Shergill v Purewal & Anor [2010] EWHC 3610 (QB)

Case No TLJ/10/0718[2010] EWHC 3610 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice,Date Date: Wednesday, 15 th December, 2010
The Strand,
London WC2A 2LL
Before
SIR CHARLES GRAY
Between
SHERGILLClaimantPUREWAL & ANOTHERDefendant
Digital Transcript of Wordwave International, a Merrill Communications Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7422 6131 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
Mr J Crystal (instructed by Blacks LLP) appeared for ClaimantMr H Spooner (instructed by Sahota Solicitors) appeared for Defendants
Judgment

SIR CHARLES GRAY:

[1]The issue which arises on the application of the defendants for a stay of the proceedings in this libel action is whether the claim made by the claimant is non-justiciable on the ground that the court at the trial would be required to rule on a doctrinal and religious issue which has arisen within the Sikh community. I should add that the application for a stay is made without an application notice having been served on what was to have been the first day of the trial of the action. I will have to return to the consequences of this at a later stage.[2]The claimant is Mr Dajid Singh Shergill. He is active in the Sikh community in this country, where he has lived for many years. He has been an active member of various voluntary organisations, which have as their object the furtherance of the cause of the Sikh community within this country.[3]There are two defendants. The first is Mr Rajinder Singh Purewal, and the second is a company PTI (Derby) Limited. The former defendant is alleged in the particulars of claim to have been the editor of the Panjab Times, in which newspaper the alleged libel was published. Mr Purewal denies having been the editor of that publication at the material times. The corporate defendant admits having published the three articles of which Mr Shergill complains.[4]For the purpose of deciding the issue which arises on the application of the defendants for a stay, it is necessary to look in some detail at the nature of the factual issues which would arise for determination if the court were to decide that the action should proceed to trial.[5]The first of the three articles which Mr Shergill asserts to have been libellous of him was published on 26th June 2008. Questions have arisen as to the accuracy of the translation of that article, but I think it is common ground that the versions of the three articles which are included in the main bundle of documents are accurately translated. The first article was published on 26th June 2008. It is headed:
“Jeet Singh becomes Preaching Secretary of Bhekh Mandal having abandoned Sikh Principles. Kulwinder Singh and Shergill’s conspiracies to provoke violence at Oldbury and High Wycombe Gurduwaras (Sikh Temple) fail.”
The article makes reference to a judgment having been given in India on 10th June, and it refers to events which are said to have taken place in England on 11th June and 15th June 2008. I will have to return to that article in more detail in due course.[6]The second article complained of was published in the Panjab Times on 3rd July 2008. Again I will quote the heading:
“The Preaching Secretary Bhekh Mandal (Bhekh Sect Haridar) Jeet Singh of Nirmal Kutia Johlan – the last Saint of Gurduwara Amrit Parchar Dharmik Diwan Bradford, Oldbury Birmingham, High Wycombe UK and Gurduwara Nirmal Kutia Johalan. The Holy Successor appointed with the blessing of Sant Harbhajan Singh is not the 108th Sant and also not the Patron of GAPDD (UK) Constitution (The Constitution 1991).”
That article also makes reference to the events said to have taken place on 11th and 15th June 2008. I will have more to say about the terms of that article in due course.[7]Finally, the third article of which the claimant complains was published in the issue of the same publication for 17th July 2008. Its title need not, I think, be quoted in full. It is sufficient if I quote the subheading which reads:
“Name of the founder of three of the Gurduwaras in the UK holy man Sant Baba Gian Singh, excluded from the Court proceedings. Not only Jeet Singh, his supporters in UK are a sham too.”
That rather longer article is concerned also with events said to have taken place on 11th and 16th June 2008. Not only Jeet Singh, his supporters in UK are a sham too.”[8]In due course, proceedings claiming damages for libel were issued on behalf of Mr Shergill. Paragraph 1 of the particulars of claim sets out his various charitable activities and positions. Then the meanings attributed on behalf of Mr Shergill to the three articles are set out in paragraphs 7, 9 and 11. I should, I think, just quote the words of the pleading. The meaning attributed to the first of the three articles complained of is that “the Claimant had sought to instigate serious riots and create an atmosphere of terror by proclaiming that Baba Jeet Singh had won a case in the Lower Court of Jalandhar.” The meaning attributed to the second of the three articles is as follows:
“…that the Claimant had made distorted statements in the media and in Gurduwaras in relation to a judgment of 11 June 2008 and such nearly caused a riot and trouble.”
Finally, the third article is said to bear the meaning that the claimant “was seeking to misappropriate Gurduwaras in Oldbury Birmingham and High Wycombe by trick and false rumours and would be responsible for any unpleasant incidents or violence which occurred.”[9]Whilst those are the meanings attributed on behalf of the claimant to the three articles, the defendants are not confined to the meanings ascribed to the articles complained of by the claimant in formulating their defences to the claim. It is, I believe, common ground that the defendant in a libel action may seek to justify words in whatever meaning or meanings the words are reasonably capable of bearing, and is not confined to justifying the meanings put on the words on behalf of the claimant.[10]Turning to the defence, paragraph 3 avers that Mr Shergill has no genuine interest in bringing these proceedings to protect or preserve his reputation, but rather is seeking to gag the defendants from criticising the claimant’s active campaign to establish control and ownership for the benefit of a “holy man” in India of three Gurduwaras in the UK. The holy man referred to is identified as being His Holiness Sant Baba Jeet Singh Ji Maharaj (to whom I will refer, without any disrespect, if I may, as simply “Baba Jeet” for the purposes of the remainder of this judgment).[11]The substantive defences relied on are justification and fair comment (as it used to be called), or honest opinion (as I think one is supposed to call it nowadays). It will suffice if I quote paragraph 13, which contains the plea of justification. It is alleged on behalf of the defendants that the article was true, insofar as it conveyed the meaning that Mr Shergill was effectively causing and/or contributing to a tense, uncomfortable and intimidatory atmosphere where some felt terrified as a result of his attendance at the Gurduwara on 11th and 15th June, so much so that there was a real risk of unrest or communal strife. The supporting particulars of justification start with an allegation that Mr Shergill is a leading and active supporter in the UK of Baba Jeet, whose claims to ownership of three UK Gurduwaras were and are still the source of much heated controversy. Reference is then made in the particulars to the Indian judgment, which is said to have “falsely and provocatively claimed by the claimant as an absolute victory for Baba Jeet”. Reference is also made to the Indian court decision in subparagraph 3 of the particulars, which includes the allegation that many in the congregation of the Gurduwaras at Oldbury and High Wycombe regarded Baba Jeet as “an imposter or “fake Baba”. Those particulars are repeated by way of defence of justification to the claims in respect of the second and third articles as well.[12]Finally, as regards the statement of case, I should refer briefly to the reply. It is to be noted that in the opening two subparagraphs at paragraph 9 of that statement of case, which deals with the particulars of justification pleaded on behalf of the defendants, it is pleaded on behalf of the claimant that:
“(i) The Claimant is a supporter of the ‘Holy Saint’ whose legitimacy and control of Gurduwaras based in Oldbury, High Wycombe and Bradford is wrongfully contested... (ii) The Claimant is a party to a Chancery claim to regain control of the Gurduwaras at Oldbury and High Wycombe. As pleaded above, the judgment on or about 11 June 2008 confirmed the legitimacy of the ‘Holy Saint’ and such had no reason to cause anxiety or concern.”
I need say no more about the statements of case.[13]I turn now to the witness statements. In his witness statement Mr Shergill deals at paragraphs 16 and 17 with the events which took place, according to him, on 11th and 15th June 2008. In paragraph 52 of his witness statement Mr Shergill says this:
“The reference that I am the follower of a cult and/or fake (referring to his Holiness), I find extremely offensive and upsetting.”
The witness statement goes on to deal in detail with the events covered in the articles complained of. I do not think I need refer in any greater detail to the witness statement of the claimant; nor do I think it is necessary to refer to the various supporting witness statements relied on by the claimant.[14]As regards the evidence called for the defendants, the witness statement of Mr Rajinder Purewal (the first defendant), who is now retired, deals principally with the question of whether he was the editor of the newspaper concerned at the relevant time. He denies that he was the editor and therefore denies having published the libel. However, the first defendant’s son, Maninder Purewal, does deal in detail with the three articles sued on at paragraphs 10 and 11 of his witness statement. In those paragraphs the witness refers to the longstanding dispute between rival parties split on religious grounds as to the status of a holy man in India, namely Baba Jeet. Reference is also made to ongoing heated litigation both in India and in the UK where, according to the witness, a key issue was the religious status of Baba Jeet as a saint. The witness continues:
“So the underlying conflict between the parties is a religious one namely whether Sant Baba Jeet Singh was a true Saint with powers over the Oldbury (and the two other Gurduwaras) Gurduwaras, or simply an ‘imposter’ trying to gain leadership by fair means or foul.”
In paragraph 11 the witness says that he felt it right and fair that Mr Shergill’s opponents should be allowed to give their side of the story.[15]There is also a supporting witness statement from Mohinder Khaira, a Sikh priest. He refers in his witness statements to Baba Jeet as being “an imposter”. He refers to the Chancery proceedings brought by the claimant, and he gives a brief history of the three Gurduwaras with which those proceedings are concerned. Mr Khaira refers in paragraph 5 to the three Gurduwaras being “always devoted to mainstream Sikhism and not part of any bekh or sect”.[16]Exhibited to that witness statement there is a notice in support of a banning notice on Mr Shergill. The notice is signed by a very large number of individuals. It contains this assertion:
“His continued promotion and public support [by Mr Shergill] for self-styled sect leader Jeet Singh causes us tension and we are afraid that trouble of a serious nature may erupt at any minute…”
[17]There was handed in in the course of the hearing a counter petition (if I may call it that) against the banning of the claimant, and the text of that counter notice includes the following:
“…we are completely against the banning of Mr Daljit Singh Shergill... It is our view that no follower of the Sikh religion should be banned from any Gurduwara as this grossly contravenes the fundamental principles of the Sikh religion and goes against the teachings of [a leader, who is named].”
[18]Mr Henry Spooner, counsel for the defendants, contends that the action should be stayed. The reasons for that contention can be summarised as follows. Mr Spooner says that the issues raised in this case are inextricably linked with doctrinal issues and disputes within the Sikh community. These doctrinal issues arose after the sudden death in March 2002 of His Holiness Sant Baba Harbhajan Singh Ji (Virkat) Maharajah, who left neither a named successor nor a will. It is alleged that Baba Jeet then held a bekh (a conclave of senior priests), who appointed him as successor. It is claimed that this conclave had no power to so appoint Baba Jeet, and he is improperly passing himself off as the true heir. Mr Spooner further contends that Mr Shergill claimed that the main Gurduwara was not in fact a Gurduwara at all but a Dera. If the latter proposition is deemed to be correct, then Baba Jeet claims entitlement to the ownership of the three UK Gurduwaras. This question of the legitimate ownership of the UK Gurduwaras lies at the heart of this case and is the direct cause of the controversy between the parties. Mr Spooner says that the defendants strongly dispute the lawful succession of Baba Jeet in March 2002.[19]In the course of his submissions, Mr Spooner dealt with a suggestion which has been made by Mr Jonathan Crystal who represents the claimant. The suggestion was that this is a case where such doctrinal issues as arise, if there are any, could and should be hived off or divorced from the non-doctrinal issues, leaving the latter but not the former to be determined at trial. When Mr Crystal refers to the non-doctrinal issues, he is referring in the main, I think, to the events which are said in the articles complained of to have taken place on 11th and 15th June 2008. I will have to return to that in due course.[20]Mr Crystal argues that there is no reason why his client should be denied access to the court or that he should be denied a remedy for the libels published about him. Mr Crystal argued that the three articles of which Mr Shergill complains do not in truth raise any doctrinal issues; rather, those articles make factual allegations about the conduct of Mr Shergill, and in particular his conduct in the Gurduwaras in Bradford, Birmingham and High Wycombe on 11th June and 15th June 2008. Mr Crystal’s contention is that there is no reason why those issues should not be determined at trial. He contends that there is no need to go into the religious issues which simply form part of the background to the events which took place in June 2008.[21]As I understood him, Mr Crystal was inclined to accept, and in my view rightly, that the third article does, at least arguably, contain material which could be described as relating to doctrinal issues. Mr Crystal told me that if I were to decide that the third article is not justiciable, then his client would wish to proceed to trial on the first and second articles complained of. In other words, the fallback position of Mr Crystal was that, even if the third article should be stayed, the first two articles are not such as would justify the imposition by the court of a stay of proceedings.[22]The issue of justiciability arose earlier this year in an action brought by Baba Jeet against Mr Hardeep Singh. Amongst the papers are two judgments by Eady J and Sharp J dated respectively 8th February 2010 and 17th May 2010. I will refer later to what was said in those judgments and I will refer to the basis on which permission to appeal the judgment of Eady J was granted. First, I should refer briefly to some of the more recent authorities cited by Mr Spooner, which address the question in what circumstances the court will stay an action on the ground that the issues raised are not justiciable.[23]The first is R v The Chief Rabbi Ex parte Wachmann [1992] 1 WLR 1036. That was a case where a local rabbi had had his employment terminated after the Chief Rabbi declared him to be morally unfit because of allegations of adultery with a member of his congregation. Simon Brown J said this:
“As Mr Beloff points out, the court would never be prepared to rule on questions of Jewish law. Mr Carus, recognising this prospective difficulty, says that in advancing his challenge here, the applicant would be prepared to rely solely upon the common law concept of natural justice. But it would not always be easy to separate out procedural complaints from consideration of substantive principles of Jewish law which may underlie them…the court is hardly in a position to regulate what is essentially a religious function - the determination whether someone is morally and religiously fit to carry out the spiritual and pastoral duties of his office. The court must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state. One cannot, therefore, escape the conclusion that if judicial review lies here, then one way or another this secular court must inevitably be drawn into adjudicating upon matters intimate to a religious community.”
[24]Next, Mr Spooner referred me to a decision of Munby J (as he then was) in Sulaiman v Juffali. I do not have a reference for that case, nor do I have the text of the judgment. The issue in that case was whether the English court should recognise a talak divorce valid both according to Sharia law and valid according to the law of the parties’ countries of domicile but which was pronounced in England. Having decided that English law did not permit him to recognise the divorce, Munby J at paragraph 47 said this:
“My decision is not in any way founded upon any lack of respect either for the husband’s religion or for his culture. Although historically this country is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take pride, sworn to do justice ‘to all manner of people’. Religion – whatever the particular believer’s faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.”
[25]Next I refer to Blake v Associated Newspapers [2003] EWHC 1960 (QB), which was a decision of mine. The claimant’s case was that he had been libelled in the Daily Mail, which published a story describing him as a self-styled bishop who had married a gay couple. The newspaper relied on the defences of justification and fair comment. My conclusion on the lay and expert evidence adduced in that case was that many of the issues raised by each side did “fall within the territory which the courts, by self-denying ordinance, will not enter”. I then had to consider whether the action could, nevertheless, proceed to trial or whether it must be stayed, thereby preventing the claimant from obtaining the vindication which was the avowed object of the proceedings. My conclusion on that issue was that it was impossible for me to say that the non-justiciable issues in the case were so marginal that the action could proceed to trial on the other justiciable issues raised. I posed the question whether those issues were capable of being adapted or tailored so as to permit the action to proceed. At paragraph 38 of my judgment I said:
“It appears to me that the issues in the present action cannot be adapted so as to circumvent the insuperable obstacle placed in the way of a fair trial of this action by the fact that the court must abstain from determining questions which lie at the heart of the case. I am of course well aware that a stay will deprive the Claimant of the opportunity to obtain vindication. But I am driven to the conclusion that in the present case…there is no alternative but to stay the action.”
[26]I return now to the two judgments given in the case of Baba Jeet v Hardeep Singh. I can take the judgment of Sharp J shortly, as it appears to me, whilst she declined to order a stay, Sharp J’s decision was a holding operation. In any event, a stay was later imposed in the same case by Eady J, for reasons given in his judgment dated 17th May 2010. At paragraph 8 of his judgment Eady J set out the meanings relied on by the claimant, the first of which was that the claimant was the leader of a cult and an imposter. That was one of the meanings sought to be justified by the defendant in his defence. There were two other meanings relied on by the claimant which the defendant did not seek to justify. Having considered the manner in which the parties pleaded their respective cases and the arguments of counsel, Eady J decided that he could not accept the submission on behalf of the claimant that the suggestion that the claimant was an imposter was an allegation of fraud which did not involve the consideration of doctrinal differences. The reasons given by the judge for that view is that he rejected the submissions because “it seems to me plain that the allegation of ‘impostor’ cannot be divorced from questions of Sikh doctrine and practice. Of course, I recognise that if an allegation were made of someone, who happened to be a religious leader, that he had his hand in the till, or assaulted a follower, this could be determined separately and without reference to religious doctrine or status, but that is far from this case. The issue whether this Claimant is or is not fairly described as an ‘impostor’ cannot be isolated and resolved without reference to Sikh doctrines and traditions.” The judge said he was driven to accept that the case was not capable of being adapted so as to circumvent the problem. At paragraph 43 he said that he was driven to the conclusion that this, like the case of Blake, was one where the issues cannot be adapted so as to circumvent the insuperable obstacle placed in the way of a fair trial of the action. Accordingly, he stayed the action.[27]I should, for completeness, refer briefly to the fact that I was informed by counsel that Baba Jeet obtained permission to appeal from the single judge on 22nd October 2010 following an oral hearing. I note from the transcript, however, that counsel appearing for Baba Jeet expressly accepted that the courts will not determine religious doctrinal disputes, nor will they pronounce on whether religious procedures have been properly observed. Counsel continued that it was self-evident that there were defamatory allegations in that case which had nothing to do with religious background. Later, counsel told the single judge, Smith J, that he was happy to limit his client’s appeal so that the only question that should arise at the trial is whether the words “accused cult leader” are themselves derogatory in meaning. As I have already indicated, permission to appeal was granted on the limited basis that appears from the transcript. I am told that that appeal is due to be heard in February.[28]I now return to the facts of the present case. It appears to me that there are two questions to be answered. The first question is whether Mr Crystal is correct in his assertion that no doctrinal issues, properly so called, arise in this case. The second question, which arises if, and only if, my answer to the first question is that doctrinal issues do arise, is whether it is nevertheless possible to hive off or divorce those issues and, if necessary, to adapt non-doctrinal issues so that the case can proceed, albeit on a limited basis. In approaching those questions, I bear in mind the great reluctance which any judge feels about preventing any claimant from having the opportunity to pursue his claim, and in this case, being a libel action, to vindicate his reputation.[29]As to the first question, the contention of Mr Crystal is that all three articles, or at least the first two, are dealing with alleged troublemaking on the part of Mr Shergill on 11th and 15th June 2008 which, according to the first article, was designed to “create an atmosphere of fear” and to create “an atmosphere of tension amongst the congregation”. Mr Crystal advances a similar submission in relation to the second article, where the allegation is that on 11th June 2008 Mr Shergill “published distorted views in the Punjabi media”, and that “from the stages of the Gurduwara he publicised Baba Jeet as the proprietor, administrator and patron of the three Gurduwaras”, thereby creating “an atmosphere of tension” and “violence was just avoided”.[30]In regards to the third article complained of, the meaning put on the article on behalf of the claimant is that Mr Shergill was seeking to misappropriate the three Gurduwaras “by trick and false rumours and would be responsible for any unpleasant incidents or violence which occurred”. Mr Crystal again submits that the court would be able to decide the truth or falsity of that charge without having to determine any doctrinal issues.[31]As I have already pointed out, the defences in this case include pleas of justification in relation to all three articles. The particulars of justification are set out in paragraph 13 of the defence. I need only refer, for present purposes, to three of the particulars of justification. Indeed, I have already referred to them in the course of this judgment, so it will suffice if I identify them by their numbers. They are paragraphs 13(i), (ii) and (v). In paragraph 20 of the defence (to which I have also already made reference) there is a further particular of justification asserting that the claimant was a follower of a sect which was not part of mainstream Sikhism and the congregation should be aware of this and not be tricked into thinking otherwise.[32]For completeness, I should also refer to paragraph 3 of the defence, which is an allegation that the claimant has no genuine interest in bringing these proceedings, but rather is seeking to gag the defendants and prevent them from criticising Mr Shergill’s active campaign to establish control and ownership of the three Gurduwaras.[33]So those are assertions made by way of justification on behalf of the defendants. No attempt has been made to strike any of them out and, in my view, rightly so. Moreover, it is to be noted that in the reply Mr Shergill asserts the legitimacy of the claims he is advancing as to Baba Jeet’s legitimacy. Paragraph 9 of the reply includes the following assertions:
“(i) The Claimant is a supporter of the ‘Holy Saint’ whose legitimacy and control of Gurduwaras is wrongfully contested.”
At (ii):
“The Claimant is a party to a Chancery claim to regain control of the Gurduwaras… As pleaded above, the judgment on or about 11 June 2008 confirmed the legitimacy of the ‘Holy Saint’ and such had no reason to cause anxiety or concern.”
[34]As I have already pointed out, it is open to a defendant in a libel action to justify words of which the claimant complains in any meaning which those words are reasonably capable of bearing. In my judgment, it would not be possible to hive off or divorce the issue of the legitimacy or otherwise of the claims that Baba Jeet is the successor to the sainthood. To attempt to do so would be unjust to the defendants. It appears to me to be fundamental to their case on justification that the claims of Baba Jeet to be the true leader and owner of the Gurduwaras are unjustified. It is the defendants’ case that the “provocative” and troublemaking claims by Mr Shergill and others that Baba Jeet is the “Holy Saint” were the reason why tension was created by their visits to the Gurduwara on 11th and 15th June 2008.[35]The third article complained of, in my view, gives a full and detailed explanation of why it is, according to the defendants’ case, that Baba Jeet cannot be the true successor and why the defendants assert that the claims of Mr Shergill and others are baseless. I have mentioned the position adopted by Mr Crystal in relation to the third article, namely that he would proceed to trial on the first and second articles if I were to find that the third article does raise non-justiciable doctrinal issues. I am of the opinion that this course would not only be artificial in the extreme, but also that it would not solve the problem. I say that because I am of the clear view that a fair trial of the claim by Mr Shergill to damages for publication of the first and second articles would be impossible if the defendants were to be prevented from advancing their pleaded case as to why those articles were substantially true. That pleaded case inevitably raised the doctrinal issues relating to the Sikh religion and its traditions. This case, like the cases of Blake and Baba Jeet v Hardeep Singh, is one where, in my view, it is impossible to adapt the issues in such a way as to circumvent the insuperable obstacle placed in the way of a fair trial of the action by the fact that the court is bound to abstain from determining questions which lie at the heart of the case.[36]For all those reasons, I feel obliged to accede to the application that this action be stayed in relation to all three articles complained of. __________

Cited in 2 later judgments