Naschie v Macmillan Publishers Ltd (t/a Nature Publishing Group) & Anor [2011] EWHC 1468 (QB)

[2011] EWHC 1468 (QB)Case No HQ09X02934
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 June 2011
Before
THE HONOURABLE MR JUSTICE EADY
Between
PROFESSOR MOHAMED EL NASCHIEClaimant(1) MACMILLAN PUBLISHERS LIMITEDDefendants(2) QUIRIN EUGEN ALFRED SCHIERMEIERDefendant
The Claimant appeared in person for in personAidan Eardley (instructed by Taylor Wessing) for DefendantsHearing Hearing date: 12 May 2011
Judgment
[1]On 12 May 2011 I heard a number of applications by Mr Eardley on behalf of the Defendants in this libel action, made with a view to bringing some discipline and control to the litigation, which is due to be tried over a period of 15 to 20 days beginning on 31 October of this year. They have been sued by the Claimant, Mohamed Salah El Din Hamed El Naschie, in respect of an article in Nature in November 2008 under the heading “Self-publishing editor set to retire”. The Second Defendant was the author of the piece and the First Defendant is the publisher of the magazine.[2]In a letter to the Master dated 19 April of this year the Claimant described himself as being without funds and as living in this jurisdiction only sporadically. The Defendants might be thought therefore to find themselves in a rather unenviable position, in that even if they succeed, there is little prospect of recovering costs. This is no doubt one of the reasons why it is now sought to narrow and define the issues with a view to achieving as efficient and economical a disposal of the litigation as circumstances permit.[3]It is probably fair to say that there are two principles, in particular, that underlie these applications. First, it is always important for the court to ensure that the parties are made to focus on the real issues between them and do not waste time in being diverted from that focus. Secondly, under the philosophy of the CPR, it is important to remove any element of ambush from the litigation and ensure that each party knows the case he has to meet.[4]It is the Claimant’s case that the offending article bore the following natural and ordinary meanings: i) The Claimant has improperly misused his editorial privileges as Editor-in-Chief of the journal Chaos, Solitons and Fractals, in order to self-publish numerous papers he had written, which would not have been published elsewhere as they were of poor quality and had received no, or very poor, peer-review, thereby creating a falsely high rate of citation for his own work and a falsely high impact factor for the journal which he edited; and/or ii) The Claimant has lied on his website about his academic and professional affiliations, in particular his false claim to be a Distinguished Fellow of the Institute of Physics at the Johann Wolfgang Goethe University in Frankfurt, Germany, as well as his false, or probably false, claims to be an adviser to the Egyptian Ministry for Science and Technology and a principal adviser to the Ministry of Science and Technology of Saudi Arabia; and/or iii) The Claimant’s lie about his affiliation to the Johann Wolfgang Goethe University in Frankfurt, Germany was so bad that Walter Greiner, a former director of the Institute of Physics at the Goethe University, had asked for his name to be removed from the Honorary Editorial Board of the journal Chaos, Solitons and Fractals, a request which the Claimant has deliberately ignored; and/or iv) In the premises, the Claimant was unfit to act as Editor-in-Chief of the journal Chaos, Solitons and Fractals and has been forced to retire.[5]For the purposes of the current applications what is primarily in play is the defence of justification. There are other defences pleaded, but they do not loom large for present purposes. Accordingly, it is necessary to focus upon the pleaded Lucas-Box meanings raised on behalf of the Defendants: a) The Claimant abused his position as Editor-in-Chief by publishing in Chaos, Solitons and Fractals (“CSF”) an excessive number of articles written by himself. b) The Claimant’s articles tended to be of poor quality. c) Whilst CSF was under the Claimant’s editorial control his articles had been subject to (at best) very poor peer-review before publication in CSF. d) CSF’s Impact Factor may have been inflated by an excessive rate of citation of the Claimant’s articles in CSF during his editorship. e) There were reasonable grounds to suspect that the Claimant’s imminent retirement as Editor-in-Chief was connected to these aforesaid faults as Editor-in-Chief. Alternatively, if the article meant and was understood to mean that the Claimant was dismissed or forced to retire because of his faults as Editor-in-Chief, then it is true in that meaning also. f) The Claimant was cavalier about his academic and professional affiliations, having falsely claimed to be a distinguished fellow of the Institute of Physics at the Johann Wolfgang Goethe University in Frankfurt, and having made other suspect claims to impressive academic affiliations. If, which is denied, the article meant that the Claimant had claimed affiliations to which he knew he was not entitled, the Defendants will contend that the article was also true in that meaning. g) There were reasonable and serious grounds for suspecting that the Claimant used, or caused others to use, fictitious names in order to respond to enquiries about his editorial practices.[6]The applications are supported by a witness statement from the Defendants’ solicitor, Mr Shanmuganathan, from which it emerges that the Claimant originally had the advantage of a conditional fee agreement with Collyer Bristow, who came off the record in July 2010, stating that they had not had sufficient instructions to be able to progress the matter. From about the end of September of that year, the Claimant began to conduct the proceedings on his own account. The Defendants complain that the Claimant has mishandled disclosure of documents and, furthermore, has sought to introduce time-consuming issues which have no relevance to the dispute.[7]Mr Eardley sought to summarise the problems with disclosure under five headings: i) Lack of information about the extent and adequacy of the Claimant’s search for hard copy documents. It seems that he has had bases in Egypt, the United States, Germany, Switzerland and England and that he has attempted to run the journal, from time to time, from each of those locations. He has said on a number of occasions that he ran the magazine “mainly from overseas”. Yet there is no clear information that gives confidence to the Defendants and their advisers that proper searches for documents have taken place in all these countries. He has never supplied the relevant addresses. ii) It is not clear whether there has been an adequate and proper search for electronic documents. Furthermore, there appears to have been a considerable number of “lost emails”. It seems that some of these have been automatically deleted by the Claimant’s service provider. But there are a variety of relevant email addresses, in respect of which it is not clear that the Claimant has made a proper search. iii) The Claimant had from time to time indicated that he believes it appropriate to rely at trial on any document available on the Internet without needing to disclose it or identify it to the other side, iv) On 25 January 2011 the Claimant informed the Defendants that ten further documents had come to light, apparently sent in by a third party. They were not, however, identified or copied. Yet now he says that he has provided them. v) In early May the Claimant sent a further 19 documents (which, for all the Defendants know, might include the ten previously referred to on 25 January), but some of them are illegible or irrelevant. No explanation has been given as to their source or as to the lateness of disclosure.[8]The particular problems anticipated by the Defendants in relation to disclosure are, first, that they are not able as yet to formulate an application for specific disclosure for lack of information (e.g. as to the Claimant’s addresses). Secondly, some of the Claimant’s witnesses refer to relevant documents in their statements and it is, therefore, especially important that he should try to obtain copies from them.[9]I have already referred to the Defendants’ complaint that the Claimant persistently seeks to introduce irrelevant material. Something of this became apparent in the course of the hearing, since he referred on a number of occasions to a form of conspiracy, involving the Defendants and others, which (he says) underlies the defamatory publication of which he complains. In view of the pleaded issues, there is no basis upon which that could be relevant, but the Claimant insists that it is fundamental to understand this background. Accordingly, much of the evidence is devoted to this subject.[10]Each party has permission to rely on three expert witnesses and it has been directed that the Defendants’ experts are to supply their reports first. In order to instruct them, however, it is submitted that the Defendants need at this stage, as a matter of urgency, further information and documents from the Claimant. The Claimant is somewhat dismissive of the relevance of expert evidence in this case, largely on the basis that his field of special scientific knowledge is so narrow and fluid that it is difficult for him to conceive of anyone qualifying as having sufficient “expert” knowledge of the field. Nevertheless, permission has been obtained to introduce such evidence and it is not right that the Defendants should be hindered in their preparations.[11]Various attempts have been made to obtain the relevant information before applying to the court and the Claimant’s attitude is apparent from the letter of 5 May 2011, from various responses to CPR Part 18 requests and CPR Part 31.14 requests and a witness statement received two days prior to the hearing, which partly reflects the content of the Part 18 response.[12]Against this background it is necessary for me to address the individual applications now brought on the Defendants’ behalf.[13]I turn first to the application to strike out parts of the Claimant’s proposed re-amendments to the amended reply, which is made pursuant to the provisions of CPR 3.4(2).[14]The Defendants amended their pleading in June 2010, largely for the purpose of introducing a case to the effect that the Claimant was in fact dismissed by the publishers of CSF, Elsevier, because of perceived faults on the Claimant’s part in his capacity as an editor. It is also relevant that the Defendants plead that CSF did not have in place any proper peer-review procedures. That is part of their case that the Claimant’s papers were not properly peer-reviewed. It is supposedly in response to these allegations that the Claimant has sought to introduce the re-amendments now challenged. Although it is the Defendants’ case that much of the material therein contained is obscure or irrelevant, they claim to have focused this application only on passages which are obviously of no relevance at all “and/or self-evidently incoherent or speculative”. It is said that the investigation of these matters would prolong or complicate the trial process and the nettle should, therefore, now be grasped.

Response to paragraph 7.12A

[15]The passage which is challenged is in these terms:
“It must be said here that Ms Boehm has indeed suffered intimidation in the form of aggressive phone calls and having her picture put on the despicable blog called El Naschie Watch. In fact the same can be said for the majority of my scientific colleagues and potential witnesses for this case, especially Prof Ji Huan He in Shanghai, China, who is very active and successful in this new field and one of my main colleagues and supporters. They have all suffered harassment and intimidation at the hands of this blog and its owner(s). At this point in time we cannot dismiss the possibility of the Defendant(s) involvement in some way. I say that with the greatest regret and no personal offence is intended because in the past I held Nature and all the Editors, particularly the Editor-in-Chief in the highest esteem as I am sure is evidenced in my early correspondence with them.”
[16]The relevance of Ms Anke Boehm seems to be that she is relied upon to establish that all of the Claimant’s papers were refereed. She has identified five reviewers, each of whom in turn has provided a witness statement. Unfortunately, it appears that all the relevant referee reports have been disposed of following publication of the relevant articles.[17]The primary complaint made by the Defendants is that the El Naschie Watch has no relevance to the true issues in this case and should therefore be removed. That seems to me to be plainly correct.

Response to paragraph 7.14A

[18]This includes the following:
“I heard rumors that [the statistics] were gathered by friends of the Defendant in Germany. Why Germany if true? Is it possible because Renate Loll is German and was working at the Max Planck Institute before moving to Holland? With all due respect, I am only asking. Did you get the information from the Max Planck Institute? I guess I could wait for ever to obtain the accurate answer.”
[19]The essential complaint by the Defendants is that this represents no more than speculation. It appears to be an attempt to link the Defendants with Renate Loll, who happens to be the author of an article in Scientific American of which the Claimant disapproved. This was because it failed to credit him as the originator of certain scientific ideas. The Defendants have stated in evidence that Scientific American is not only published by a different company from that responsible for publishing Nature but is also distinct editorially. This has nothing to do with the pleaded issues. The relevant paragraph of the amended defence is purely for the purpose of setting out statistics relating to the citation, in CSF, of the Claimant’s own articles.

Response to paragraph 7.17C-H

[20]The passage under challenge is as follows:
“I invite the solicitors of Nature as well as the honourable Court to look into the details of a blog called El Naschie Watch All The Time where virtually thousands of immoral allegations and pornographical pictures are published to ridicule and defame me as well as insulting my colleagues and supporting staff for instance Frau Boehm. Lydia El Naschie and my daughters did not escape being slandered by these animals either. I am afraid much of what Nature’s solicitors have alleged against me is the stuff published on this despicable blog run by a shadowy creature who seems to be connected or may be connected to Christoph Drosser of Die Zeit – which is again owned by the Defendant and therefore Drosser is a servant of the first Defendant. No one knows exactly who is financing these internet criminals or who is behind it for the last two years. However some people think it is easy to guess.”
[21]The passage in the amended defence to which this is supposed to be a response merely sets out an account of how the Claimant came to be dismissed, according to the Defendants, by Elsevier. This passage is simply irrelevant, containing speculation and further attacks on El Naschie Watch, as well as on Christoph Drosser of Die Zeit, which have nothing to do with the issues in the case. As a matter of fact, as Mr Shanmuganathan confirms, the Defendants do not own Die Zeit.

Response to paragraph 7.17I

[22]This appears to be more of the same:
“ … and I must add that if Nature may like to involve Elsevier in these proceedings, then we must translate the despicable German defamation article against me in Die Zeit, owned by Macmillan and which was written by a colleague of the second Defendant, namely Christoph Drosser and show the extent of the conspiracy. Die Zeit makes reference to John Baez and it is also owned by the Defendant Macmillan.”
This appears again to consist of speculation about the supposed conspiracy and is irrelevant.

Response to paragraph 7.17I (a second passage)

[23]The paragraph also contains the following question:
“Why did a Nobel laureate in physics keep my scientific company and friendship for five years and not say anything negative, that is to say until the Scientific American article of Renate Loll appeared?”
This appears to have no relevance to the issues in the case. The paragraph to which it purports to respond is concerned simply with Elsevier’s assessment of the Claimant’s conduct as Editor-in-Chief.[24]It seems to me that all these passages must come out, as they would only serve to prolong and complicate the resolution of the true issues. The Claimant suggests that they are “indispensable background information”, but he does not apparently appreciate the need to stay within the bounds of the parties’ pleaded cases.[25]I turn to the Defendants’ application for summary judgment on the claim for special damages. It appears that at one stage the Claimant was prepared to withdraw this claim, although he was not prepared to accept the costs consequences which would ordinarily follow.[26]It appears to be alleged that as a result of the publication complained of the Claimant’s service contracts were “frozen”. The short point is that no evidence has been produced, or documents disclosed, which go to support that underlying but primary contention.[27]In any event, in so far as the service contracts referred to related to commitments undertaken in Saudi Arabia, it is necessary to remember that the claim does not extend to publication in that jurisdiction.[28]No accounts have been produced to support any claim for loss of earnings.[29]In these circumstances, it appears equally clear that the claim for special damages must be struck out and the Claimant confined, therefore, to general damages for hurt feelings and loss of reputation.[30]The next application was to restrict evidence at trial and/or to exclude certain matters from consideration. Mr Eardley relies upon the jurisdiction under CPR 32.1, relating to witnesses, and to CPR 3.1(2)(k) for the general power to exclude particular topics from consideration at trial by way of case management. He does not suggest that each and every passage in the witness statements should be struck out, because the trial is to take place in front of a judge sitting without a jury. That is why he takes the more general approach of identifying nine topics for exclusion.

(i) Dr Renate Loll’s article in Scientific American

[31]The application to remove this material reflects the order sought, and now granted, in relation to the Claimant’s proposed re-amendments. The Scientific American article can have nothing to do with the pleaded issues as they now stand. (ii). The supposed links between the Defendants and Dr Loll and/or Scientific American[32]Since the allegations or speculation about the supposed connections between the Defendants and Dr Loll or Scientific American have been struck out, there is no possible basis for introducing them at trial. (iii). Other defamatory allegations about the Claimant[33]Paragraph 7.2 of the amended particulars of claim relies, apparently for the purpose of aggravating damages, upon republications of the Nature article and, in particular, on three specified publications on the Internet.[34]The Claimant’s witness statements refer to the following publications: i) an unidentified article in the magazine of the Institute of Physics; ii) a hitherto unspecified article by Christoph Drosser in Die Zeit; iii) an unspecified article in Physics World; iv) an unspecified article by someone described as “a president of a mathematical society”; v) unspecified entries on the El Naschie Watch website (apart from one alleged republication which has been identified); vi) an article in the Guardian Education Supplement dated 30 June 2009; vii) an article in the New York Times dated 14 November 2010.[35]Mr Eardley drew my attention to the decision in Clarke v Bain [2008] EWHC 2636 at [41]-[61]. This emphasised the need for careful control by the court where claims for aggravated damages are concerned. It is submitted that it is not proportionate for the Defendants in this complicated litigation to have to deal with articles on the basis that they may be republications of the words complained of – in circumstances where they have not even been clearly identified. There is no clear basis for attributing responsibility to the Defendants.[36]I agree that investigation into these vague complaints would be disproportionate and should therefore be excluded. (iv). Any defamatory publications concerning others, in particular colleagues or supporters of the Claimant[37]There are references in the Claimant’s witness statement to such matters: see in particular paragraphs [10] and [15]. It is difficult to see what conceivable relevance these could have and accordingly they should be excluded. (v). Alleged links between the Defendants and others who may have defamed the Claimant (or colleagues or supporters)[38]There are various references to such matters in the Claimant’s witness statements which it is unnecessary to list here. I am afraid that they can be characterised as relating to speculation about the “conspiracy” case. Time should not be spent on them at trial and they should be excluded. (vi). Alleged collusion between the Defendants and the Claimant’s political enemies in Egypt[39]There are particular references in the Claimant’s witness statement at paragraphs [26] and [30]. It seems to relate once again to the supposed “conspiracy”. It has nothing to do with the pleaded issues. (vii). Agreements between Nature or Scientific American and the King Saud University[40]In the Claimant’s witness statement at paragraph [32] there is an apparent reference to a commercial relationship between either Nature or Scientific American and the University. This can have no relevance to any pleaded issue in the case and should accordingly be excluded. (viii). Expressions of opinion about the contents of the article and/or the Defendants’ conduct[41]It is elementary that evidence, whether from the Claimant or anyone else, which consists of expressions of opinion about the fairness of the article or speculates about the Defendants’ motives or conduct cannot be relevant or admissible. I agree, therefore, that they should be excluded. (ix). Expressions of opinion about the Claimant’s editorial standards and the appropriate method of peer-review[42]In so far as evidence is to be led about peer-review standards, that is for the experts. As to what actually did or did not take place while the Claimant was at CSF can be addressed by factual witnesses. But the expression of opinion should be confined to the experts.[43]The next application to be considered is for production of documents mentioned in the witness statements relied upon by the Claimant. It is provided by CPR 31.14(1)(c) that a litigant shall have a right to inspect any document mentioned in a witness statement (i.e. one to which there has been a direct allusion or specific reference): see e.g. Expandable Ltd v Rubin [2008] 1 WLR 1099.[44]During the course of the hearing Mr Eardley indicated that, in the light of what the Claimant had told the court on that occasion, the application would not be pursued. This was because it was by then accepted that the Claimant had done everything that could be expected of him in this respect.[45]The Defendants also seek an order for further information and/or clarification of the Claimant’s case in certain defined respects.[46]The first subject concerns the issue of peer-review of those papers authored by the Claimant and published in CSF. It appears that there were 58 articles published in 2008. The Claimant should identify the referees for each article because their qualifications, and the regularity with which they reviewed such articles, are issues upon which the Defendants’ experts will need to comment. Furthermore, it will be necessary for the Defendants’ counsel to cross-examine such reviewers as are being called by the Claimant as to why alleged faults or defects in those articles survived the relevant reviews.[47]Secondly, further information is sought as to the place or places where CSF was administered between 2006 and 2008. This is relevant, first, to the issue of whether the Claimant has complied with his disclosure obligations. The Defendants’ advisers are not in a position to judge whether a proportionate search has been carried out unless they are properly informed as to how many addresses and/or locations were involved. Secondly, the Defendants’ proposed expert witnesses will need to know exactly how the CSF journal was run. This information should be provided.[48]In so far as there have appeared inaccurate statements on the Claimant’s website, the Defendants are entitled to know who was responsible for posting them and allowing them to remain. This again is a legitimate request.[49]There is a good deal of muddle and confusion about the use of the names C Cole, P Stanton, P Green and P Cooper. The Defendants ask for, and are entitled to, an unequivocal statement of the Claimant’s case in these respects. If and in so far as he only became aware of the true position recently, he should provide an explanation as to how he learnt of this.[50]Finally, Mr Eardley sought an extension of time for service of his experts’ reports, which had been due on 22 April 2011. I will extend the date until 23 June 2011 on the basis that it is unreasonable to expect the reports to be served until the information from the Claimant is forthcoming. It may be that a moderate further extension will be required, but I can discuss this when the judgment is handed down.