Alsaifi v Trinity Mirror Plc & Ors [2017] EWHC 1444 (QB)

[2017] EWHC 1444 (QB)

Case No HQ17M00903

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/06/2017

Before

MR JUSTICE WARBY

Between

Tariq AlsaifiClaimant

(1) Trinity Mirror Plc and Board of DirectorsDefendants

(2) Newcastle College Group and Board of GovernorsDefendant

The Claimant appeared in person for in person

John Stables (instructed by Foot Anstey LLP) for First Defendant

Kate Wilson (instructed by Ward Hadaway Solicitors) for Second Defendant

Hearing Hearing date: 13 June 2017

Judgment Approved

Mr Justice Warby :

Introduction

[1]This is the judgment of the Court on two interim applications in this action for libel. The main issues raised by the applications concern(1) the meanings which the words complained of are capable of bearing and

(2) the extent to which, if at all, the claims advanced by the claimant, Mr Alsaifi, have any real prospect of success having regard to that issue, and the reporting privileges provided for in s 15 of and the Schedule to the Defamation Act 1996, paragraphs 9 and 11.

[2]The hearing in this case followed shortly after the hearing of applications in Alsaifi v Amunwa

[2017] EWHC 1443 (QB)

which raised issues bearing some similarity to those that arise now. It will be convenient to make some reference to my reserved judgment in that case (“the Amunwa Judgment”). However, this judgment has been prepared separately, in relation to the separate issues in this case, and in a form which is designed to be understandable independently of and without reference to the Amunwa Judgment. That inevitably means there will be some repetition of matters dealt with in that judgment. The claims

[3]Mr Alsaifi sues in respect of an article published on and after 15 March 2016 in the online newspaper chroniclelive.co.uk (“Chroniclelive”), under the headline “Newcastle College Teacher banned from profession after making ‘sexual’ advances on a pupil.” This is, it seems, the online version of the North Eastern paper, the Evening Chronicle. This article is the only publication that has so far been made the subject of any claim. But it was one of two articles published on Chroniclelive that feature in the case. For that reason it is convenient to refer to it as “The First Article”.

[4]The First Article arose from and related to a decision, reasons and recommendation promulgated by the National College for Teaching and Leadership (“NCTL”), and a Prohibition Order made against Mr Alsaifi by the Secretary of State for Education in February 2016.

[5]The action is brought against two defendants or groups of defendants:(1) Trinity Mirror plc and its Board of Directors (collectively, “Trinity Mirror”); and

(2) Newcastle College Group and its Board of Governors (collectively, “Newcastle College”).

[6]Trinity Mirror is sued for the whole of the First Article on the basis that it was the publisher of Chroniclelive, and responsible in law for the whole publication. Its case, and its evidence, are that it is not the publisher; the newspaper is published by a different company, by the name of NCJ Media Limited. But no reliance is placed on that point for present purposes, and I put it to one side. Nor am I concerned today with any question as to the liability of the Directors.

[7]Newcastle College is sued in respect of certain words in three paragraphs at the end of the First Article which purport to quote its principal, Tony Lewin. Newcastle College is sued on the basis that Mr Lewin did say the things attributed to him and that it, including each of its Governors, is vicariously responsible for the publication of those statements in the First Article. I am not concerned today with adjudicating on those issues, which might perhaps be disputed.

[8]I shall have to identify in more detail later in this judgment the meanings of which Mr Alsaifi complains, but the overall flavour of his complaint will be understood if I indicate that the meanings complained of range from “that the Claimant is a paedophile, sexual predator, risk to children” to “invited a child to lunch”, and that he complains that he was demonised.

[9]Neither Trinity Mirror nor Newcastle College has yet served a Defence to the claim. But the nature and merits of the defences which Trinity Mirror would run if there were a trial are a key component of the first of the two applications that are now before the court. The applications

[10]The first application was filed by Trinity Mirror on 2 May 2017. It seeks final judgment against the claimant on the whole of his claim against Trinity Mirror. Certain bases on which that relief was originally sought have not been pursued at this hearing. The application has in the event been put primarily on the basis that the claimant has no realistic prospect of rebutting a defence of statutory reporting privilege under the 1996 Act, which would be bound to succeed. It is said that the majority of the First Article consisted of a fair and accurate report of a notice issued for the information of the public, recording the decision and reasons of a professional conduct panel of the National College for Teaching and Leadership (“NCTL”). In respect of the remainder of the article, reliance is placed on a contention that the defence of honest opinion would be bound to succeed in respect of some of it, and on the doctrine of Jameel abuse (Jameel v Dow Jones

[2005] 1 QB 946

, CA). For convenience, however, I shall call this “the Summary Judgment Application”.

[11]The second application notice was filed by Mr Alsaifi on 3 May 2017. This application, which I shall call “the Meaning Application” seeks a ruling on meaning pursuant to PD53, that the words complained of are capable of bearing the meanings complained of by Mr Alsaifi, or other meanings defamatory of him. This application relates to the claims against Trinity Mirror and Newcastle College.

[12]Mr John Stables has appeared for the First Defendant, as applicant in respect of the Summary Judgment Application. Mr Alsaifi represents himself as respondent to the Summary Judgment Application and applicant in respect of the Meaning Application. Mr Stables and, for the Second Defendant, Ms Kate Wilson, appear for the respondents to the Meaning Application.

[13]As a litigant in person Mr Alsaifi has pointed out that he lacks legal qualification and that English is not his first language. He has colourfully likened himself to someone who is disabled, and entitled to reasonable adjustments. It is fair to say that he has shown considerable skill and attention to detail in preparing and presenting his case. He does however clearly find it hard to focus effectively on the essential issues in the case, and to confine his evidence and argument accordingly. I have taken his evident difficulties into account as I am accustomed to do when an unrepresented party is before me, and bound to do under CPR 3.1A(2) and (4). The facts

[14]Mr Alsaifi worked as a lecturer at Newcastle College for several periods in and between 2002 and 2013. He first worked there in 2002, then left to undertake teaching work in other organisations. In February 2008, he took up a Sixth Form teacher role at the College as a teacher of mathematics and IT. He then left to complete a Master’s qualification, rejoining the College on 5 August 2013. The NCTL proceedings

[15]The NCTL is an executive agency of the Department for Education. The regime under which it acted in the present case is to be found in the Education Act 2011 and The Teachers’ Disciplinary (England) Regulations 2012 (“the 2012 Regulations”) as amended by The Teachers’ Disciplinary (Amendment) (England) Regulations 2014, which provide the statutory basis and procedures of, and appeal from, a professional conduct panel. The NCTL operates under the 2012 Regulations on behalf of the Secretary of State.

[16]Allegations of misconduct against Mr Alsaifi were examined by the NCTL at a hearing over four days in February 2016 before a three-member panel. The panel was chaired by a teacher panellist, sitting with one other teacher panellist and a lay panellist. The panel was assisted by a legal adviser from Eversheds LLP. Reg.11 of the 2012 Regulations requires that hearings normally be held in public. The hearing in Mr Alsaifi’s case was in public, the panel having ruled against submissions advanced by Mr Alsaifi that it should be held in private.

[17]On or about 29 February 2016 the NCTL’s decision and reasons were promulgated, in a document entitled “Mr Tariq Alsaifi: Professional conduct panel outcome. Panel decision and reasons on behalf of the Secretary of State for Education” (“the Decision Notice”). The Decision Notice also included a decision made on behalf of the Secretary of State to make a Prohibition Notice. The nature of the defences relied on by Trinity Mirror makes it necessary to set out some passages in the Decision Notice word for word. The Decision Notice

[16]Having outlined the general nature of the proceedings, the Decision Notice set out the allegations under investigation as follows:

“B. Allegations The panel considered the allegations set out in the Notice of Proceedings dated 16 December 2015. It was alleged that Mr Alsaifi was guilty of unacceptable professional conduct in that: 1. Whilst employed at Newcastle College, he failed to maintain professional boundaries toward Pupil A in that he: a. Made comments as to the way she looked; b. Sent her one or more emails from his personal email address; c. Sent her one or more emails containing 'kisses'; d. Gave his personal telephone number to her; e. Sent her several follow-up emails in an attempt to encourage a response; f. Invited Pupil A to lunch; g. Put his arm around the back of her chair; h. Made inappropriate physical contact with her by touching her hand; i. Asked Pupil B whether Pupil C was the boyfriend of Pupil A. 2. On one or more occasions he unbuttoned his shirt in a teaching environment to such an extent that he was left in an inappropriate state of undress. 3. His conduct in regard to allegation 1 was sexually motivated.”

It was alleged that Mr Alsaifi was guilty of unacceptable professional conduct in that: b. Sent her one or more emails from his personal email address; e. Sent her several follow-up emails in an attempt to encourage a response; h. Made inappropriate physical contact with her by touching her hand; i. Asked Pupil B whether Pupil C was the boyfriend of Pupil A.

It was alleged that Mr Alsaifi was guilty of unacceptable professional conduct in that:

[18]The decision went on to recite the procedural steps taken and the evidence put before the panel. This section included the following. “Witnesses The panel heard oral evidence from the following on behalf of the National College:• Pupil A

• Pupil B

• Witness A -former business development senior manager and investigating officer at Newcastle College. Mr Alsaifi also gave oral evidence.” The panel heard oral evidence from the following on behalf of the National College: Mr Alsaifi also gave oral evidence.”

The panel heard oral evidence from the following on behalf of the National College:

[19]The Decision Notice next set out the panel’s decision and reasons, with this introduction:

“E. Decision and reasons The panel announced its decision and reasons as follows: …. An allegation was raised in November 2013 that Mr Alsaifi had inappropriately contacted a pupil. These allegations were investigated and Mr Alsaifi shortly resigned thereafter in November 2013 (sic). Findings of fact The panel's findings of fact are as follows: The panel has found the following particulars of the allegations against you proven …. , for these reasons:”

The panel announced its decision and reasons as follows: Findings of fact The panel's findings of fact are as follows:

Findings of fact

[20]The panel proceeded to state that it found that Mr Alsaifi had failed to maintain professional boundaries towards Pupil A in eight of the specific respects alleged under paragraph 1 (those at paragraphs 1(a) to (f), 1(h) and 1(l)), and that this conduct was sexually motivated (allegation 3). The panel found two of the allegations not proven. These were 1(g) (putting an arm round the back of Pupil A’s chair) and 2 (unbuttoned shirt, leaving him in an inappropriate state of undress).

[21]The section on Findings of Fact set out detailed reasons for each of the panel’s findings. These included the following: “ 1. Whilst employed at Newcastle College, you failed to maintain professional boundaries towards Pupil A in that you: a) Made comments as to the way she looked; In his opening statement, the presenting officer submitted that Pupil A was 17 years of age at the time that Mr Alsaifi taught her in his Sage accounting class on the College’s level 2 associate accountancy technician (“AAT”) programme. Mr Alsaifi’s oral evidence was that at the time he taught Pupil A and Pupil B he was not aware of the apprenticeship arrangements whereby students under the age of 18, who were working in industry, would be permitted to attend his classes on a part time basis. Mr Alsaifi believed that all the pupils in his class were adults and he adapted his teaching style to reflect this. In her oral evidence, Pupil A stated that at the time she started at the College she was aged 17. Pupil A recalls telling Mr Alsaifi in a general conversation that took place when she was working at her computer one day. Mr Alsaifi was talking to just Pupil A at the time. Mr Alsaifi submitted that he never asked Pupil A her age. …The panel found this allegation proven on the balance of probabilities b) Sent her one or more emails from your personal email address; ... Mr Alsaifi admitted during the course of the hearing that he sent emails to Pupil A’s personal email address from his personal email address. Taking all of the above into account, and as the panel had seen more than one email included in the bundle sent from Mr Alsaifi’s personal email address to Pupil A, the panel found this allegation proven. c) Sent her one or more emails containing ‘kisses’; The second email from Mr Alsaifi to Pupil A included in the bundle referred to above, included two kisses, i.e two x’s at the end after Mr Alsaifi’s first name. Pupil B’s oral evidence was that generally, tutors were called by their first name at the College. … Pupil A thought that the “kisses” in the email Mr Alsaifi sent to her on 22 October 2013 was odd and not what a teacher should include in an email to a student. She considered it a bit too personal and, “not very professional”. … Pupil A commented further, in her oral evidence, that the presence of the kisses in the second email may have been the actions of a caring tutor who was aware at the time her mother had been through an operation. However, she considered that it was not appropriate for him to put kisses in an email to her. Mr Alsaifi submitted that it is his standard practice to put kisses i.e x’s at the end of his emails to maintain a good working relationship with his learners who he considered as friends. He considered Pupil A a friend with whom he had built up a rapport over approximately 7 weeks of teaching. Mr Alsaifi submitted that this was an indication of, “care” for a friend. … f) Invited Pupil A to lunch; Pupil A’s oral evidence was that she was never at College on a Saturday and it did not seem professionally appropriate for Mr Alsaifi to suggest to her by email that they should meet for lunch at a weekend. … The panel had regard to the email from Mr Alsaifi to Pupil A dated 25 October 2013 in which he asked if Pupil A wanted to go for lunch the next day a Saturday. It was clear that this was an invitation to lunch. Mr Alsaifi later admitted this allegation in the course of his oral evidence. The panel therefore found this allegation proven h) Made inappropriate physical contact with her by touching her hand; Pupil A advised the panel in her evidence that she is left handed. When answering Pupil A’s questions in class, Pupil A stated that Mr Alsaifi generally pointed at the screen. However, on at least one occasion, Mr Alsaifi was on her left hand side and he used his right hand to touch the mouse attached to her computer when her hand was already placed on the mouse. He did not ask politely if he could have the mouse for a minute and Pupil A did not have time to remover her hand before he placed his hand on top of hers. Pupil A also recalls that Mr Alsaifi rubbed his thumb, to the left and right, on top of her hand… Mr Alsaifi denied this allegation … The Panel preferred the oral evidence of Pupil A and Pupil B … 3. Your conduct in regard to allegation 1 was sexually motivated. … Witness A’s oral evidence was that during the investigation interview that he had with Mr Alsaifi, he wanted to ensure that Mr Alsaifi was clear that a relationship with a pupil was not appropriate. He also wanted to clarify Mr Alsaifi’s intention towards Pupil A. By Mr Alsaifi’s describing his desire to commence a boyfriend/girlfriend relationship with Pupil A, it was Witness A’s opinion that Mr Alsaifi wished to develop a sexual relationship with Pupil A and not necessarily just to support and care for a student in a pastoral sense. … The panel considered that a reasonable person would believe that the conduct found proven against Mr Alsaifi, in sending unsolicited email messages to Pupil A which contained kisses and inviting Pupil A out to lunch at the weekend, was sexually motivated behaviour. The panel also concluded that in all the circumstances of this case Mr Alsaifi’s purpose towards Pupil A was sexual.” a) Made comments as to the way she looked; In his opening statement, the presenting officer submitted that Pupil A was 17 years of age at the time that Mr Alsaifi taught her in his Sage accounting class on the College’s level 2 associate accountancy technician (“AAT”) programme. Mr Alsaifi’s oral evidence was that at the time he taught Pupil A and Pupil B he was not aware of the apprenticeship arrangements whereby students under the age of 18, who were working in industry, would be permitted to attend his classes on a part time basis. Mr Alsaifi believed that all the pupils in his class were adults and he adapted his teaching style to reflect this. In her oral evidence, Pupil A stated that at the time she started at the College she was aged 17. Pupil A recalls telling Mr Alsaifi in a general conversation that took place when she was working at her computer one day. Mr Alsaifi was talking to just Pupil A at the time. Mr Alsaifi submitted that he never asked Pupil A her age. …The panel found this allegation proven on the balance of probabilities b) Sent her one or more emails from your personal email address; ... Mr Alsaifi admitted during the course of the hearing that he sent emails to Pupil A’s personal email address from his personal email address. Taking all of the above into account, and as the panel had seen more than one email included in the bundle sent from Mr Alsaifi’s personal email address to Pupil A, the panel found this allegation proven. c) Sent her one or more emails containing ‘kisses’; The second email from Mr Alsaifi to Pupil A included in the bundle referred to above, included two kisses, i.e two x’s at the end after Mr Alsaifi’s first name. Pupil B’s oral evidence was that generally, tutors were called by their first name at the College. … Pupil A thought that the “kisses” in the email Mr Alsaifi sent to her on 22 October 2013 was odd and not what a teacher should include in an email to a student. She considered it a bit too personal and, “not very professional”. … Pupil A commented further, in her oral evidence, that the presence of the kisses in the second email may have been the actions of a caring tutor who was aware at the time her mother had been through an operation. However, she considered that it was not appropriate for him to put kisses in an email to her. Mr Alsaifi submitted that it is his standard practice to put kisses i.e x’s at the end of his emails to maintain a good working relationship with his learners who he considered as friends. He considered Pupil A a friend with whom he had built up a rapport over approximately 7 weeks of teaching. Mr Alsaifi submitted that this was an indication of, “care” for a friend. … f) Invited Pupil A to lunch; Pupil A’s oral evidence was that she was never at College on a Saturday and it did not seem professionally appropriate for Mr Alsaifi to suggest to her by email that they should meet for lunch at a weekend. … The panel had regard to the email from Mr Alsaifi to Pupil A dated 25 October 2013 in which he asked if Pupil A wanted to go for lunch the next day a Saturday. It was clear that this was an invitation to lunch. Mr Alsaifi later admitted this allegation in the course of his oral evidence. The panel therefore found this allegation proven h) Made inappropriate physical contact with her by touching her hand; Pupil A advised the panel in her evidence that she is left handed. When answering Pupil A’s questions in class, Pupil A stated that Mr Alsaifi generally pointed at the screen. However, on at least one occasion, Mr Alsaifi was on her left hand side and he used his right hand to touch the mouse attached to her computer when her hand was already placed on the mouse. He did not ask politely if he could have the mouse for a minute and Pupil A did not have time to remover her hand before he placed his hand on top of hers. Pupil A also recalls that Mr Alsaifi rubbed his thumb, to the left and right, on top of her hand… Mr Alsaifi denied this allegation … The Panel preferred the oral evidence of Pupil A and Pupil B …

[22]The Decision Notice then addressed the question of whether the conduct found proved amounted to unacceptable professional conduct. This section included the following:

“Findings as to unacceptable professional conduct. Having found a number of the allegations to have been proven, the panel has gone on to consider whether the facts of those proven allegations amount to unacceptable professional conduct. … The panel is satisfied that the conduct of Mr Alsaifi fell significantly short of the standard expected of the profession due to Mr Alsaifi having undertaken a course of conduct towards Pupil A which was sexually motivated and also acting in breach of safeguarding practices. …he sought an inappropriate course of email conversation with Pupil A with the intention of forming an inappropriate relationship. Accordingly, the panel is satisfied that Mr Alsaifi is guilty of unacceptable professional conduct.”

Accordingly, the panel is satisfied that Mr Alsaifi is guilty of unacceptable professional conduct.”

[23]Next, the Decision Notice dealt with sanction. Under the heading “Panel’s recommendations to the Secretary of State” it said this:

“Panel’s recommendation to the Secretary of State Given the Panel’s findings in respect of unacceptable professional conduct, it is necessary for the panel to go on to consider whether it would be appropriate to recommend the imposition of a prohibition order by the Secretary of State. … There is a strong public interest consideration in respect of the protection of pupils given the serious findings of Mt Alsaifi’s attempts to form an inappropriate relationship with Pupil A. … The panel considered that…the conduct found against Mr Alsaifi was outside that which could be reasonably tolerated. … The panel is of the view that prohibition is both proportionate and appropriate. The panel has decided that the public interest considerations outweigh the interests of Mr Alsaifi, Undertaking a course of conduct towards pupil A which was sexually motivated was a significant factor in forming that opinion. Accordingly, the panel makes a recommendation to the Secretary of State that a prohibition order should be imposed with immediate effect. The panel went on to consider whether or not it would be appropriate for them to decide to recommend that a review period of the order should be considered. The panel was mindful that the Advice advises that a prohibition order applies for life, but there may be circumstances in any given case that it may make it appropriate to allow a teacher to apply to have the prohibition order reviewed after a specific period of time that may not be less than 2 years. The Advice indicates that there are behaviours that, if proven, would militate against a review period being recommended. One of those behaviours includes serious sexual misconduct …. The panel considered that there was no evidence of serious sexual misconduct in this case. … the panel considered … it would be reasonable in all the circumstances for the panel to recommend a review period. As such, it decided that it would be proportionate for the prohibition order to be recommended with provision for a review period of three years.”

[24]The final section of the Decision Notice was headed “Decision and reasons on behalf of the Secretary of State”. It appeared over the signature of “Decision Maker: Jayne Millions” and above the rubric, “This decision is taken by the decision maker named above on behalf of the Secretary of State.” This section included the following relevant words:

“… The panel has decided that the public interest considerations outweigh the interests of Mr Alsaifi. Undertaking a course of conduct towards a pupil which was sexually motivated was a significant factor in forming that opinion. Taking all the facts into account, I support the recommendation of the panel that Mr Alsaifi be prohibited. This seems to me to be proportionate and appropriate. I have also considered the matter of a review period. I have noted that the panel found that Mr Alsaifi used his professional position to try to influence a pupil to enter into an inappropriate relationship with him. However the panel also found that there was no evidence of serious sexual misconduct. … … For the reasons set out above, I agree with the panel’s decision. This means that Mr Tariq Alsaifi is prohibited from teaching indefinitely and cannot teach in any school, sixth form college, relevant youth accommodation or children’s home in England. Mr Alsaifi has a right of appeal to the Queen’s Bench Division of the High Court within 28 days from the date he is given notice of this order. Decision maker: Jayne Millions Date: 29 February 2016 This decision is taken by the decision maker named above on behalf of the Secretary of State.”

Decision maker: Jayne Millions Date: 29 February 2016 The First Article – version 1

Date: 29 February 2016

[25]The First Article first appeared on 15 March 2016. I set it out in full, with paragraph numbering added by me for ease of reference later in this judgment. The bold text indicates the words complained of by Mr Alsaifi against Trinity Mirror. Words that are in bold and underlined are those complained of against Newcastle College. “Newcastle College Teacher banned from profession after making ‘sexual’ advances on a pupil By Dan O’Donoghue 18.30pm 15 March 2016. [1] Teacher Tariq Alsaifi was banned from the classroom indefinitely after a panel concluded he was inappropriate towards the girl. [2] A teacher who made “sexual” advances on a pupil has been banned from the profession indefinitely. [3] Tariq Alsaifi was working at Newcastle College in 2013 when a number of accusations emerged around his behaviour towards one particular pupil. [4] Mr Alsaifi, 41, was observed holding and rubbing the hand of a 17-year old pupil – who he also invited to lunch and sent severalemails from his personal account to. [5] A disciplinary panel has concluded that, while there was no evidence of “serious sexual misconduct”, the teacher’s actions were wholly inappropriate and has banned him from the classroom. [6] During the course of the investigation the panel heard from the 17-year old, known as pupil A, along with her friend and a staff member from the school. [7] Pupil A thought that “kisses” in the email Mr Alsaifi sent to her on October 22, 2013 was odd and not what a teacher should includeinan email to a student. She considered it a bit too personal and “not very professional” [8] Pupil A advised the panel in her evidence that she is left handed. When answering Pupil A’s questions in class, Pupil A stated that Mr Alsaifi generally pointed at her screen. However, on at least one occasion, Mr Alsaifi was on her left hand side and he used his right hand to move the mouse attached to her computer when her hand was already placed upon the mouse. [9] He did not ask if he could have the mouse for a minute and Pupil A did not have time to remove her hand before he placed his hand on top of hers. [10] Pupil A also recalls that Mr Alsaifi rubbed his thumb to the left and right, on top of her hand. [11] In a report to the Secretary of State for Education, Nicky Morgan, the panel concluded:

“The panel considered that a reasonable person would believe that the conduct found proven against Mr Alsaifi, in sending unsolicited email messages to Pupil A which contained kisses and inviting Pupil A out to lunch at the weekend, was sexually motivated behaviour. [12] “The panel also concluded that in all the circumstances of this case, Mr Alsaifi’s purpose towards Pupil A was sexual.” [13] Ms Morgan said: “Taking all the facts into account, I support the recommendation of the panel that Mr Alsaifi be prohibited.” [14] Tony Lewin, principal at Newcastle College, said: “Safeguardingour students is our top priority and we take all student complaints extremely seriously. [15] “In the case of Mr Alsaifi, a part-time lecturer, three years ago, we acted upon the situation the same day, quicklyandeffectively leading to his immediate suspension and subsequent dismissal.” [16] “We are pleasedwith the outcome of the hearing”” [16] “We are pleasedwith the outcome of the hearing””

[26]This first version of the article was online from 15 March 2016 to 15 July 2016. All of the words set out above continued to appear in the second version which appeared from that date, and in the third version, details of which are given below. Mr Alsaifi’s appeal

[27]Mr Alsaifi pursued an appeal against the making of an indefinite Prohibition Order. He argued that the decision-maker had acted outside her powers, that there were flaws in the decision-making process of the NCTL, and that the NCTL’s decision was clearly wrong.

[28]On 20 June 2016 Mr Alsaifi’s appeal was heard by Andrews J DBE, who reserved judgment. Her judgment (“The Appeal Judgment”) was handed down on 24 June 2016:

[2016] EWHC 1519 (Admin)

. The Judge allowed the appeal, on the basis that the NCTL had no jurisdiction to investigate or recommend any sanction in respect of Mr Alsaifi, because he was not at any material time teaching in any of the institutions covered by the legislation. Accordingly, the Secretary of State had no power to accept the recommendation and make a Prohibition Order. That decision was a nullity. Although all Mr Alsaifi’s other grounds were dismissed, the decision to make a Prohibition Order was quashed.

[29]In the process of explaining these conclusions Andrews J gave a detailed account of the factual background, some of which it is helpful to quote: “5. By all accounts the appellant was a particularly well qualified, lively and popular lecturer in subjects that it was difficult for the College to find suitable candidates to teach. However, on 4 November 2013, an allegation was made of inappropriate behaviour by the appellant, then aged 38, towards one of the 12 learners in his Tuesday class on the Sage Accounting course on the College’s level 2 Associate Accountancy Technician (“AAT”) programme, to whom I shall refer as Ms A. She was 17 years old at the time, and was attending the class on a part-time basis under an apprenticeship arrangement with her employer. 6. The initial allegation centred on a series of emails which the appellant had sent to Ms A between 15 and 25 October 2013… 7. Ms Catherine Hassan was the assessor for both Ms A and her best friend Ms B, who was also an apprentice studying in the same class, and a witness before the panel… … on 1 November 2013 Ms Hassan had a conversation with Ms B, and it was she who told Ms Hassan about the emails from the appellant to Ms A, their content, and Ms A’s concern about them. Ms B also said that the appellant spent a lot of time around Ms A in class… 8. Later that day, Ms Hassan spoke directly to Ms A for about an hour, and Ms A expressed her concerns about the emails and about certain aspects of the appellant’s behaviour towards her in class. Ms Hassan notified her superiors. .. … Ms Jackie Rankin, the operations manager to whom Ms Hassan reported these concerns, then spoke to Ms A herself. Ms A told her that she did not feel comfortable at all being in the class with this tutor. On 4 November, Ms Rankin reported the allegations to Ms Barbara King, the Director of Health and Enterprise at the College… 9. The appellant was suspended from work on the same day, pending the outcome of an internal investigation… 10. The appellant was interviewed on 13 November 2013 by Mr Mark Bolton, then the College’s Business Development senior manager, in the presence of the head of HR at the College, Mr Ron Smith. … 15. On 15 November 2013, Ms A and Ms Hassan were each interviewed by Mr Bolton… 16. On 15 November 2013, Mr Bolton made an investigation report to Ms King. That report and its attachments, including the emails and the contemporaneous notes of the interviews, formed part of the materials that were relied on before the panel in due course… 18. At the internal disciplinary hearing, which was attended by the appellant, Ms King, Mr Smith and Mr Bolton… Mr Bolton presented the outcome of his investigation, and… Ms King asked the appellant whether he knew the learner’s real age, and he said he had thought that she was 19. He was asked if he would like to present his case, and he again said that he would not wish to comment… 19. After a short adjournment to consider the matter, Ms King stated that she believed the appellant’s actions to be gross misconduct and that she was going to recommend the termination of his employment. That recommendation would be considered by a senior post-holder and that he would have the opportunity to make representations to that post-holder before any final decision was taken. This never happened, because on the following day, 29 November 2013, the appellant tendered his resignation. In the College’s letter of acceptance, sent by Mr Smith on 3 December 2013, the appellant was advised that in accordance with its Safeguarding duties, the College would be referring his case to the Disclosure and Barring Service (“DBS”). 20….On 28 April 2015 the DBS wrote to the appellant and said it had decided that it was not appropriate to include him in the Children’s Barred List or the Adults Barred List. It explained that this meant that he would not be prevented from carrying out regulated activity with vulnerable children or adults, but “other bodies may place other restrictions upon you and our decision does not overrule these”. 21. Having made that decision, the DBS passed on the College’s referral to the NCTL, which received the papers on 11 May 2015. That is the date on which, for the purposes of s.141B of the 2002 Act, the allegations of unacceptable professional conduct were formally referred to the Secretary of State, or rather, to the NCTL acting on her behalf. There is no evidence that the appellant was teaching anywhere, or engaged to teach anywhere, on that date. … 23. The NCTL wrote to the appellant on 1 June 2015 informing him that it had considered the referral and decided that a formal investigation should be started in relation to allegations that he had: i) Inappropriately made physical contact with a female student in his care; ii) Inappropriately breached his professional boundaries when he gave prolonged unwanted attention to Ms A in class; iii) Inappropriately given his personal contact details to Ms A and invited her to lunch, and that in doing 1, 2 and 3, his actions were sexually motivated… … 32. On 16 December 2015 a letter was sent by the NCTL to the appellant to notify him that his case would be heard by a professional conduct panel on 22 to 25 February 2016. The letter set out the allegations that the panel would hear. ” i) Inappropriately made physical contact with a female student in his care; ii) Inappropriately breached his professional boundaries when he gave prolonged unwanted attention to Ms A in class; iii) Inappropriately given his personal contact details to Ms A and invited her to lunch,

[30]Explaining her main conclusions,

the Judge said this:

“2. The appeal raises important questions concerning the interpretation and effect of s.141A and s.141B of the Education Act 2002 (“the 2002 Act”) read in conjunction with the Teachers’ Disciplinary (England) Regulations, 2012 SI No.560 (“the Regulations”). 3. The key issue for determination is whether the Secretary of State (or the NCTL acting on her behalf) has any power to investigate an allegation of unacceptable professional conduct, or to take any consequential action, including making a Prohibition Order, where the person under investigation was not a person employed or engaged to carry out teaching work at any of the types of institution defined in s.141A either at the time of the alleged unprofessional conduct, or at the time of the referral of the allegation to the NCTL, but serendipitously happened to be so engaged at the time of the hearing before the panel, and at the time when the Prohibition Order was actually made. For reasons that I shall explain, I have reached the conclusion that the Secretary of State had no such power, and consequently the Order made in the present case is a nullity and must be set aside. … 75. In summary, Parliament has stipulated in s.141A and 141B of the 2002 Act that the NCTL’s regulatory remit extends only to those who are teachers, as therein defined, at the time of the conduct complained of (or, possibly, when that conduct came to light) or at the time when the allegations of misconduct were referred to the Secretary of State or the NCTL acting on her behalf.”

[31]As to Mr Alsaifi’s other grounds, Andrews J said as follows:- “42. I have seen and read the transcripts of the substantive hearing before the panel from which it is apparent that the appellant was given a fair opportunity to put his case and to cross-examine all three witnesses, and that the special measures adopted in respect of Ms A did not create any difficulties in that regard. As an unrepresented party he was allowed considerable latitude in terms of the questioning. At the hearing of this appeal he very frankly accepted that he was able to ask Ms A all the questions that he wished, albeit that they were put to her by the panel rather than by him directly. The panel dismissed allegation 1(g) (the arm round the back of the chair) and allegation 2, (the inappropriately unbuttoned shirt) but, after directing itself appropriately with the assistance of advice from its legal adviser, it found all others proved to the requisite standard (the balance of probabilities). It then carefully considered whether this was an appropriate case for a Prohibition Order, taking into account the positive references relied upon by the appellant, and reached a conclusion that it was. That conclusion was reasonably open to it given the factual findings it had made, especially in the light of what it described as the appellant’s total lack of insight into his behaviour. The appellant challenges the findings as being clearly wrong. … PROCEDURAL UNFAIRNESS 78. The appellant complained of the following matters: i) The late change in the allegations that he had to face; ii) The decision to treat Ms A as a vulnerable witness and afford her special measures; iii) The fact that he did not have an opportunity to actively participate in the Case Management Hearing despite telling the NCTL that he wished to do so and giving them a range of dates and times on which he could make himself available for a telephone hearing; iv) The failure by the NCTL to call the witnesses he wanted to call. v) The fact that the NCTL’s decision to investigate and put the matter before a panel was made on the basis of an incomplete version of Mr Bolton’s internal report and the annexures to it. vi) Being afforded insufficient time to make his final submissions at the end of the hearing. The appellant did not actively pursue this final complaint at the hearing of the appeal: this is not surprising because, having read the transcripts it is plain that he was perfectly able to put his case about the alleged inconsistencies in Ms A’s and Ms B’s evidence in order to demonstrate that they were making things up. He also had a fair opportunity to criticise the evidence given by Mr Bolton. 79. I am also satisfied that the appellant suffered no procedural unfairness in any other respect. … 82. Regardless of how the allegations were particularised, the key question for the panel to determine was why the appellant sent those emails, particularly those on 22, 23 and 25 October. His defence was that he was acting out of pastoral concern and nothing more. His alleged behaviour towards Ms A in the course of the lessons, particularly in the lesson on 22 October 2013, was something that would potentially assist in answering the question, and that was going to depend on an assessment of the credibility of Ms A’s and Ms B’s account. Much was also going to depend on the panel’s assessment of the appellant himself as a witness. … I find that there was no procedural unfairness to the appellant as he alleges on any of the grounds that he has raised. CREDIBILITY OF THE WITNESSES92. The appellant submitted that it was not open to the panel to find that the evidence of Ms A and Ms B (and, to the extent that he disputed it, that of Mr Bolton) was credible. That is not an easy allegation to make good on appeal, even an appeal by way of rehearing, as this appeal is: especially where the tribunal of first instance has had the advantage of seeing and hearing the witnesses over three days of evidence… A mere disagreement by the appellant with the panel’s assessment of credibility will not suffice.

93. The appellant essentially made the same points to this Court as he made to the panel; …

94. …the fact that this panel conscientiously considered the evidence and weighed it carefully is demonstrated by the fact that it rejected two of the allegations against the appellant, one on the basis of its inconsistencies. … …

95. I have carefully considered all the points raised by the appellant in his skeleton argument and drawn to my attention in his oral submissions, and read and re-read all the parts of the transcript that he relied on…other matters that might adversely affect the credibility of the witnesses. However, this is not a case in which there is anything obvious to indicate that any of these witnesses must be lying; on the contrary, the two learners readily agreed to points that might be helpful to the defence …

96. My overall impression is that the evidence did not support a picture of two young women making up a story to get a lecturer into trouble, or support the appellant’s suggestion that Ms B put Ms A up to making a false complaint against him –…conduct panel. If anything, the inconsistencies in the two young women’s evidence support its truthfulness, because someone making up a story would tend to exaggerate and would not be willing to admit that she might be mistaken about something. In any event, the panel was in the best position to judge their credibility.

97. The panel was entitled to prefer Mr Bolton’s evidence regarding the accuracy of his notes of the interview with the appellant…“hypothetical” exchange. In any event, even if the panel had accepted the appellant’s version of the “hypothetical” question Mr Bolton asked him, it is unlikely to have improved his position; his own account of the question and answer he gave to it indicated that he would have been quite comfortable with the idea of the relationship between himself and Ms A developing into a romantic one, and that in itself is indicative of the lack of insight into his behaviour which the panel unsurprisingly found. MISCELLANEOUS GROUNDS 99. I have also considered the complaints made in the appellant’s written grounds of an alleged lack of impartiality and discrimination, although the appellant did not address them in his oral argument at the hearing of the appeal. I am satisfied that there is no merit in any of the complaints made by the appellant in this regard, which are answered comprehensively in paragraphs 68 to 73 of Ms Walker’s skeleton argument. ” PROCEDURAL UNFAIRNESS ii) The decision to treat Ms A as a vulnerable witness and afford her special measures; iii) The fact that he did not have an opportunity to actively participate in the Case Management Hearing despite telling the NCTL that he wished to do so and giving them a range of dates and times on which he could make himself available for a telephone hearing; iv) The failure by the NCTL to call the witnesses he wanted to call. v) The fact that the NCTL’s decision to investigate and put the matter before a panel was made on the basis of an incomplete version of Mr Bolton’s internal report and the annexures to it. vi) Being afforded insufficient time to make his final submissions at the end of the hearing. CREDIBILITY OF THE WITNESSES

MISCELLANEOUS GROUNDS

[32]Andrews J summed up her conclusions at paragraph [100] of the Appeal Judgment:

“For these reasons I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the NCTL to carry out the investigation and to the power of the Secretary of State to make the Order. However, he only needs to succeed on one ground in order to succeed in his appeal. As the Secretary of State had no power to investigate the matter, the fact that process adopted was conspicuously fair and the fact that if the NCTL had been empowered to refer the matter to the panel, its findings would have been unimpeachable, are of no consequence. The proceedings were a nullity; the panel had no power make any findings about the appellant’s conduct, or to recommend a Prohibition Order in this case, and the Secretary of State had no power to make one. Therefore this appeal is allowed and the Prohibition Order will be set aside.”

[33]The Judge was however highly critical of the way the Secretary of State had conducted the appeal. One of her concerns was that Counsel for the Secretary of State had lodged her skeleton argument as late as 4.30pm on the day before the hearing of the appeal, so that the Judge saw it and the accompanying documents less than an hour before the hearing began. The skeleton raised points about another recent decision, Zebaida v Secretary of State for Education

[2016] EWHC 1181 (Admin)

[34]Andrews J considered that the Government Legal Department should have been aware of the authority and known what the Secretary of State’s position was in advance of providing counsel with formal instructions.

The Judge said this at [50]:

“Regardless of the outcome of this appeal, the court’s disapprobation of the Secretary of State’s cavalier attitude to the rules of civil procedure, particularly in a case where the opposing party is representing himself, needs to be marked in a way that will discourage repetition. I will therefore direct that the Secretary of State shall bear her own costs of the appeal to this Court in any event, irrespective of the outcome of any further appeal.”

The Second Article

[35]On 6 July 2016 Chroniclelive published a further article (“the Second Article”) reporting on the Appeal Judgment in the following terms:

“Ex-Newcastle College lecturer who made 'sexual' advances on student allowed back in the classroom [1] The 'cavalier' actions of the Secretary of State for Education have allowed the former Newcastle College tutor to successfully appeal his ban [2] A lecturer who made "sexual" advances on a pupil has had a lifetime teaching ban overturned - on a legal technicality. [3] Tariq Alsaifi was suspended from Newcastle College in 2013 when a number of accusations emerged around his behaviour towards a particular pupil. [4] Alsaifi, 41, was observed holding and rubbing the hand of a teenage student - who he also invited to lunch and sent several emails to from his personal account. [5] The actions left the teen "upset'' and feeling uncomfortable at being in the same room as Alsaifi, who was 38 at the time. [6] A disciplinary panel concluded earlier this year that, while there was no evidence of "serious sexual misconduct", the teacher's actions were wholly inappropriate and banned him from the classroom. [7] However, the decision has now been quashed on appeal. [8] A High Court Judge ruled that under current legislation the victim could not be classed as a pupil, as she only studied part time. [9] Therefore the panel had no jurisdiction to review the case or make any decision In the first place. [10] The Honourable Mrs Justice Andrews DBE accepted the panel's findings in relation to Alsaifi's conduct, but ruled his ban should be nullified. [11] Justice Andrews said: "I am satisfied that there is no substance in any of the grounds of appeal raised by the appellant apart from the legal point he has taken objecting to the power of the National College for Teaching and Leadership (NCTL) to carry out the investigation and to the power of the Secretary of State to make the order. [12] "He only needs to succeed on one ground in order to succeed in his appeal. As the Secretary of State had no power to investigate the matter, the fact that process adopted was conspicuously fair and the fact that if the NCTL had been empowered to refer the matter to the panel, its findings would have been unimpeachable, are of no consequence. [13] "The proceedings were a nullity; the panel had no power make any findings about the appellant's conduct, or to recommend a Prohibition Order in this case, and the Secretary of State had no power to make one." [14] Justice Andrews reserved particular criticism for the Secretary of State who she said had behaved in a "cavalier'' way. [15] Justice Andrews said: “The court’s disapprobation of the Secretary of State’s cavalier attitude to the rules of civil procedure, particularly in a case where the opposing party is representing himself, needs to be marked in a way that will discourage repetition. I will therefore direct that the Secretary of State shall bear her own costs of the appeal to this Court in any event, irrespective of the outcome of any further appeal” [16] An NCTL spokesperson said: “We are disappointed with the High Court’s judgment. Nothing is more important than the safety and welfare of children and that is why we insist on the highest possible standards of personal and professional conduct from all teachers and school staff. [17] “We are confident that the policy and procedures in place to regulate the teaching profession are robust and ensure the just and efficient handling of all cases of teacher misconduct. Each case referred to a Professional Conduct Panel is considered in line with the legislation and supporting advice and the circumstances surrounding each individual case.”

[36]Mr Alsaifi has made written complaint about the Second Article, but he has not begun proceedings in respect of it. I am not directly concerned with that complaint, in the sense that no claim or application in respect of the Second Article is before the Court. The fact and content of the Second Article do however need to be brought into account when considering the issues raised by the Meaning Application and the Summary Judgment Application. The First Article, versions 2 and 3

[37]On 13 July 2016 Mr Alsaifi made contact with Chroniclelive to raise complaint about the First Article. On 15 July 2016 Chroniclelive created and from then to 14 December 2016 it published a second version of the First Article, amended by adding a “blob” at the end. Mr Alsaifi complains of this version of the article also. The blob said as follows (again, the paragraph numbering is mine and the bold text indicates the words complained of by Mr Alsaifi):- “[17]• Since the publication of this article, Mr Alsaifi has successfully appealed his ban. A second article was published, which can be found here.” The underlined word “here” indicates a hyperlink to the Second Article.

• Since the publication of this article, Mr Alsaifi has successfully appealed his ban. A second article was published, which can be found here.”

[38]Mr Alsaifi complains also of a third version of the First Article, which came into existence on or about 14 December 2016, when Chroniclelive added a second “blob” as follows (again, I have added the paragraph numbering and the bold text indicates which words are complained of):- “[18]• December 14, 2016 note: Newcastle College has asked us to clarify that Mr Alsaifi was not dismissed but left of his own accord.”

• December 14, 2016 note: Newcastle College has asked us to clarify that Mr Alsaifi was not dismissed but left of his own accord.” The Meaning Application What’s the point?

[39]The procedure invoked by Mr Alsaifi is provided for by PD53 para 4.1. As I explained in the Amunwa Judgment at [39]-[40] the procedure was introduced some 22 years ago, when defamation cases were ordinarily tried by jury. It was useful then but is largely if not entirely a dead letter today. There was some understandable suggestion that the procedure would be pointless and wasteful in this case. I have however been persuaded, principally by Ms Wilson, that it would be best to rule on this application. The parties are present and have prepared to deal with the matter. As is common, the oral argument has been concise, being concluded in less than half an hour. To decline to deal with the matter might result in wasted costs, and an argument about who should pay them. Having reached that conclusion I think it convenient to address this application first, even though it came second in time. The Particulars of Claim

[40]The Particulars of Claim do not complain of the whole of the First Article. Instead they set out the words complained of by extracting from the article as a whole individual words, or pairs of words, or short phrases, and presenting these as the offending statements. Thus, the words complained of against Trinity Mirror are those highlighted in bold at [25], [37] and [38] above, and only those words. The rest of the article is omitted from the Particulars of Claim. The approach adopted by Mr Alsaifi can be seen in action below, where I quote paragraph 10 of the Particulars.

[41]The meanings complained of against Trinity Mirror are extensive. Paragraph 7 of the Particulars of Claim says this:

“7. In their natural and ordinary meaning, the words complained of meant and were understood to mean that the Claimant was / is: Paedophile, sexual predator, risk to children, has a sexual misconduct within children’s learning settings, risk to adult, has a sexual misconduct within adults’ learning settings, untrustworthy, exploits others for sexual purposes, has safeguarding concerns, has unacceptable professional conduct within children’s learning settings, has unacceptable professional conduct within adult’s learning settings, has inappropriate behaviour, problematize the Claimant, problematize the Claimant’s behaviour, problematize the Claimant’s purposes, problematize the Claimant’s professional conduct, banned from the classroom, banned from entering any classroom within any capacity or role, banned from carrying out regulated activities involving children, banned from carrying out regulated activities involving adults, placed on a children barring list, placed on an adult barring list, a public interest case, has a severe misconduct to the level the former Minster (Ms Nicky Morgan) gave a personal briefing or press statement about, was working at a school of under 16 between Aug-Nov 2013, was working with pupils between Aug-Nov 2013, was working with children between Aug-Nov 2013, was aware of the learner A real age as 17 at the time, invited the learner A to lunch, invited the learner A to lunch verbally, invited a child to lunch, would invite a child out, a member of staff witnessed the Claimant inappropriate conduct, was observed by a member of staff while acting with misconduct, was observed by anyone while acting with misconduct, was prohibited from the teaching profession for indefinite period of time, the alleged story happened within a school (of 11-16+ years old range), demonise the claimant.”

[42]The Particulars of Claim go on in paragraph 8 to complain of innuendo meanings, as follows:

“8. Further and/or alternatively, by way of innuendo the words complained of meant and were understood to mean that the Claimant was / is: all meanings in paragraph 7 above are repeated, abusive, sexually abusive, use force to obtain sexual contact, physically forceful person, potential rapist, potential criminal, left his work without resigning, left his work and run away, left his work in a shame and run away.”

[43]Paragraph 8 explains that the claimant “will rely in particular on the extraneous facts and matters” which follow under the heading “Particulars of Innuendo (First Defendant)”. There are twenty paragraphs of extraneous facts and matters. They include such matters as these:

“8.2 Alsaifi v Secretary of State for Education [2016] EWHC 1519, (the “Judgment”) dated 24th of June 2016 did set aside the “Prohibition Order”, and made it clear that the secretary of State for Education acted outside its jurisdiction and should not investigated the case from the start. The “Judgment” made it clear that the Claimant was a “lecturer” at the time, not a teacher, and Ms A was NOT a “pupil”

. That judgment squashed the “Prohibition Order” and made its findings baseless… 8.3 At all material times, there is no word of “ban” or “banned” within the squashed “Prohibition Order” or any other official paper by any authoritarian agency or regulator. The first Defendant knew that the Claimant received a “Prohibition Order” from the “teaching” profession only… 8.5 At all material times, there are no words of: “making sexual advances”, “sexual advances”, “girl”, “school”, “staff member from the school”… 8.8 The “Article” never mentioned or reported the reason for the squashed “Prohibition Order”, which was;… “unacceptable professional conduct.”…

[44]Paragraph 10 of the Particulars of Claim identifies the words complained of against Newcastle College, as follows:

“10. Within the same “Article”, at the same link in the paragraph 4 above, the second Defendant gave a briefing or press statement, which was published by the first Defendant and continue to publish, the briefing or press statement which includes the following words which are defamatory of the Claimant: “Safeguard-ing”; “part-time”; “acted upon the situation the same day”; “quickly”; “effectively”; “immediate suspension”; “subsequent dismissal”; “pleased”.”

[45]The meanings attributed to these words are similar to those complained of against Trinity Mirror. In paragraph 11 of the Particulars of Claim Mr Alsaifi pleads the following natural and ordinary meanings: “11…that the Claimant was / is: Paedophile, sexual predator, risk to children, has a sexual misconduct within children’s learning settings, risk to adult, has a sexual misconduct within adults’ learning settings, untrustworthy, exploits others for sexual purposes, has safeguarding concerns, has unacceptable professional conduct within children’s learning settings, has unacceptable professional conduct within adult’s learning settings, has inappropriate behaviour, problematize the Claimant, problematize the Claimant’s behaviour, problematize the Claimant’s purposes, problematize the Claimant’s professional conduct, has a very serious misconduct to the level that NCG had to act quickly and effectively to stop such misconduct, part-time lecturer, been immediately suspended, has been dismissed from his work, has been terminated from his work, there was a general pleased feelings among the students or/and staff regarding the Claimant’s Prohibition Order or/and regarding the Claimant’s leaving the work in 2013, deserved the “Prohibition Order”, there was a waiting for the “Prohibition Order”, the “Prohibition Order” was a great news.

[46]Paragraph 12 of the Particulars of Claim pleads innuendo meanings, adopting a similar approach to that taken in paragraph 8. The innuendo meanings are:

“… that the Claimant was / is: all meanings in paragraph 11 above are repeated, abusive, sexually abusive, potential rapist, potential criminal, left his work without resigning, left his work and run away, left his work in a shame and run away, the people of Newcastle and / or North East are pleased for the “Prohibition Order”, the public of UK are pleased for the “Prohibition Order”, the teachers communities within the North East and / or UK are pleased for the “Prohibition Order”, there is a single person within the North East or UK who was / is pleased for the “Prohibition Order”.”

[47]The “Particulars of Innuendo (by Second Defendant)” which are relied on for this purpose run to seven paragraphs. They include such matters as the following:

“12.1 The second Defendant representative, Mr Tony Lewin… and never witnessed the alleged story back in November 2013, neither met the Claimant in any capacity. … 12.3 The Claimant seen learner A for the last time within the second Defendant’s premises on 22nd of October 2013 at 3:50pm. She left with no concerns at all. 12.4 The suspension was not immediate; it was on 4th of November 2013 close to 5pm… 12.6 The Claimant resigned not dismissed …”

Pleading issues

[48]The manner in which Mr Alsaifi has chosen to set out the words complained of is unorthodox, and unhelpful. It is always important for a claimant to focus on the particular words and phrases that justify the claim; but the court will always have to consider the context in which those words appeared. It tends to confuse and obstruct the process of adjudication if the claimant picks out individual words or phrases for complaint and presents them shorn of all context. A better way to approach the matter is to set out all the parts of the article in which the offending words appear and to highlight those words, in their context. If the matter were properly before the court, there would be a strong case for requiring a further and better pleading by Mr Alsaifi.

[49]Mr Alsaifi’s approach to pleading defamatory meanings or imputations is also most unsatisfactory. A claimant is required to set out the defamatory meanings which he attributes to the words complained of. These may be the natural and ordinary meaning(s) that any ordinary reasonable reader would take from the words; or they may be true innuendo meanings, which would only be taken from the words by a person with knowledge of particular facts, not contained in the offending statement, or matters of general knowledge. The process is governed by PD53 para 2.3. In either case, it is necessary for the pleading to be concise and clear. Mr Alsaifi has at best complied with the letter of that paragraph. Whether or not he has done that, the way he has gone about it is obstructive and unhelpful, and contrary to principle. I explained the position in a little more detail in the Amunwa Judgment at [49]. It is unnecessary to repeat it here. As I said in that case, however, I do have sufficient material before me to decide the issue, and it would be wasteful not to do so. Procedural context

[50]The power I am asked to exercise is this (PD 53 para 4.1):

“At any time the court may decide— (1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case; (2) whether the statement is capable of being defamatory of the claimant; (3) whether the statement is capable of bearing any other meaning defamatory of the claimant.”

[51]Mr Alsaifi, “legally disabled” as he put it, quite properly invited me to assist him by identifying a defamatory meaning which the words complained of are capable of bearing, even if it differed from any that he himself had identified. Principles as to meaning

[52]It is best to get the innuendo meanings out of the way first of all. Both Counsel have submitted, quite rightly, that the pleading is misconceived to the extent that it advances any true innuendo meaning. The “extraneous facts and matters” relied on are indeed extraneous, but none of them are “innuendo facts” in the proper sense of that term. None of them are facts that would or could lead a reader to place a special defamatory meaning on the words complained of. I agree. The position is as it was in the Amunwa case: see paragraph [50] of the Amunwa Judgment. In this case as in that one, I shall treat the pleaded case as one concerning natural and ordinary meanings. The particulars of innuendo are most sensibly viewed as setting out Mr Alsaifi’s case on other issues raised in the action, including fairness and accuracy and malice.

[53]I repeat what I said at paragraph [42] of the Amunwa Judgment. “The principles for determining the actual meaning of words were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd

[2008] EWCA Civ 130

at [14], where he identified the following:

“(1) The governing principle is reasonableness (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question.” “(1) The governing principle is reasonableness (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any ‘bane and antidote taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question.”

[54]In this case, Mr Stables has emphasised principles(1) and

(2) and in particular the fact that the reasonable reader does not select a bad meaning over others. For his part, Mr Alsaifi has stressed the room for loose thinking, and reading between the lines that forms part of principle (2). As in the Amunwa Judgment, I would also highlight principle (3). The court should strive to read the words in the way the ordinary reader would have done, which is likely to be once only; and it should have regard to the impression made upon it by the statement complained of: see Charman v Orion Publishing Group Ltd

[2005] EWHC 2187 (QB)

[11] and Armstrong v Times Newspapers Ltd

[2006] EWHC 1616 (QB)

[31], (both Gray J).

[55]Further relevant points of principle were set out in the Amunwa Judgment at paragraphs [44]-[48] 44 … the “repetition rule” needs also to be borne in mind. This is one of the cardinal rules of interpretation in this context, which states that “reporting someone else’s libellous statements is just as bad as making the statement directly” and therefore “for the purpose of the law of libel a hearsay statement is the same as a direct statement”: Lewis v Daily Telegraph

[1964] AC 234

, 260 (Lord Reid) 284 (Lord Diplock). See Gatley at 11.18 for other formulations of the rule. This can be viewed as an aspect of principle (1) and/or (2), it matters not. 45. These principles are of course relevant to a ruling on capability, but in that context I remind myself the Court is not deciding what meaning a reasonable reader would take from the words; it is deciding what the reader could take them to mean. The approach was set out by Eady J in Gillick v Brook Advisory Centres, in a passage described by Lord Phillips M.R. on appeal (

[2001] EWCA Civ 1263

[7]) as an “impeccable synthesis” of the authorities:

“The proper role for the judge when adjudicating a question of this kind is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his or her own judgment in the light of the principles laid down in the authorities …. If the judge decides that any pleaded meaning falls outside the permissible range, then it will be his duty to rule accordingly. In deciding whether words are capable of conveying a defamatory meaning, the court should reject those meanings which can only emerge as the produce of some strained or forced or utterly unreasonable interpretation. The purpose of the new rule is to enable the court to fix in advance the ground rules and permissible meanings, which are of cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the claimant's reputation but also for the purpose of evaluating any defences raised, in particular, justification and fair comment.” 46. It is helpful in this context to recall two further principles identified by Sir Anthony Clarke MR in Jeynes [14]: “(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which “can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation”. (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.”” 47.This jurisdiction is to be exercised cautiously. It has been described as an exercise in generosity not parsimony, the purpose of which is to “pre-empt perversity” on the part of the jury. Several of the authorities to this effect, which are numerous, are collected in Al Alaoui [v Elaph Publishing Ltd [2017] EWCA Civ 29 [2017] EMLR 13] at [28]-[30]. See also Gatley on Libel and Slander 12th ed at 30.7 and the further cases there cited. 48. The common law test for whether words are defamatory was examined and re-stated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB) [2011] 1 WLR 1985. The test is whether the publication substantially affects in an adverse manner the attitude of other people towards the claimant, or has a tendency to do so.” “The proper role for the judge when adjudicating a question of this kind is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his or her own judgment in the light of the principles laid down in the authorities …. If the judge decides that any pleaded meaning falls outside the permissible range, then it will be his duty to rule accordingly. In deciding whether words are capable of conveying a defamatory meaning, the court should reject those meanings which can only emerge as the produce of some strained or forced or utterly unreasonable interpretation. The purpose of the new rule is to enable the court to fix in advance the ground rules and permissible meanings, which are of cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the claimant's reputation but also for the purpose of evaluating any defences raised, in particular, justification and fair comment.” “(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which “can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation”. (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.””

Application of principles: claim against Trinity Mirror

[56]The words complained of against Trinity Mirror are undoubtedly capable of bearing defamatory meanings about Mr Alsaifi. No other conclusion could be reached, without ignoring the repetition rule. But Mr Alsaifi’s pleaded case on meaning is extravagant and unreasonable. Most of the meanings he attributes to the words of which he complains are impossible; no reasonable reader could take such meanings from the First Article. It would be quite impossible for a court to find that the reasonable reader would interpret that article as conveying all these meanings. That would be inconsistent with the single meaning rule (see the Amunwa Judgment [49]). A case on meaning may be pleaded in the alternative, but the need to manage cases in accordance with the overriding objective means that a litigant must keep within reasonable bounds in advancing alternatives. Anything else tends to obstruct the just disposal of the case. Mr Alsaifi has failed to comply with these imperatives. At best, Mr Alsaifi might be allowed to present a half dozen alternatives for consideration at trial. Looking at the long list of meanings pleaded by him, to see if I can make such a selection I see little if anything that I would regard as a natural and ordinary meaning which the words are capable of conveying.

[57]To read them as implying that Mr Alsaifi is a “paedophile”, for instance, would be a strained, forced and utterly unreasonable interpretation. To present them as depicting him as a “sexual predator” involves a rhetorical flourish that goes well beyond the natural and ordinary meaning of the words used. Meanings to the effect that the words meant “problematize the claimant … [or his] behaviour … purposes … [or] professional conduct” are not natural and ordinary meanings. They are descriptions of what the words are alleged to have done, using obscure and technical terminology, not ordinary everyday language. In short, the statement of case as it stands is over-complex and unreasonable and requires radical re-casting if it is to present a reasonable case.

[58]Accepting Mr Alsaifi’s request to make a ruling on meaning even if I find against him on his own meanings, I find that the first version of the First Article is capable of bearing defamatory meanings about him to the following effect: that in his capacity as the teacher of a 17 year old girl he behaved inappropriately towards her by making sexual advances; that these involved holding and rubbing her hand, inviting her to lunch, and sending her several emails from his personal account, one of which included “kisses”, which was odd, and unprofessional; his conduct was sexually motivated, and his purposes were sexual; he thereby conducted himself in a way that merited his immediate suspension, subsequent dismissal, and ultimately, his indefinite prohibition from teaching; and that this last outcome was a pleasing and satisfactory one, because it was appropriate.

[59]I find, albeit with some hesitation, that the second and third versions of the First Article are also capable of bearing defamatory meanings to this effect. There is an interesting issue lurking here. Looking only at the words of the First Article itself, it is arguable that the addition of the words added on 15 July would be to moderate the defamatory impact of the article as a whole. To say that an appeal has succeeded may tend to undermine the impact of a report of the first instance findings. But the added words made reference to the Second Article and provided a link to it. It is at least arguable that the Second Article is thus so closely connected as to become part of the offending publication or at least the context in which the ordinary reasonable reader would interpret the First Article: see Dee v Telegraph Media Group Ltd

[2010] EWHC 924 (QB)

[2010] EMLR 20 [29] (Sharp J), Monroe v Hopkins

[2017] EWHC 433 (QB)

[2017] 4 WLR 68

[38]. There was only brief exploration of this issue at the hearing, and it would be inappropriate to do more now than identify it.

[60]As to the December alteration, I do not consider that this modifies the overall meaning which the First Article is capable of conveying. The ordinary reasonable reader might well still think that Mr Alsaifi’s behaviour merited dismissal, but that he “jumped before he was pushed.”

[61]Variants of these meanings may be possible, and it would be open to Mr Alsaifi to seek to reshape the meanings I have identified. But the above seems to me to represent the general parameters of the case on meaning that could reasonably be placed before a trial court on behalf of Mr Alsaifi. There is no application for this purpose at the present stage but, other things being equal, I would be inclined to strike out the whole of the paragraphs setting out the meaning complained of against Trinity Mirror, and to direct that meanings to this effect be substituted. But this is of course subject always to the issue of summary judgment, which I deal with below. Application of principles: claim against Newcastle College

[62]Newcastle College accepts that the words complained of against it are capable of bearing a meaning which is defamatory of Mr Alsaifi at common law. It is argued, however, that the innuendo plea is misconceived and that the words are not capable of bearing the meanings set out in paragraphs 11 or 12 of the Particulars of Claim, “although parts of those pleaded meanings could be capable meanings if extracted from the pleaded meaning”.

[63]I agree with the criticism of the innuendo pleading, for the reasons I have already given. Ms Wilson rightly points out that in those circumstances the extensive evidence put before the court by Mr Alsaifi is irrelevant to his application (though I should say that some of it has some relevance to the Summary Judgment Application). I also agree that the majority of the meanings which Mr Alsaifi has pleaded are outside the range of possible defamatory meanings. It would be perverse for a trial court to conclude, for example that Mr Alsaifi was a risk to young children (i.e. “paedophile”, “risk to children”, “had a sexual misconduct within children’s learning settings”, “has unacceptable professional conduct within children’s learnings settings”) or a “sexual predator”. Ms Wilson is right to submit that those parts of Mr Alsaifi’s meanings that use the word “problematize” are not permissible meanings. Those phrases are not idiomatic English. The words contain nothing to support the phrase “waiting for the Prohibition Order” which is hard to understand as a natural and ordinary defamatory meaning. The description of the claimant as working “part-time” may or may not be inaccurate, but it is not capable of defaming Mr Alsaifi. In my judgment, the right approach to this part of the case is the same as the one I have taken to the claim against Trinity Mirror. It is right to start with a clean sheet.

[64]I ask myself therefore what natural and ordinary defamatory meanings could be conveyed by the words complained of against Newcastle College. Ms Wilson invites me to approach that question by reference only to the final three paragraphs of the First Article (paragraphs [14] to [16]), submitting that her client is not and cannot be held responsible for any other part of that article. The principle on which she relies is included in this passage from Economou v De Freitas

[2016] EWHC 1853 (QB)

[2017] EMLR 4 [17]:

“A media publication will often include some material for which the source bears responsibility and some for which he bears none. … Such additional material is likely to affect the meaning of the publication. The additional material may make things worse, in which case the source cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication. A source or contributor cannot be sued for a defamatory meaning which only arises from part of the media publication to which he has contributed: see Monks v Warwick District Council [2009] EWHC 959 (QB) [12-14] (Sharp J).”

[65]But I am not sure the position here is quite so straightforward, for three reasons. First, I must approach the issue on the basis that Mr Lewin knew and intended that the words complained of against the College would appear in an article on chroniclelive. He clearly must have had some notion of the context in which his statements would appear. There has been no exploration of that issue at this stage. But paragraph [16] of the First Article indicates that Mr Lewin was aware that the published item would include an account of the decision and findings of the NCTL and the Secretary of State. He was entitled to assume that such an account would be a fair and accurate one; the College cannot be held responsible for any inaccuracy or unfair “spin” which the rest of the article contained, if that was not known to it. But I do not think it would be right to examine the three paragraphs in question in blinkers, as if the rest of the article did not exist. Secondly, there is the point I have made above about the potential mitigating impact of the first blob (paragraph [17]). Thirdly, the submission overlooks paragraph [18] which appears to reflect a deliberate contribution by Newcastle College to the third version of the First Article, and one which must (on the face of things) have been made in the knowledge of its then extant version.

[66]Bearing all these points in mind it seems to me that I must hold that the words complained of against Newcastle College are capable in their context of bearing defamatory meanings about Mr Alsaifi to the following effect: that he had misconducted himself by inappropriate behaviour towards a 17 year old pupil in the ways found proved by the NCTL in its Decision Notice; that he had thereby behaved in such a way as to justify his immediate suspension, subsequent dismissal, and ultimate prohibition from teaching; and that this last outcome was a pleasing and satisfactory one. My views as to the impact of the changes made in July and December are the same in this context as they are in relation to the claim against Trinity Mirror. Again, this statement of the scope of the available meanings is not necessarily definitive but sets what I consider to be suitable parameters. The Summary Judgment Application Procedure

[67]The application notice and skeleton argument of Trinity Mirror sought an order striking out the claim pursuant to CPR 3.4(2)(a), but that has not been pressed in oral argument. In the event, the application that has been advanced relies mainly on CPR 24.2. This provides so far as relevant that “The court may give summary judgment against a claimant … on the whole of a claim or on a particular issue if(a) it considers that (i) the claimant has no real prospect of succeeding on the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.”

[68]A claim has a realistic prospect of success if it is one that is more than fanciful. But the case must be more than merely arguable. On the other hand, the test is not whether the claim would probably fail. The requirement is absence of reality. The court should not conduct a mini-trial, and it should bear in mind the possibility that facts and matters might emerge in the course of the litigation that are not apparent at the early stages. But it should not shirk the responsibility of deciding against a claimant if the case is clear. Submissions

[69]In his skeleton argument, Mr Stables placed some reliance on the defence of truth but he has not pressed that at the hearing. Instead he has focused his attention on submissions that Mr Alsaifi has no arguable claim, let alone one that is better than arguable because paragraphs [1] to [13] of the First Article are protected by statutory qualified privilege, and there is no possible argument of malice; and the remainder of the First Article would inevitably be held to be honest opinion, or so trivial that the continued pursuit of a claim in respect of it would amount to an abuse of process. Mr Alsaifi has argued forcefully that the defence of privilege should, or at least might, fail at a trial; he has argued that there is a case of malice that is fit to go forward; and that the claim as a whole is one of real substance and importance.

[70]Giving full weight to Mr Alsaifi’s submissions, and having given independent consideration to all the circumstances, I am driven to agree with all of Mr Stables’ main submissions on this aspect of the case. I add that I can see no good reason, let alone a compelling reason, why this claim should be allowed to go to trial even if, as I find, it would be doomed to fail. It would not only be wasteful but also unfair to let a litigant in person take a hopeless case to trial, with all that involves, when it could be stopped in its tracks at any early stage. Reporting privilege

[71]By s 15 and paragraphs 9 and 11 of Schedule 1 to the 1996 Act the defence of qualified privilege is available in respect of(1) “A fair and accurate copy of, extract from or summary of a notice or other matter issued for the information of the public by or on behalf of— … (b) an authority anywhere in the world performing governmental functions”; (para 9)

(2) “A fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of— … (e) any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.” (para 11).

[72]These privileges are qualified or limited in three respects. One is that the privilege is “subject to explanation or contradiction”: see s 15(2). But that qualification is immaterial on the facts. Secondly, s 15(3) provides that “This section does not apply to the publication to the public, or a section of the public, of matter which is not of public concern and the publication of which is not for the public benefit.” There are circumstances in which this can be important qualification. See, eg, Qadir v Associated Newspapers Ltd

[2012] EWHC 2606 (QB)

[2013] EMLR 15. But, subject to paragraphs [80] ff below, Mr Alsaifi places no reliance on that qualification, and I am satisfied that he has no basis for doing so. The only relevant qualification is the third, which applies to all forms of qualified privilege. By s 15(1) “The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice.” The upshot is that this privilege is available if and to the extent that this part of the First Article was a fair and accurate report of a statement within the ambit of paragraph 9 or paragraph 11, so long as it was not published maliciously.

[73]There is no reason in principle why a report may not fall within more than one of the categories of report or summary, etc, for which privilege is provided in the 1996 Act. In this case, I am inclined to the view that the First Article is a report of public proceedings of a “tribunal” falling within paragraph 11, but I do not need to decide that question. In my judgment the Decision Notice is plainly a notice of the kind covered by paragraph 9. It was issued by the NCTL, for the information of the public. The NCTL performs “governmental functions”: see the summary of the legislative regime, above. The parts of the First Article now under consideration qualify as an “extract” and as a “summary” of the Decision Notice. As to the meaning of “extract” see Qadir (above) at [46]-[49], where Tugendhat J held that it is proper to interpret the word “extract” in “the wider sense of a summary or outline.”

[74]I have also concluded, after careful consideration of the competing arguments, that the extract or summary of the Decision Notice that was contained in the First Article was fair and accurate. Fairness for this purpose means fairness in terms of presentation. In order to be fair and accurate for this purpose, an extract or summary need not be verbatim, or indeed accurate in every detail. It can be selective; and a fair, even if very brief, summary of the proceedings will be privileged. Minor inaccuracies and ‘tweaking’ will not displace privilege. See Cook v Alexander

[1974] 2 QB 279

(CA), Tsikata v Newspaper Publishing [1997] 1 All E.R. 655, 667b CA, Ismail v News Group Newspapers Limited

[2012] EWHC 3056 (QB)

[14] (Eady J). In my judgment, any comparison of the First Article with the Decision Notice leads inescapably to the conclusion that the one contains an extract or summary of the other which is in substance accurate, and fair to Mr Alsaifi, according to these principles. No other conclusion would be open to a reasonable trial judge.

[75]In the course of the hearing before me, Mr Stables was able to identify specific sources within the Decision Notice for all the principal features of the extract or summary contained in the First Article. Substantial parts of the article are verbatim quotation, as will be apparent from what I have said already. Examples are paragraphs [7], [8] and [10] of the First Article, and all the quoted words in paragraphs [11], [12] and [13]. Paragraph [9] of the article is verbatim, save that the word “politely” was omitted, which is of no consequence. Other parts of the article plainly represent fair and reasonable summaries of or glosses on what was said by the NCTL. Paragraph [2] of the article fairly reflected, for instance, the behaviour found proved against Mr Alsaifi and the passage in the Decision Notice that referred to “sexually motivated behaviour” and “Mr Alsaifi’s purpose [being] sexual”. Paragraph [3] accurately reflects the background, as set out in Section E of the Decision Notice ([23] above). Paragraph [4] is a fair and accurate summary of the specific allegations which the Notice said had been proved: see [24] and [25] above. Paragraph [5] of the Article fairly reflects the finding in Mr Alsaifi’s favour, that this was not “serious sexual misconduct”, but also the nature of the ban. To suggest, as Mr Alsaifi has, that the ban was not a “classroom” ban but only a ban from teaching is to split hairs. That submission also overlooks the headline, which speaks of a ban from “the profession”. Paragraph [6] reports the sources of evidence relied on by the panel in a way that is accurate in substance and entirely fair to Mr Alsaifi. His complaint that the Decision Notice does not say that Ms B was a “friend” of Ms B is a point of no substance.

[76]The two points I have mentioned so far are not the whole of Mr Alsaifi’s case. He advances four main arguments against the conclusions I have reached. First, he relies on the principle that privilege may be lost if extraneous material is intermingled with the report, summary, or extract in question, in such a way as to make the whole unfair or inaccurate as an account of the relevant underlying material: Curistan v Times Newspapers Ltd

[2008] EWCA Civ 432

[2009] QB 231

[28] (Arden LJ). There is, in my judgment, no basis on which to conclude or suggest that this qualification applies in the present case. Paragraphs [1]-[13] of the First Article contain no intermingled material. They are solely and exclusively report, extract or summary of the contents of the Decision Notice. The “intermingling” principle is not engaged merely because other material was added at the end of the article. That material is plainly separate and distinct in its nature, and derived from a separate source. No reasonable reader could be confused as to its status.

[77]Mr Alsaifi’s other three main arguments, and my assessment of them, are as follows: (1) The First Article was not a report, or was not fair or accurate, because it omitted to state who made the “prohibition order”, what was its purpose, what was its reason, what was the actual prohibition “period” and other “essential information needed for ‘reporting’ activity.”

[78]These submissions are unsound on the facts, in the light of the principles I have identified above. The overall position was clear to the reader. The Secretary of State had banned Mr Alsaifi from teaching indefinitely, to protect children, because he had been found guilty of inappropriate sexual advances to a 17 year old. Mr Alsaifi’s submission that the finding was one of “unacceptable professional conduct” is a semantic point, of no merit. It does not alter the key facts. The fact that there was a review period did not need to be mentioned out of fairness to Mr Alsaifi, given that the key point of fact was referred to, namely that he had not been guilty of “serious sexual misconduct”. (2) Any privilege was lost by virtue of the quashing of the Prohibition Order by Andrews J.

[79]This argument is bad in law, as Mr Stables points out. Developments that cast doubt on the facts asserted in a privileged report may be relevant to the requirement of public benefit and public concern under s 15(3), or to malice, but they do not (and cannot) undermine the claim of a report to be a fair and accurate extract of the source material: see Tsikata at 667b – 667c. (3) Privilege was lost by failure to report the outcome before Andrews J, namely the quashing of the Prohibition Order.

[80]Qadir indicates that a failure to report such a matter is capable in principle of defeating a defence of qualified privilege, by undermining the public interest in the report or tending to show malice: see in particular [106]-[107]. But the authorities indicate very clearly that both matters must turn on what the publisher knew or, in the case of public interest, ought to have known. “A newspaper may not know what happened subsequently nor may the newspaper be in a position to assess the quality or effect of any later denials or refutations:” Tsikata at 667f – 667g.

[81]Here, it is clear that the publisher was aware of the Appeal Decision by 6 July, when it published the Second Article. That was some 12 days after the Appeal Decision was handed down. But it is before Mr Alsaifi had contacted the publisher. There is no evidence, nor any reason to suppose, that the publisher delayed the publication of that article. By 15 July not only was the Second Article on the same website as the First Article, that article had a further paragraph linking to the Second Article. The ordinary reader of the chroniclelive website was provided with an ample, and fair presentation of the overall position.

[82]There was a relatively brief period in which the First Article was online without any reference or link to the Appeal Judgment. One must ask whether Mr Alsaifi might succeed at trial on the basis that the First Article had ceased at that time to be of public concern, or its publication to be of public benefit, by reason of the Appeal Decision. I do not consider that Mr Alsaifi would have any prospect of success on that point if the matter went to trial.

[83]In my judgment the characterisation of the Appeal Decision in the Second Article was, for journalistic purposes, a fair one; it was success “on a technicality”. The rule of law requires that technicalities of this kind are recognised as important, and that appropriate orders are made. But the point in the present context is a different one. The Appeal Judgment found for Mr Alsaifi on the jurisdiction issue only. It did not acquit him of the conduct which the panel had found proved, nor did it find or declare that the Prohibition Order was unwarranted as a matter of substance. Rather the contrary. The Judge upheld and endorsed the decisions of the panel on the merits. In substance, therefore, so far from vindicating Mr Alsaifi the judgment of Andrews J tended rather to make the matter worse from his perspective.

[84]Mr Alsaifi has sought but wholly failed to persuade me that he might succeed at a trial in defeating a defence of privilege by establishing malice. To make such an allegation good, a claimant must prove that the defendant had a dominant improper motive: see Horrocks v Lowe

[1975] AC 135

and the discussion in Gatley on Libel and Slander 12th edn. paras 17.1 ff. The test is notoriously hard to satisfy in practice. When proved this is usually by establishing the defendant’s knowledge of or reckless indifference as to falsity (Gatley 32.35). There may in some cases be language so far in excess of the occasion as to be evidence of actual malice. But this will rarely be the case. A plea of malice requires a high degree of particularity, and the particulars must show a probability of malice: Seray-Wurie v Charity Commission of England and Wales

[2008] EWHC 870 (QB)

[34]-[35] (Eady J), Thompson v James

[2013] EWHC 585 (QB)

[16] (Tugendhat J). It is a very rare case in which a claimant can show even a pleadable case that a newspaper acted maliciously in publishing an otherwise privileged report. I accept Mr Stables’ submission that Mr Alsaifi has not put forward anything recognisable as a proper case of malice, nor could he sensibly do so. Honest opinion

[85]The argument of Mr Stables is that this defence would inevitably be upheld in respect of any defamatory imputation flowing from the reported comments of Mr Lewin. He rightly points out that paragraphs [14] to [16] are recognisably distinct from the fair and accurate report that precedes them. The three conditions that a defendant must show, to establish the statutory defence of honest opinion, are all plainly present here. Those three conditions are set out in s 3(2) to (4) of the Defamation Act 2013. The first is “that the statement complained of was a statement of opinion”. I agree with Mr Stables that paragraphs [14] and [16] are plainly opinion. The contrary is not arguable.

[86]The second condition is “that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.” This condition is clearly satisfied in the present case. Any reader of the published opinion would have easily understood the basis on which it was being expressed, namely the content of the NCTL decision.

[87]The third condition is that “an honest person could have held the opinion on the basis of … — (b) anything asserted to be a fact in a privileged statement published before the statement complained of.” For this purpose a “privileged statement” includes one “in respect of which the person responsible for its publication would have … a defence under section 15 of [the Defamation Act 1996]”: see s 3(7)(d) of the 2013 Act. I have held that paragraphs [1] to [13] of the Article amount to such a statement. I accept Mr Stables’ submission thatan honest person could very obviously have held the opinion on the basis of the facts asserted in those paragraphs.

[88]By s 3(5) of the 2013 Act the defence of honest opinion “is defeated if the claimant shows that the defendant did not hold the opinion”. But s 3(6) makes special provision for the case where, as here, “the statement complained of was published by the defendant but made by another person (“the author”)”. In such a case s 3(5) does not apply. The rule in such a case is that “the defence is defeated if the claimant shows that the defendant knew or ought to have known that the author did not hold the opinion”. There is no evidence or other material before the court to support the view that the author, Mr Lewin, did not hold the opinion he expressed. Mr Alsaifi has asserted that Mr Lewin did not know the facts of the case as he came on the scene later, but that takes him nowhere. Indeed, it tends to run counter to any case of malice. What Mr Alsaifi would need to prove is that Trinity Mirror knew or should have known that Mr Lewin did not believe what he was saying. Whether or not the notion is “absurd” as Mr Stables submits, it is certainly the case that no arguable basis is apparent for such a conclusion.

[89]It follows that a claim by Mr Alsaifi against Trinity Mirror in respect of paragraphs [14] and [16] of the First Article has no real prospect of success. It is bound to fail. Jameel

[90]This leaves paragraph [15], which Mr Stables does not seek to defend as a privileged report, or as a statement of opinion. Trinity Mirror’s application notice seeks to strike out the claim as an abuse of process pursuant to CPR 3.4(2)(b) on the grounds that it “discloses no real and substantial tort”. Mr Stables has relied on that principle as a ground for dismissing any part of the claim that might remain after consideration of his other principal arguments. He relies on the principle, most notably enshrined in the Court of Appeal’s decision in Jameel, that it is the duty of the court to put a stop to a claim for defamation which is not serving the legitimate aim of protecting or vindicating reputation, or where the costs and other consequences of pursuing that aim are wholly disproportionate to any tangible or legitimate benefit that might be obtained; where, to put it colloquially, “the game is not worth the candle”. The principle reflects the fact that whilst the pursuit of a defamation claim may be a means of giving effect to the right to respect for private life, it will always represent an interference with the right to freedom of expression.

[91]I agree that the Jameel doctrine applies here, and mandates the conclusion that any residual claim must be dismissed. The question is whether it is or could be legitimate and proportionate in all the circumstances to permit Mr Alsaifi to pursue a claim for libel against Trinity Mirror in respect of a single paragraph of the First Article, containing a quotation from Mr Lewin about how quickly Newcastle College had acted to suspend and then dismiss Mr Alsaifi three years earlier. The question must it seems to me be answered on the footing that any reader who drew a defamatory meaning about Mr Alsaifi from that single paragraph would also draw a similar, and equally serious defamatory meaning from the rest of the article, in respect of which Mr Alsaifi cannot complain. I am unable to see a basis on which paragraph [15] could be said to add materially to the overall defamatory sting of the article. Although it was not true that he had been dismissed, that error was corrected later. More importantly, the real sting of words such as these lies not in the allegation of dismissal but rather in the imputation that the claimant behaved in such a way as to justify dismissal. If that imputation was conveyed, it was conveyed in any event by the privileged report contained in the same article.

[92]These considerations suffice to justify the dismissal of the residual claim, if any, on Jameel grounds. It might be interesting, but it is neither necessary nor appropriate to speculate on whether such a claim might have fallen foul of the quite separate doctrine of re-litigation abuse. Overall Conclusions The claim against Trinity Mirror

[93]I have concluded that the words complained of are incapable of bearing the vast majority of the meanings complained of by Mr Alsaifi. They are however capable of bearing meanings defamatory of him, the parameters of which I have set out. But that conclusion is of little benefit to Mr Alsaifi, because I have upheld the Summary Judgment Application on the basis that the vast majority of the article is manifestly privileged, and there is no tenable case of malice; of the remainder of the article part would inevitably be found to be honest opinion, and the rest is so trivial that it would be abusive to pursue a claim in respect of it. The logical consequence is that there should be summary judgment for Trinity Mirror on the issues of privilege and honest opinion, and any residual claim be dismissed as an abuse. My conclusions on meaning are perhaps capable, however, of having a bearing on costs so far as the claim against Trinity Mirror is concerned. The claim against Newcastle College

[94]As conceded by the College, the words complained of against it are capable of bearing defamatory meanings about Mr Alsaifi. My conclusions as to the meanings which could be conveyed by the passages complained of against Newcastle College are set out above. What happens with this claim remains to be seen.