Kadir & Anor v Channel S Television Ltd [2014] EWHC 2305 (QB)

[2014] EWHC 2305 (QB)Case No HQ12D05105
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2014
Before
THE HON. MR JUSTICE NICOL
Between
Hafiz Abdul KadirClaimantsBarakah UK Ltd (t/a Barakah Money Transfer)ClaimantChannel S Television LtdDefendant
Ben Silverstone (instructed by Hafiz and Haque Solicitors) for ClaimantsMax Cole (instructed by Freeman Harris) for DefendantHearing Hearing dates: 2 nd& 3 rd July 2014
Judgment
[1]The 2nd Claimant operates a money transfer business from premises in the Whitechapel Road in London’s East End. The 1st Claimant was at the material time its director. He is still closely involved with the running of the business. The 2nd Claimant principally serves the Bengali community in London and the transfers it arranges are mostly to Bangladesh. It was incorporated in 2007.[2]Channel S broadcasts nationally in the UK in the Bengali language. On 27th December 2011 the station carried a news report under the heading, ‘Money transfer agency in East London faces accusation of fraud.’ The Claimants contend that the broadcast was defamatory of them and that Defendant was responsible for the broadcast. Although there was a suggestion in correspondence that in December 2011 Channel S was owned and broadcast by another company, the Defendant never properly particularised its case in this regard and there were other procedural defaults. On 24th January 2014 Master Eastman entered judgment for the Claimants for damages to be assessed and for the determination of whether the Claimants were entitled to any other remedies.[3]At the hearing before me, Mr Cole on behalf of the Defendants, applied for an adjournment so that he could apply to set aside the default judgment. There was no evidence at all as to why the Defendants had waited so long to make these applications. Even assuming that there would be jurisdiction to set aside the Master’s judgment (CPR r.3.6(2) would appear to require the set aside application to be made within 14 days of service of the judgment), I considered that there was no basis for exercising such a discretion in the Defendant’s favour.[4]In the course of the hearing, Mr Cole offered an undertaking on the part of the Defendant not to publish the same or similar defamatory words to those of which the Claimants complained. In those circumstances, an injunction would be superfluous. Consequently, the issue for me to decide was solely the amount of damages which each Claimant was entitled to recover.[5]The broadcast was in Bengali, but I have been provided with a translation. The material parts were as follows:
“Headline: Money transfer agency in East London faces accusations of fraud. Customers gather in front of closed office. Presenter: …A money transfer agency in East London faces an accusation of fraud. On Tuesday a large number of people gathered in front of Barakh Money Transfer Agency accusing it of fraud. The director of the money transfer agency, Molana Abdul Kadir is nowhere to be found. We could not get him on the telephone but it has been said on his behalf that he has also been robbed and that is why this situation has arisen…. Reporter: This stair way and the ground floor of this store, this congested area is Barakh Money Transfer. Thousands of customers come to this agency in Whitechapel to send money back to Bangladesh, because of their high rate. Many have received their money but recently some people have had a different experience. First Interviewee: When I came here I found them closed. I could not find anyone. Second Interviewee: I saw one brother from Dhaka crying. He has sent 400,000 Bangladeshi Taka which was supposed to be delivered today but today he has found out that police have closed down the agency. Third interviewee: I have sent 166,550 Taka but it has not gone through. Fourth interviewee: I have sent 300,000 Bangladeshi Taka to my cousin through Govindo Ganj Bank which he has not received. Reporter: In the morning they operated normally but later when people began to gather asking for an explanation for why their money has not gone through, then the police came and arrested two members of staff. According to the police this agency is a victim of robbery. Later the police came to know about the complaints of customers. Some of the students’ hard earned money has also not been sent. Fifth interviewee: I sent money on the 5th of this month. I am a student and I have the receipt as well. When I call them they don’t pick up the phone. Second interviewee: I sent the money the day before yesterday. It was urgent and it has not gone through yet. Third interviewee: I have lost £404. Reporter: We asked people why they come to this agency rather than going to the bigger agencies. First interviewee: We don’t know which agency is good and which is not. We come here for the high rate. …… Reporter: Customers have called with complaints not only from London but also in one case from Oldham. No one knows what is happening with the agency. It is hard to believe someone would flee having advertised in newspapers using his own picture. But confusion arises as to why he is not to be found. Obtaining an FSA certificate is not sufficient. It is also vital to be sure about the quality of the agency and the people of the agency or else this incident of fraud will repeat itself again and again.”
Reporter: In the morning they operated normally but later when people began to gather asking for an explanation for why their money has not gone through, then the police came and arrested two members of staff. According to the police this agency is a victim of robbery. Later the police came to know about the complaints of customers. Some of the students’ hard earned money has also not been sent. Fifth interviewee: I sent money on the 5th of this month. I am a student and I have the receipt as well. When I call them they don’t pick up the phone. Second interviewee: I sent the money the day before yesterday. It was urgent and it has not gone through yet. Third interviewee: I have lost £404. Reporter: We asked people why they come to this agency rather than going to the bigger agencies. First interviewee: We don’t know which agency is good and which is not. We come here for the high rate. …… Reporter: Customers have called with complaints not only from London but also in one case from Oldham. No one knows what is happening with the agency. It is hard to believe someone would flee having advertised in newspapers using his own picture. But confusion arises as to why he is not to be found. Obtaining an FSA certificate is not sufficient. It is also vital to be sure about the quality of the agency and the people of the agency or else this incident of fraud will repeat itself again and again.”[6]Plainly this item referred to the 2nd Claimant. In addition to the words themselves, during the final sequence, the reporter pointed at a sign which read Barakh Money Transfer outside the 2nd Claimant’s premises. As can be seen, the item also referred to the 1st Claimant by name. The title ‘Molana’ denotes a religious title which is reserved for Islamic scholars. In the Bengali Muslim community, the 1st Claimant is known as Molana Abdul Kadir.[7]The first stage in assessing damages for publication of a libel is for the Court to determine the defamatory meaning which the words bore. I was directed to the principles to be applied in deciding meaning for this purpose - see for instance Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14]. There was no dispute about these.[8]I accept that the words complained of had the following meanings which were alleged by the Claimants: - Individuals working for the 2nd Claimant were reasonably suspected of having defrauded a large number of its customers of substantial sums of money. - The 2nd Claimant could not be trusted to transfer its customers’ money to its intended recipients. - The 1st Claimant had dealt with the very serious suspicions against the 2nd Claimant’s employees and the failures to transfer its customers’ money in a highly evasive and incompetent manner. I reject Mr Cole’s submission that the broadcast meant no more than that there were grounds to investigate the involvement of the 2nd Claimant’s employees in fraud. The final words of the reporter, in particular went beyond that. I also reject Mr Cole’s contention that the words did not impugn the professional competence or integrity of the 1st Claimant or that, in his case, as well, the report said only that there were grounds to investigate.[9]In addition to general damages, a libel claimant can seek to recover special damages. The Particulars of Claim pleaded that the 2nd Claimant had suffered special damage, but that head of loss was not pursued by Mr Silverstone on the Claimants’ behalf. Consequently my task was to assess the general damages to be awarded to each Claimant.[10]The purposes of general damages for defamation are well established. Like all damages in tort, they are intended, so far as money is able, to put the Claimant in as good a position as if the tort had not been committed. Since the essence of libel is damage to reputation, one purpose of damages is to compensate the Claimant for harm to his or its reputation and, so far as possible, to vindicate his or its reputation. In the case of an individual claimant (but not a corporate body), damages in defamation are also to provide some compensation for the hurt, distress and other injury to feelings which publication of the libel and, if relevant, the subsequent behaviour of the defendant, has caused to the injured party - see for instance John v MGN Ltd [1997] QB 586, 607.[11]What is needed to vindicate a person’s reputation and compensate for injury to feelings will be influenced by the extent to which the libel was published. Having said that, I recognise that the full extent to which a libel has spread may be difficult to determine. There always has been the potential for rumours to spread along a grapevine. Modern means of communication allow for that percolation of news, whether true or false, to take place far more quickly and more extensively - see for instance Cairns v Modi [2013] 1 WLR 1015 (CA) at [27].[12]Because the Defendant did not properly engage with this litigation, there are no figures for the reach of its programmes. The Claimants pleaded (and the Defendant has not challenged) that it was a particularly popular Bengali channel. Doing the best they can by extrapolating from the size of the Bengali speaking community in the UK, the Claimants estimate that there were about 3,500 viewers of this programme. The Defendant did not suggest any deficiency in this calculation and I am prepared to accept it. The number is relatively modest, but I accept as well the points made by Mr Silverstone that the clients of the 2nd Claimant are primarily Bengalis in East London, the programme was broadcast in Bengali and there is a substantial concentration of the Bengali community in that part of London. In other words, the programme was particularly likely to reach the part of the population from which the 2nd Claimant’s customers were drawn.[13]I need also to take into account the nature of the broadcast. The subject matter was stark and presented in a dramatic way, but it was a relatively short segment of a news programme. The Claimants rely on the one broadcast (together with subsequent access which some viewers will have had via the internet). It is the nature of television programmes that they have something of an ephemeral quality.[14]The 2nd Claimant began business, as I have said in 2007. In the year to the end of August 2011 its turnover was £68,419. That represented a substantial increase from £24,428 for the year ending 31st August 2010. However, the profits of the business were still very small. They had increased from £764 to £968. Although the increase in turnover showed promise, it is fair to say that the 2nd Claimant had not yet reached the stage of being an established business.[15]The monthly accounts for the 2nd Claimant show a reasonably strong performance in September - December 2011 but then a fall by about one third in fees received for the months following the broadcast. The annual accounts for the year ending 31st August 2012 showed that fees received were £78, 583. That was an increase over the previous year but by nothing like the same amount as 2011 had increased over 2010.[16]I have to take into account that the broadcast was not the only significant event in December 2011. Earlier that month, on 5th December 2011, there had been a robbery in the course of transit to or from the 2nd Claimant’s premises. Some £310,000 was stolen. In her evidence, Amena Khanam Miah, the 1st Claimant’s wife, explained that the 2nd Claimant was not covered by insurance for this loss. That will have been a significant loss for a business which was still in its early stages. It will be recalled that the Defendant’s news broadcast included reference to this robbery. Mr Cole argued that this had caused some unease among the 2nd Claimant’s customers and this, in part, was why its customers had gathered outside its premises where they were filmed on 27th December 2011. Mr Kadir said in evidence that these were not his customers, but it seems to me that it is only the customers (or perhaps their friends or relatives) who would have the interest in assembling near Barakah Money’s premises and expressing their concerns.[17]Yet while I should take this other event into account and the unease it may have generated, the news broadcast is still likely to have had a seriously detrimental effect on the 2nd Claimant’s trading reputation. It is obvious that a money transfer agency depends on the trust which is reposed in it by its customers. To suggest that it has employees who are reasonably suspected of fraud and that it cannot be trusted to transfer money to its intended recipients will have seriously undermined the confidence which the customers could have in it.[18]The Claimants do not suggest that the broadcast accused the 1st Claimant of fraud or that there were grounds to suspect him of fraud, but they do say (and I agree) that the words meant that he had dealt with the suspicions of fraud in a highly evasive and incompetent manner. I should add that the Claimants say (and the Defendant has not disputed) that the police never investigated the Claimants for fraud. They had not shut the 2nd Claimant. The police had not arrested any of the 2nd Claimant’s employees. On 27th December 2011 the money transfer agency had opened in the morning, but trade was slow and, for that reason alone, it closed in the afternoon.[19]The 1st Claimant says he was shocked by the broadcast. He is known as a religious scholar and hence he had the title, ‘Molana’. For someone in his position especially, the allegation of evasion and incompetence was likely to be particularly hurtful. Because of the broadcast, he felt it necessary to stand down from being a director of the 2nd Claimant. His wife, Ms Miah, took over from him as director. However, he still works as the manager of the 2nd Claimant. He continues to see customers and remains in a real sense the public face of Barakah Money. He says that because of the losses caused by the broadcast, he and his wife obtained personal loans and sold their residential home. I am not satisfied that this can sound in the damages which I should award to the 1st Claimant. There is no claim for special damages. The 2nd Claimant’s business was, as I have shown, still in its early stages. Furthermore, the annual accounts for the 2nd Claimant show a very substantial increase in staff costs which according to the 1st Claimant’s wife, Ms Miah, had nothing to do with an increase in the number of staff. I cannot be satisfied to the civil standard that the stress and strains of these extra loans and the sale of their home was attributable to the broadcast.[20]Mr Silverstone was on stronger ground when he submitted that the injury to the 1st Claimant’s feelings was aggravated by the Defendant’s cavalier approach to this litigation. It is right that the Defendant never argued that the broadcast was true or fair comment. However, in a document headed ‘Particulars of Defence’ dated 22nd April 2013 it alleged that the Defendant did not become responsible for Channel S until June 2012, that in December 2011 the broadcaster was Channel S Global Ltd, a company which subsequently went into liquidation. This was not in proper form a defence and on 26th April 2013 I ordered that unless within 14 days a properly pleaded defence was filed and served, what purported to be a defence should be struck out. Thereafter, on 9th May 2013 the Defendant served a defence and counterclaim. The allegation that the Defendant was not responsible for the broadcast was repeated in an attached witness statement, but there was still not a properly pleaded defence. So far as the counterclaim was concerned, this was said to be for ‘damages caused by frivolous action’ and damages of £35,000 were counterclaimed. The cause of action was wholly unclear. The allegation that the claim was frivolous was something which aggravated the injury to the 1st Claimant’s feelings. The Defendant has never apologised to either Claimant for this or for the original broadcast.[21]Mr Silverstone took me to a number of other cases where damages have been awarded for libel. However, the differences between the factual circumstances of those cases and the present one were too great for any of them to be of any use in the task which I have to perform.[22]I have to make an overall assessment of the figure which is necessary to serve the function of damages for each Claimant. The meaning of the words regarding the 2nd Claimant was more serious. On the other hand, the 1st Claimant, but not the 2nd, can claim for injury to feelings. In my judgment the right sum for the Defendant to pay is £20,000 to the 1st Claimant and £20,000 to the 2nd Claimant.

Cited in 1 later judgment