‘failed-tax-avoidance-from Arka wealth and Setu Kamal’
"an urgent interim injunction which forbids the defendant from publishing the name of the claimant until such time as the compatibility of [section 86] (and, in particular, as it applies in the case of the Defendant) with the laws of the EU and, in particular, Article 63 TFEU and GDPR and the ECHR has been determined.." [54] In each case the claimant maintained that if its name was published, then its business was "likely to be lost". [55] All three applications for interim relief were refused by Chamberlain J. He considered that each disclosed possible abuses of the court's procedures. In particular, he said: i) The claimant in each case failed to explain the delay in making the application, and then sought urgent consideration within 24 hours. ii) Although Mr Kamal made reference to a legal challenge to the publication of information pursuant to section 86 in a case referred to as Veqta Limited he did not give the full name or reference for the case – R (on the application of Veqta Limited) v HMRC – or mention that permission for judicial review was refused on paper, and then refused by Ritchie J after an oral hearing on28 June 2023 : see[2023] EWHC 1659 (Admin) . The Grounds in that case overlapped substantially (if not entirely) with the Grounds in each of these cases, and they were either withdrawn or held to be unarguable. Mr Kamal was counsel in the Veqta Ltd case, and therefore well aware of Ritchie J's decision. The failure to draw this recent decision to the court's attention anywhere in the papers appeared to be: (a) a breach of counsel's duty to the Court; and (b) a breach of the claimant's duty to make full and frank disclosure of relevant matters. iii) The submissions made in support of interim relief did not refer to the relevant test for injunctive relief to prevent a public authority from publishing information which it is obliged or empowered to publish. Injunctive relief is only granted in such cases "for the most compelling reasons" or in "exceptional circumstances": see e.g. R (Governing Body of X School) v Office for Standards in Education[2020] EWCA Civ 594 . The relevant test was not set out, and no explanation was provided as to why it was met. iv) Each application failed to explain the assertion that "the Claimant's business is likely to be lost". [56] On11 August 2023 a show cause letter was sent to Mr Kamal asking him to explain the matters referred to by Chamberlain J. Mr Kamal responded in a signed witness statement dated22 August 2023 . The explanation he has provided, as far as we can understand it, is as follows. i) On delay, Mr Kamal says that the reason was that he was on holiday in Turkey. Although the applications were prepared and filed by20 July 2023 the correct documents were not submitted to the court and were not hyperlinked. They were therefore rejected by the court. He says that "the hyperlinking needed time and the application was resubmitted on25 July 2023 ". ii) On counsel's duty to the court to make full and frank disclosure of all relevant matters, Mr Kamal says that the primary position of the applicant was that the publication should not occur at all for the reasons given in the Grounds. The reference to Veqta Limited was only made as an alternative position. As the same points were to be considered by another court at around the same time, then it would be prudent for the superior court to go first. He says that his understanding was that the decision of Ritchie J did not have precedential value; that if the applicants applied to the European Court of Human Rights they would need to show that they had exhausted all alternative remedies; that whilst there was a considerable overlap between the cases, there was a Ground alleging breach of United Kingdom and EU GDPR which had been abandoned before Ritchie J for reasons which were particular to that case but that Ground was now pursued; and that in Veqta Limited "the publication referred to the readers onto Spotlight 60" whereas it was Spotlight 35 in the 3 applications before Chamberlain J. The former appears to make a value judgment and the latter to a statement of fact, so that the applicants' cases were stronger than in Veqta. iii) On the failure to draw the court's attention to the correct test for injunctive relief, Mr Kamal referred to the authorities which he had cited in his Grounds; he said the right to free movement of capital was being invoked; and the authorities to which he referred were more pertinent than the established caselaw cited at paragraph 16.6.3 of the Administrative Court Guide, to which Chamberlain J had referred as stating the correct test. [57] Mr Kamal's witness statement contains no apology for his omissions, nor acknowledgment that he failed to comply with his obligations to the court in making an urgent application to the Administrative Court. Rather, he says: "
"The facts relied on by the claimant, whether in a pleading or in a witness statement, must be capable of giving rise to the probability of malice, as opposed to a mere possibility … in order to survive, allegations of malice must go beyond that which is equivocal or merely neutral. There must be something from which a jury, ultimately, could rationally infer malice … mere assertion will not do. A claimant may not proceed simply in the hope that something will turn up if the defendant chooses to go into the witness box …"
"93. The court will, however, need to consider what the defendant knew, or should have known, in respect of the allegations made by Ms Sharif about the claimant, when considering the test in 15(3). As noted above, the defendant has not said much about these issues in its evidence, and it has said even less in evidence in response to the suggestion of malice. In this case there is a degree of overlap as between matters relevant to s.15(3) and any case on malice (when pleaded), and so they should be considered at the same time." [98] I agree with the judge that many of Geo's objections were plainly sound. There is evidence of historic animosity between Geo and ARY and their respective principals. The Rahman v ARY case[2017] 4 WLR 22 I have mentioned attests to that, but there is more. It is, however, clear law that none of this can support a plea of malice. Simply stated, the fact that someone dislikes or even hates another person does not make it probable that anything they say about them is malicious in any sense recognised by defamation law. Nor do any of the propositions identified in the judge's [87(c), (d), (e) or (f)] disclose a reasonable basis for alleging malice. These are at best allegations of careless or irresponsible journalism. None of them is capable of establishing a probability of malice. [99] … So the decisive issue is whether Mr Iqbal has a real prospect of establishing that Geo reported Mr Sharif’s allegations in the knowledge that they were false, or with reckless indifference as to their truth. "
"… must not be whittled away by artificially treating comments as if they were statements of fact. On the other hand, if a person could use this defence as a means of escaping liability for a false defamatory allegation of fact, the law would fail to give due protection to reputation. That is why the statutory defence only applies to a statement which is one of opinion." [39] But where the defence is available, the necessary latitude to protect freedom of expression is afforded principally in two ways. (1) First, the opinion that the objective "honest person" could express under s.3(4) is recognised to be extremely wide. The original name of the defence at common law — "fair comment" — was recognised to be a misnomer. To benefit from the defence, the commentator did not have to be fair; s/he simply had to be honest. (2) The classic statement of the test is that of Lord Keith in Telnikoff -v- Matusevitch[1992] 2 AC 343 , 354 "whether any man, however prejudiced or obstinate, could honestly hold the view expressed by the defendant"
"Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred."
"…that is because the objective test for fair comment is concerned with whether the defendant is able to show that a hypothetical person could honestly express the relevant comment on the facts pleaded and/or proved by the defendant "
"The right to comment freely and honestly is not to be whittled away by detailed and subtle arguments as to how a different commentator might have viewed the facts or given them a different emphasis"
"Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred."
"…that is because the objective test for fair comment is concerned with whether the defendant is able to show that a hypothetical person could honestly express the relevant comment on the facts pleaded and/or proved by the defendant "
‘However, if you believe that publication of your letter will improve your reputation then you are mistaken: I expect your actions will be widely seen as an improper attempt to silence your critics.’
‘That order has to do with the interim injunction. In relation to the main claim, I am still awaiting a sealed claim form. In the meantime, may I understand the provisions under which your request is made?’