partner. “Hamed’s family have fled and I have been in hiding We were like any other couple around the world in love but the Taliban treat us like criminals. They’ve killed the love of my life and I don't know how I’ll live without him. “I have been receiving threats from the Taliban again and I am now on the run. I have many friends from the LGBTQ+ community here in Afghanistan who have also been kidnapped and tortured. I was arrested by the Taliban in August 2021 and again in May and June this year and was raped, beaten and tortured with electric shocks.”
LGBTQ+ rights organisations in Afghanistan say the mounting violence led many in the LGBTQ + community to attempt to leave the country and forced thousands of others into hiding. “The biggest fear that every LGBTQ + person in Afghanistan has right now is that they will become the next Hamed Sabouri,” said Nemat Sadat, founder of LGBTQ + rights group Roshaniya. “This has been their predicament ever since the Taliban returned to power. The news of Hamed’s brutal death continues to put our community on edge but we won’t let Hamed’s life go in vain. We will continue to fight for the rights of LGBTQ+ Afghans to escape execution and live a long and happy life in a free country. In an e-mail Haseeb Sabouri, Hamed’s brother, confirmed that the family sold their two homes in Afghanistan and travelled to Turkey. “We fled from Afghanistan due to threats and murder of Hamed,” he said. “We fled because the Taliban came to our home every day to harass and threaten us.”[10]Mr Rees-Fallow says that in the hours following the publication of the article the defendant became aware of allegations that the man in the photograph was not Hamed Sabouri. The photograph was removed from the article at 6.24pm on 18 October 2022. A line was added to the article which reads “The main image on this article was replaced on 18 October 2022.” No further explanation was given.

Pre-action correspondence

[11]On 8 August 2023, the claimant’s solicitor wrote a pre-action letter in which he sought public clarification and an apology, general damages of £150,000, aggravated damages of £50,000 and exemplary damages of £50,000. The defendant says it did not receive this letter, but it did receive a chasing letter on 21 September 2023. It provided a detailed response on 4 October 2023. It did not hear further from the claimant’s solicitor until 24 January 2024 when the claimant’s solicitor emailed the particulars of claim (the claim form having been served by the court on 10 January 2024).

The issue of the claim form

[12]On 11 October 2023, the claimant’s solicitor emailed a claim form to a court email address. The email address to which the claim form was sent was an email address for the County Court at Central London, rather than the High Court. The claimant’s solicitor did not receive a response. She sent a follow-up email on 22 December 2023. On 2 January 2024, a member of court staff told the claimant’s solicitor that she could not find the claim form and asked for a copy. Following a discussion between the claimant’s solicitor and the member of staff, a further version of the claim form was sent. In the event, the County Court issued the claim form on 2 January 2024. The claim form that was issued was the document that had been lodged with the court in October 2023.

The pleaded claim

[13]The claimant does not rely on publication outside the jurisdiction. His pleaded case is that the article was published to a substantial number of people within the jurisdiction, and that the words and photograph were understood to refer to him because the photograph identifies him as the subject of the defamatory imputations of the words complained of, notwithstanding the use of a different name. His case on serious harm is that the article has caused and/or is likely to cause serious harm to his reputation. He relies on what he says is the seriously defamatory nature of the imputations and their wide republication and that he went into hiding and has been unable to study or undertake work due to his fear of the Taliban arising from the article.

Further correspondence

[14]The claimant’s solicitor sent the defendant a copy of the particulars of claim by post on 27 January 2024. Extensive further correspondence was exchanged between the parties in relation to the procedural complications that arose from the delay between the claim being sent to the court and it being issued, limitation, the claim being issued in the County Court rather than the High Court, and the mode of service of the particulars of claim. The proceedings have now been transferred to the High Court and no further point is taken about that. There was uncertainty as to whether the version of the claim form that was lodged with the court on 11 October 2023 was materially different from that issued by the court. That issue was resolved at the hearing by production of the documents. It is (now) agreed that the particulars of claim were not initially validly served: they were sent by email, but the defendant had not intimated a willingness to accept service by email. The claimant has lodged an application notice dated 27 December 2024 seeking to remedy the late service of the particulars of claim by way of an order for alternative service so as to treat the email service on 24 January 2024 as effective, alternatively for an extension of time to cover their late service, alternatively relief from sanctions, alternatively an order dispensing with service of the particulars of claim. That application has yet to be issued, possibly because of an issue as to dispensation from payment of the court fee. Legal framework Strike out / summary judgment

Legal framework

[15]The court may strike out a claim form and particulars of claim if they disclose no reasonable grounds for bringing the claim: CPR 3.4(2)(a). A case may be struck out under this power if the pleaded allegations, assuming them to be true, are insufficient to sustain a finding of legal liability: Practice Direction 3A, paragraph 1.2(3).[16]The court may give summary judgment against a claimant on a claim if(a) it considers that the claimant has no real prospect of succeeding on the claim, and(b) there is no other compelling reason why the claim should go to trial: CPR 24.3.

Defamatory at common law

[17]A statement about a claimant is defamatory at common law if it tends to have a substantially adverse effect on the way that right-thinking members of society generally would treat the claimant: Monroe v Hopkins [2018] EWHC 433 (QB) [2017] 4 WLR 68 per Warby J at [23]. The reference to “society generally” is important. It is not enough that the statement has an adverse effect on the attitudes of a certain section of society to the claimant. In Monroe, Warby J said at [50]:
“In a diverse society, there are many with views of which some people approve and some disapprove. The demands of pluralism in a democratic society make it important to allow room for differing views to be expressed, without fear of paying damages for defamation. Hence, a statement is not defamatory if it would only tend to have an adverse effect on the attitudes to the claimant of a certain section of society. The classic example, though far from this case, is a statement that someone is a “grass” who informs on criminals. That is not defamatory because informing on criminals is generally considered to be a good thing to do.”
[18]This reflects a distinction that is drawn in many earlier authorities. In Tolley v Fry [1930] 1 KB 467 Greer LJ said at 479:
“Words are not defamatory, however much they may damage a man in the eyes of a section of the community unless they also amount to disparagement of his reputation in the eyes of right thinking men generally. To write or say of a man something that would disparage him in the eyes of a particular section of the community but will not affect his reputation in the eyes of the average right thinking man is not actionable within the law of defamation.”
[19]In determining the question of whether a publication satisfies this test, it can be helpful to consider whether the meaning of a publication attributes to the claimant behaviour or views that are contrary to common, shared values of society, or that are illegal or, by the standards of society as a whole, immoral: Monroe at [51].

Reference

[20]A claim in libel can only succeed if the publication bears a defamatory meaning about the claimant: Dyson v Channel Four [2023] EWCA Civ 884 [2023] 4 WLR 67 per Warby LJ at [33]. Thus, the claimant must show that the article bore a meaning that was defamatory of him. In determining the article’s meaning, the court must identify the single natural and ordinary meaning of the publication, which is the meaning that the hypothetical reasonable reader would understand the publication to bear. The principles that underpin the determination of a publication’s meaning were explained by Nicklin J in Koutsogiannis v Random House Group [2019] EWHC 48 (QB) [2020] 4 WLR 25 at [10] – [12]. They include that the reasonable reader is taken to have read the whole publication. There are different ways in which a publication may refer to a claimant. It might directly identify the claimant by name. Or it might identify or refer to the claimant by reference to particular facts that are known to some individuals: Dyson at [34] and [35]. In the latter case, the hypothetical reasonable reader is taken to be acquainted with the claimant: Dyson at [37]. Ben Silverstone, for the defendant, was content to assume, for the purposes of his application, that this means that the hypothetical reader is to be taken as someone who was acquainted with the claimant and would recognise his image. Serious harm[21]A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant: Defamation Act 2013, section 1.[22]In order to demonstrate serious harm, it is not sufficient simply to rely on the words and their liability to be injurious to reputation, it is necessary to demonstrate the practical impact of the publication on the particular facts of the case: Lachaux v Independent PrintLtd [2019] UKSC 27 [2020] AC 612 per Lord Sumption at [12].[23]In Mahmudov v Sanzberro [2021] EWHC 3433 (QB) [2022] 4 WLR 29, Collins Rice J, at [56] - [66], concluded that section 1 of the 2013 Act requires the serious harm to be sustained within this jurisdiction.

Limitation

[24]A claim in libel must be brought not later than the expiration of one year from the date on which the cause of action accrued: Limitation Act 1980, section 4A(a).[25]Paragraph 6.1 of Practice Direction 7A of the Civil Procedure Rules states:
“Proceedings are started when the court issues a claim form at the request of the claimant… but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is “brought” for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.”

Claim form and particulars of claim

[26]Practice Direction 5B relates to filing documents with the court by email. It states that a party may email the court and may attach a specified document to an email: paragraph 2.1. A specified document means a document listed in the email guidance on a particular website: paragraph 1.3. At the relevant time, that website listed documents which could not be filed by email. It said “[a]ny document filed by email which is excluded by this list will [be] treated as having not been filed.” The list included a “request to issue a specified or unspecified claim as these claims are excluded from application by email.”[27]Particulars of claim may, in some circumstances, be served by means of electronic communication in accordance with Practice Direction 6A: CPR 6.20(1)(d). They may only be served by email if the defendant’s solicitor has indicated in writing to the claimant that he is willing to accept service by email and has specified the email address to which they must be sent: paragraph 4.1(1) of Practice Direction 6A.

Strike out/summary judgment: defamatory meaning

(b) Strike out/summary judgment: defamatory meaning Submissions

[28]Mr Silverstone says that the meanings alleged by the claimant do not involve any suggestion of hypocrisy or dishonesty (they do not, for example, suggest the claimant lied about his sexuality) or any form of impropriety. In the absence of any such suggestion, or some additional feature beyond a suggestion that the claimant might be gay and that he might have been in a gay relationship, the words are incapable of bearing a defamatory meaning. That is because being gay or being in a gay relationship is not “contrary to common, shared values in our society.” The fact that there are some individual members of society who may think less of someone who is gay, is irrelevant. Mr Silverstone helpfully identified a number of legislative references to same-sex couples, and references in the case law, which he submits are a powerful indicator of societal views.[29]Jay Gajjar, for the claimant, submits that the question of whether identifying an individual as gay is defamatory at common law has not been authoritatively determined by the courts in England and Wales. In assessing whether such an assertion would lower the claimant in the estimation of right-thinking members of society, it is important to take account of the fact that societal views are influenced by religion and culture. This, he says, should be the determinative factor in assessing the views of right-thinking members of a given society or community. In the context of this case, Mr Gajjar submits the relevant community is the Afghan / Iranian / Muslim community, having regard to the extent of immigration from Afghanistan to the United Kingdom, and taking particular account of the extent to which the views of society in Afghanistan are reflected in a legal framework. Mr Gajjar points out that the Afghanistan Penal Code 2018 criminalises homosexuality, and that this reflects the views of a significant section of the Afghan community living in England and Wales. Decision[30]I do not accept Mr Gajjar’s submission that it is appropriate to focus on the views of particular sections of society or on the Afghanistan Penal Code 2018. The authorities are clear that it is necessary to consider the views of right-thinking members of society generally, rather than any particular section of society, and that regard may be had to the domestic legal framework.[31]I do accept Mr Gajjar’s submission that there is no modern authority, in this jurisdiction, which decides whether the meanings on which the claimant relies in this case are defamatory at common law.[32]There was a time, many decades ago, when the meanings on which the claimant relies were regarded as defamatory. In 1942, Asquith J decided that describing a woman as a lesbian was defamatory: Kerr v Kennedy [1942] 1 KB 409. The claimant had relied on a leading dictionary which, at the time, defined “lesbianism” as meaning “unnatural sexual relations between women.” In the 1950s, the pianist and entertainer Władziu Valentino Liberace successfully sued the Daily Mirror for implying he was gay: Liberace v Daily Mirror Newspapers Ltd The Times, 18 June 1959, “Behind the Candelabra, in front of the Bench” 163 NLJ 7565 p30.[33]But societal views change. Brown on The Law of Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Second Edition, Volume 1) at paragraph 4:96 identifies cases that illustrate the way in which the views of society generally, in this context, has changed significantly in different jurisdictions. By 1997, they had changed to the point that a defendant in a Scottish case was able to argue that the word “lesbian” was not capable of bearing a defamatory meaning, albeit it was unnecessary for the judge “to consider at this stage as a matter of law whether a suggestion of lesbianism remains defamatory these days…”: Prophit v BBC [1997] SLT 745 per Judge Coutts QC at 748E.[34]Cases in Australia in the early 2000s make reference to changing societal views to sexual orientation. In Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 (SC) counsel referred the court to legislative changes that prohibited discrimination on grounds of sexual orientation. Bell J accepted that in the light of these legislative changes “it is no longer open to contend that the shared social and moral standard with which the ordinary reasonable member of the community is imbued include that of holding homosexual men… in lesser regard on account of that fact alone”. In a case in the High Court of Australia involving the same claimant, John Fairfax Publications Pty Ltd v Rivkin (2003) 201 Aust LR 77 (HC), Kirby J said at 109:
“In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation, but whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance… The day may come when, to accuse an adult of consenting homosexual activity is… generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for some people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.”
[35]The following year, a court in Massachusetts described it as “nothing short of outrageous” to suggest that people who are gay deserve social approbation and that just as it had once been defamatory to describe a white person as black, but was no longer so, the same applied to sexual orientation: Albright v Morton 321 F Supp 2d 130 (D Mass 2004) per District Judge Gertner at 139. In Stern v Cosby 645 F Supp 2d 258 (SDNY 2009), the United States District Court for the Southern District of New York held that an imputation of homosexuality was no longer actionable per se, because of a change in societal attitudes. In another case in New York, in 2012, Yonaty v Mincolla 97 AD 3d 141, 945 NYS 2d 774 (3d Dept 2012), Mercure J said:
“In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions… and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease.”
He said that earlier decisions were “based upon the flawed premise that it is shameful and disgraceful to be described as lesbian, gay and bisexual.”[36]The domestic legal framework in England and Wales shows a similar seismic societal shift. Thus:(1) Laws that criminalised “homosexual acts in private” ceased to have effect in 1967: Sexual Offences Act 1967, section 1.(2) It is, generally, unlawful for a public authority to discriminate against a person on the grounds of their sexuality, in respect of their rights under the European Convention on Human Rights (“the Convention”): Human Rights Act 1998, section 6 read with article 14 of the Convention. Sexual orientation comes within the scope of article 14: Smith and Grady v United Kingdom (2000) 29 EHRR 493.(3) Thus, a policy permitting discharge from the armed forces on the grounds of homosexuality was found to breach articles 8 and 14 of the Convention: Smith and Grady. The policy was then abolished.(4) A statutory prohibition on the promotion of homosexuality by local authorities (section 28 of the Local Government Act 1988) was repealed in 2003: Local Government Act 2003, section 127(2) and schedule 8.(5) Discrimination, harassment and victimisation on the ground of sexual orientation towards persons of the same sex is prohibited: Equality Act 2010, sections 12(1)(a), 13, 19, 26 and 27 read with Parts 3-7. The late introduction of protection against sexual orientation discrimination is charted by Karen Monaghan KC in Monaghan on Equality Law (second edition, 2013) at 2.81-2.90.(6) Those convicted of offences that were decriminalised by the 1967 Act can ask for the convictions to be disregarded: Protection of Freedoms Act 2012, section 92. Now, they can be pardoned: Policing and Crime Act 2017, sections 164 – 167.(7) Same-sex couples may adopt children: Adoption and Children Act 2002, sections 68(3) and 144(4)(aa) and (b).(8) Same-sex couples may form civil partnerships and may marry: Civil Partnership Act 2004, section 1; Marriage (Same Sex Couples) Act 2013, section 1(1).(9) Same-sex couples may be recognised as the legal parents of children conceived through the use of donated sperm, eggs or embryos: Human Fertilisation and Embryology Act 2008, sections 54 and 55.(10) Where the seriousness of a criminal offence is aggravated by hostility related to sexual orientation, the court must treat that as an aggravating factor and must state in open court that the offence is so aggravated: Sentencing Code, section 66.[37]Many decisions of the courts likewise show that same-sex couples are entitled to the same respect and dignity as opposite-sex couples: (1) In Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 the House of Lords held that the same-sex partner of a protected tenant under the Rent Act 1977 could be regarded as a member of that person’s family thereby having a right to succeed to the tenancy on their death. At 44B-D Lord Nicholls said:
“there can be no rational or other basis [to distinguish between same-sex and opposite-sex couples]. …it cannot make sense to say that, although a heterosexual partnership can give rise to membership of a family for Rent Act purposes, a homosexual partnership cannot. Where sexual partners are involved, whether heterosexual or homosexual, there is scope for the intimate mutual love and affection and long-term commitment that typically characterise the relationship of husband and wife. This love and affection and commitment can exist in same sex relationships as in heterosexual relationships. …the concept underlying membership of a family for present purposes is the sharing of lives together in a single family unit living in one house.” (2) In Ghaidan v Godin-Mendoza [2004] 2 AC 557, the House of Lords held that the word “spouse” in paragraph 2 of schedule 1 to the Rent Act 1977 should extend to a same-sex partner. At [55] Lord Millett said “…discriminatory treatment of homosexual couples… cannot be justified by any identifiable legitimate aim.”
At [127] Lord Rodger said “a long-term homosexual relationship is to be treated as being the same as a long-term heterosexual relationship…” (3) In HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 [2011] 1 AC 596 the Supreme Court considered (for the purposes of determining entitlement to protection under the Refugee Convention) whether a person could be expected to hide their sexual orientation in their country of origin. At [11] Lord Hope said “To pretend that [a person’s sexual orientation] does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are - of the right to do simple, everyday things with others of the same orientation such as living or spending time together or expressing affection for each other in public.” At [78] Lord Rodger (with whom Lord Walker, Lord Collins and Lord Dyson agreed) said “gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.” (4) In Preddy v Bull [2013] UKSC 73 [2013] 1 WLR 3741 Lady Hale said, at [53] that gay people “were long denied the possibility of fulfilling themselves through relationships with others. This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised.”[38]Recent decisions show that it is defamatory to suggest that a person has expressed homophobic views or engaged in homophobic behaviour: Alam v Guardian News and Media Limited [2023] EWHC 2847 (KB) per Griffiths J at [66] and [71], Paisley v Linehan [2024] EWHC 1976 (KB) per Aidan Eardley KC (sitting as a Deputy High Court Judge) at [102]. The law would risk incoherence if imputations of homophobia and homosexuality were both regarded as defamatory.[39]Plainly, some people are homophobic, just as some people are racist. But their views are not reflective of right thinking members of society generally. Now, no leading English dictionary defines words meaning same-sex attraction in a way that implies moral disapproval. In the light of the changes that have taken place since the 1960s, there is no longer any scope for argument that right thinking members of society generally would think less of someone because of their sexual orientation or because they are in a same-sex relationship. That conclusion is correctly foreshadowed by the editors of Gatley on Libel and Slander (13th edition, 2024) at paragraph 2-025:
“In the past, it has been found to be defamatory to say that a person was a homosexual, though this view is highly unlikely to prevail today… It seems highly unlikely that a judge would find that… a man was a practising homosexual, to be defamatory. Similarly, an allegation that someone was transgender or had undergone a sex change. In practice, however, cases concerned with information of this kind are liable to form the subject of claims for misuse of private information or data protection, or alternatively, presented as involving some further imputation such as hypocrisy or exploitation. Allegations of intolerant attitudes towards sexuality, such as homophobia, are now more likely to be found defamatory.”
[40]In Quilty v Windsor (1999) SLT 346 Lord Kingarth said, at 355F, that he was “inclined to agree… that merely to refer to a person as being homosexual would not now generally at least be regarded – if it ever was – as defamatory per se.” In Brown v Bower [2017] EWHC 2637 (QB) [2017] 4 WLR 195, counsel for both parties (Adrienne Page QC and Andrew Caldecott QC) agreed (and there was no suggested disagreement by the judge) that an allegation that the claimant was gay or that he had had sex with men was not defamatory: per Nicklin J at [50]. I agree. The contrary proposition has no real prospect of success. Nor is there any reason why this issue should proceed further.[41]It follows that there are no reasonable grounds for bringing the claim. Accordingly, I strike out the claim form, and the particulars of claim, and enter summary judgment in the defendant’s favour. Strike out/summary judgment: reference to claimant Submissions

Strike out/summary judgment: reference to claimant

[42]Mr Silverstone submits that the article is incapable of bearing a defamatory meaning that refers to the claimant. He says that the article is about Hamed Sabouri, not the claimant. Mr Sabouri is explicitly named. He is described as a gay Afghan medical student who was murdered, whereas the claimant is not gay, is not a medical student, and is alive. Anyone who recognised the claimant from the photograph would assume that the photograph was included by mistake, or that Mr Sabouri was very similar in appearance to the claimant.[43]Mr Gajjar submits that the photograph identified the claimant as the subject of the defamatory imputation of the publication (which was that the person photographed was gay) and establishes that readers would have known that the article referred to the claimant notwithstanding the use of a different name. Even if a reader realised that the claimant was not the person described in the article, the reader would conclude that the claimant was a member of the LGBTQ+ community. It is not certain that the claim is bound to fail, and it should not be struck out.

Decision

[44]Leaving aside the photograph, nothing in the article is capable of referring to the claimant. The article explicitly refers to someone else altogether. A reasonable reader, acquainted with the claimant, would not, after reading the full article, conclude that the article referred to the claimant or that it meant that the claimant was gay or that he had had a relationship with a man. Such a reasonable reader would appreciate that the claimant is not the man described in the article because, at least, that man has a different name, and that man is dead. Moreover, depending on the reader’s level of acquaintance with the claimant, it would be apparent that the claimant is not the man described in the article because(1) he is not a medical student (he is an aviation security officer),(2) he was not abducted or tortured,(3) he does not have a partner called Bahar,(4) his family have not left Afghanistan,(5) he does not have a brother called Haseeb, and(6) his family have not sold two homes in Afghanistan.[45]The only thing that is capable of referring to the claimant is the photograph. Given the detailed biographical references in the article (including a full name, and the reference to the man being dead) that photograph is not arguably a sufficient basis to lead a reasonable reader to conclude that the claimant is the person being referred to in the article. The reader, acquainted with the claimant (and his likeness), would no doubt realise that the image bears a striking resemblance to the claimant. However, the reader would be bound to conclude either that the image was of Mr Sabouri and that he happened to bear a striking resemblance to the claimant, or that the image was of the claimant but that it had been included in error. The alternative, that the reader would understand the picture and the article to convey the meaning that the claimant is gay, would involve the reader rejecting almost every detail of the article as erroneous, save for the reference to sexual orientation, and then to link that one detail – not anything else – with the image of the claimant. That is not a coherent or reasonable reading of the article. There is thus no prospect that a court, applying the principles identified in Koutsogiannis and Dyson, would conclude that the article bore a meaning that referred to the claimant.[46]Nor is there anything in the claimant’s case that the reasonable reader might conclude that the photograph depicted a member of the LGBTQ+ community other than Mr Sabouri. There is nothing in the article that could drive the reader to such a conclusion.[47]It follows, on this further ground, that the claim is not viable. Nor is there any compelling reason for this issue to be disposed of at trial. I therefore, on this separate basis, strike out the claim form, and the particulars of claim, and enter summary judgment in the defendant’s favour. Strike out/summary judgment:

Serious harm

[48]Given that the publication is not defamatory of the claimant at common law, it is incapable of sustaining a claim in defamation irrespective of the question of serious harm. Moreover, it naturally (although possibly not inexorably) follows that it was unlikely to cause serious harm to the claimant’s reputation in this jurisdiction (and the claimant only relies on publication in this jurisdiction). Further, although the claimant asserts that he has suffered, and was likely to be caused, serious harm, he has not given any particulars of actual harm sustained as a result of publication in this jurisdiction. On analysis, such particulars as he does give (going into hiding; fear of the Taliban) amount to subjective fears on his part as opposed to a demonstration of serious harm to his reputation by reason of publication in this jurisdiction. That is not sufficient to found a claim. Strike out/summary judgment: limitation Submissions

Strike out/summary judgment: limitation

[49]Mr Silverstone submits that the claim was issued out of time, because it was issued after the 1-year period prescribed by the Limitation Act 1980, and that a limitation defence would be bound to succeed. The claimant is not saved by paragraph 6.1 of the Practice Direction because recourse to that provision requires the claimant to show that he has done everything he reasonably could to bring the claim before the court: Chelfat v Hutchinson 3G UK Ltd [2022] EWCA Civ 455 [2022] 1 WLR 3613 per Coulson LJ at [28] – [29]. Here, there were numerous deficiencies in the approach that the claimant adopted. He had sent the claim form to the court by email, when this is not permitted by the procedure rules, he had sent it to the County Court’s email address rather than to the High Court, and he had failed to state the value of the claim as required by CPR 16.3(2).[50]Mr Gajjar submits that the claim form was filed, in time, on 11 October 2023. It was only at the court’s request that a further version was filed. For the purposes of limitation, the claim form was received by the court on 11 October 2023, which was within the limitation period.

Decision

[51]A claim that is brought after the expiry of the limitation period is not invalid. If, however, the defendant would be bound to raise a limitation defence, and if that defence would be bound to succeed, then it may be appropriate to consider entering summary judgment.[52]The critical issue, then, is whether the defendant’s limitation defence would be bound to succeed, or whether the claimant has a real prospect of showing that the claim was brought when a claim form was lodged with the court on 11 October 2023. If the claim form “as issued” was received by the court on that date, then (subject to any requirement to show that the claimant has acted reasonably and appropriately) it was brought on that date for the purposes of the Limitation Act 1980: paragraph 6.1 of the Practice Direction.[53]Until the actual documents were produced at a late stage in the hearing, the focus of the argument was whether the claim form “as issued” was the claim form that had been lodged in October. The production of the documents puts that issue beyond doubt – they are the same document. The defendant nevertheless maintains that the claimant did not act reasonably and appropriately and that he may not therefore rely on paragraph 6.1 of the Practice Direction.[54]I would not strike out the claim, or enter summary judgment, on this basis. Notwithstanding the deficiencies in the manner in which the case was put before the court, the claimant has a real prospect of showing that he did everything that was necessary and sufficient to cause the court to issue proceedings. This is at least arguably enough to enable the claimant to rely on paragraph 6.1 of the Practice Direction: Chelfat per Coulson LJ at [29].[55]I do not therefore consider that the defendant has shown, on limitation grounds, that there are no reasonable grounds for bringing the claim, or that the claimant has no real prospect of success on the claim, such that the claim form should be struck out or summary judgment entered in defendant’s favour. I therefore refuse this aspect of the defendant’s application.

Strike out: Abuse of process

[56]The defendant relies on the jurisdiction to strike out a claim that is recognised in Jameel v Dow Jones [2005] EWCA Civ 75 [2005] QB 946. Its arguments largely overlap with those in respect of whether the article is defamatory at common law and under the 2013 Act. Those arguments succeed, and the claim will be struck out. It is unnecessary, and it would be artificial, separately to consider the question of whether the case would, otherwise, be liable to be struck out as an abuse of process.

Lack of jurisdiction: service of particulars of claim

[57]It is common ground that the claim form was served on the defendant on 10 January 2024. The claimant was required to serve the Particulars of Claim by 24 January 2024: CPR 7.4(1)(b). They were sent by email on that date, but the claimant now accepts that did not constitute valid service. They were sent by post on 27 January 2024, with deemed service being on 29 January 2024, so 5 days out of time. The defendant says that it follows that the claim is at an end: Venulum v Space Architecture Ltd [2013] EWHC 1242 (TCC) [2013] 4 Costs LR 596. He further submits that it follows that the court lacks jurisdiction to entertain the claim.[58]I disagree. In Venulum the case was at end once a retrospective application to extend time was refused. There was no suggestion that the court lacked jurisdiction to entertain such an application. So too, here, it is open to the claimant to seek an extension of time for service of the particulars of claim or to dispense with the requirement for service of the particulars of claim or to seek an order for alternative service or relief from sanctions. There is an outstanding application notice to that effect. Such an application is now futile because the claim, anyway, falls to be dismissed. It would likewise be futile separately to strike out the particulars of claim for non-compliance with the civil procedure rules: CPR 3.4(2)(c). In any event, I refuse the separate application under CPR Part 11 to declare that the court has no jurisdiction.

Outcome

[59]There are no reasonable grounds for bringing the claim, and the claimant has no real prospect of success on the claim, because:(1) Suggesting that a person is gay or in a same-sex relationship is not defamatory.(2) It is not arguable that the publication, in its meanings on which the claimant relies, refers to the claimant.(3) The claimant does not have a real prospect of establishing that he has sustained serious harm, or that the publication was likely to cause him serious harm.[60]Accordingly, I order summary judgment in the defendant’s favour on the claim, I strike out the claim form and the particulars of claim, and I dismiss the action.

Cited in 1 later judgment