Case No: A2/2012/3071
Neutral Citation Number: [2013] EWCA Civ 1448
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Mr. Justice Eady
[2012] EWHC 3137 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 14th November 2013
Before :

LORD JUSTICE MOORE-BICK
LORD JUSTICE AIKENS
and
LORD JUSTICE VOS
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Between :

	KHALID MAHMOOD ANSARI	Claimant/
Respondent	
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	(1) TIMOTHY KNOWLES
(2) MANCHESTER METROPOLITAN UNIVERSITY
(3) VIKTORIJA ZILINSKAITE
(4) VILNIUS UNIVERSITY 	

Defendants/Appellants	
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(Transcript of the Handed Down Judgment of
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Miss Adrienne Page Q.C. (instructed by Addleshaw Goddard) for the appellants
Mr. John Samson (instructed by Brabners LLP) for the respondent
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Judgment
Lord Justice Moore-Bick : 
1.	In August 2007 some of the academic staff of Manchester Metropolitan University (“MMU”), including the claimant, Mr. Ansari, and the first defendant, Dr. Knowles, visited Lithuania in connection with a joint project to establish a postgraduate course in tourism at the University of Vilnius (“Vilnius”). Among the staff of Vilnius who hosted the visit was the third defendant, Ms. Viktorija Zilinskaite. In December 2007 academic staff from Vilnius, including Ms. Zilinskaite, paid a return visit to Manchester to continue the discussions. On 7th December 2007 Ms. Zilinskaite sent an email to two of the academic staff, Mr. John Theodore and Mr. Michael Jeffrey, each of whom had some responsibility for supervising Mr. Ansari’s work in connection with the Vilnius project. In a report attached to the email she criticised Mr. Ansari’s professional competence and personal conduct. She also sent a copy to the first defendant, Dr. Knowles, who admitted that he had sent copies on to two members of the Human Resources Department, Ameela Gabriel and Audrey Rodgers, and Cath Fairhurst, Head of the Clothing Design and Technology Department.
2.	The report, which has become known as the “Vilnius Memo”, contained the following statements:
“Having attended the lecture and seminar on service quality in tourism with Khalid Ansari 3-4 December 2007, the following was observed:
1.	The lectures lack tourism/hospitality/industry relevance;
2.	The lecture notes and references were obsolete;
3.	The content of the lecture was more suitable to undergraduate level rather than postgraduate;
4.	The information provided in the slides had not been properly updated (during the lecture the information on ISO standards 9002 and 9003 was presented as if the standards were still applicable, but the latter standards had been merged with 9001 seven years ago);
5.	The content of the lecture was more pertinent to product quality rather than service quality (e.g. 8 of Garvin’s dimensions are applied to products, rather than services);
6.	The demonstrated slide material was inconsistent both in content and direction;
7.	The demonstrated teaching methodology was poor (e.g. lack of communication with students, no dialogue or debate promoted).
. . .
K Ansari had been requested to supplement and correct the service quality module in September 2007, but no additional information had been received. Also, K Ansari did not communicate properly and effectively with the Lithuanian counterpart Dr R Adomaitiene on the issues of improving the module. Therefore, the ability and qualifications of K Ansari may be treated as insufficient for delivery of the module materials required.
The drawbacks on the Events Management module developed by K Ansari are the same as mentioned above for service quality module (no lecture notes, inconsistent slide materials, poor referencing).  Therefore, VU team has identified an urgent need to expand the team of MMU experts to develop this module . . . .
On a personal note, K Ansari was considered as overpowering to a point of being arrogant; pompous and dictatorial in his conversations to the Lithuanian counterparts; he was observed making false promises with respect to this project and possible future projects that are not his responsibility; there was clearly an inability to complete tasks. When asked by J Sekliuckiene to provide scientific articles by K Ansari – it was obvious that he has no publication record.
During the visit to Lithuania 6-7 August, K Ansari was observed excessively abusing alcohol on two successive days of the visit and he was not able to concentrate on the work to be completed. K Ansari talked down to the Lithuanian counterpart developing Strategic Management Module and requested T Knowles to simplify the material provided to VU, doubting the qualifications of Lithuanian counterparts (fortunately, T Knowles ignored that request).  Furthermore, K Ansari behaved sexually inappropriately, three times inviting the Lithuanian Project Coordinator V Zilinskaite for a ‘night cap’ in front of other people present at dinner. This is unprofessional, unethical and is regarded as sexual harassment. He has compromised the excellent work of numerous people at MMU which is unacceptable. He has also compromised the MMU and VU relationship with his actions.
Given the above, VU experts find it very difficult to work with K Ansari both professionally and personally.
The issues related to a range of aspects concerning the Strategic Tourism Management module have been clarified between Dr  J Sekliuckiene and Dr T Knowles.  Dr Knowles’s support in these matters is appreciated and particularly his willingness to share teaching material.
. . .
Memo developed by
Viktorija Zilinskaite
Project coordinator and Expert”
3.	On 1st December 2008 Mr. Ansari brought proceedings for defamation against Ms. Zilinskaite as publisher of the Vilnius Memo and Vilnius (on the grounds that it was vicariously liable for her actions) and also against Dr. Knowles and MMU as his employer. Dr. Knowles was said to have been a co-author of the Vilnius Memo and to have re-published the same defamatory statements himself by forwarding it to the Dean, Professor Murray, and Dr. Dinah-Ann Rogers, the Deputy Postgraduate Programmes Leader. (Dr. Knowles denies that he sent the Vilnius Memo to either of them, but admits that he sent it to the three members of staff mentioned earlier). In addition Mr. Ansari alleged that Dr. Knowles had slandered him on two separate occasions. First, he said that in January or February 2008 Dr. Knowles had said to one of his colleagues at MMU, Mr. Michael Anthonisz, that Mr. Ansari had told some students at Vilnius that they did not need to earn their qualifications but could buy them as he had (“the first slander”). Second, he said that in March 2008 at a meeting held as part of the investigations into the allegations made in the Vilnius Memo Dr. Knowles had repeated the substance of the allegations it contained and had also accused Mr. Ansari of sexually harassing students (“the second slander”).
4.	In his particulars of claim Mr. Ansari included a claim for aggravated damages in support of which he alleged that Dr. Knowles had made the various statements complained of knowing that they were false or recklessly, not caring whether they were true or false. In fact, in most cases the allegations relating to Mr. Ansari’s personal conduct concerned matters that were within Dr. Knowles’s direct knowledge, so that any question as to his state of mind should have been capable of being resolved without calling a great deal of evidence. However, the claim for aggravated damages was further supported by reference to a catalogue of complaints about the way in which Mr. Ansari said he had been treated by Dr. Knowles in relation to the Vilnius project and other academic matters. If true, it amounted to a sustained campaign of personal harassment. 
5.	In his defence Dr. Knowles denied that he had written the Vilnius Memo or that he had been involved in its publication to John Theodore or Michael Jeffrey, but he did admit having sent it to other members of staff. Both he and MMU pleaded that any publications of the Vilnius Memo had been made on occasions of qualified privilege and that the words complained of were true insofar as they meant that Mr. Ansari was not competent to deliver the modules he had undertaken to deliver for the project and had behaved unprofessionally and inappropriately. In support of the plea of justification they alleged that in producing materials for the project he had passed off as his own a substantial amount of material produced by others and copied from the internet. Thirty-eight separate instances were relied on in the defendants’ defence. They also alleged that many of the materials produced by Mr. Ansari were unsuitable for the purposes of the project, thus further demonstrating that he lacked the level of professional competence required for it. The defendants also pleaded that the allegations of personal misconduct on the part of Mr. Ansari made in the Vilnius Memo and by Dr. Knowles in March 2008 were justified.
6.	In his reply Mr. Ansari responded to the defence of justification in relation to the Vilnius Memo with an extensive riposte extending over 27 pages. The defence of justification in relation to the interview on 4th March 2008 provoked a further 9 pages in response. The claim of qualified privilege was met by an allegation of malice on the part of Dr. Knowles. That involved not only an allegation of dishonesty in reporting matters of personal misconduct and his contribution to the Vilnius project, but also his repeating and extending the broader allegations of a sustained campaign of harassment against him on the part of Dr. Knowles. 
7.	In March 2012 Mr. Ansari settled his claim against Vilnius under which he received a payment of £112,500 inclusive of damages, interest and costs. In addition Vilnius made a statement in open court acknowledging that the allegations in the Vilnius Memo were untrue and ought not to have been made. On the same occasion a statement was made on behalf of Mr. Ansari that he considered his reputation to be vindicated in respect of his claim against Vilnius. In the event Mr. Ansari agreed to pay his solicitors £100,000 on account of his costs. The balance was apparently used to defray an order for costs previously made in favour of the defendants. At various points in his submissions Mr. Samson, who appeared for Mr. Ansari, suggested that he had received no more than £12,500 in damages from Vilnius in respect of what was a very serious libel, but the division of the payment was entirely a matter between Mr. Ansari and his lawyers. Mr. Ansari had previously entered judgment in default against Ms. Zilinskaite for damages to be assessed. Apart from that, she will play no further active role in the litigation.
8.	It will be seen from my brief summary of the pleadings that the allegations of personal misconduct and the pleas of justification and malice to which they have given rise fall within a relatively narrow compass in so far as they turn on the direct knowledge of Mr. Ansari and Dr. Knowles. However, the issues relating to Mr. Ansari’s professional competence, even in relation to the relatively limited sphere of the Vilnius project, are much more extensive. That is partly because Mr. Ansari apparently seeks to challenge the defendants’ allegation of plagiarism by (among other things) reference to the technical characteristics of the material on which they rely. However, his case is that the Vilnius Memo seriously damaged his general professional reputation, thus broadening the scope of the enquiry. Likewise, the plea of malice seeks to extend the enquiry into areas which are not directly linked to the Vilnius project.
9.	On 3rd April 2012 Eady J. ordered that a number of questions be determined as preliminary issues. They included the question whether the settlement between Mr. Ansari and Vilnius extinguished any or all of his causes of action against Dr. Knowles and MMU in respect of the Vilnius Memo and, if not, whether it had become an abuse of process for him to persist in those claims. In a judgment delivered on 8th November 2012 the judge answered both questions in the negative. Dr. Knowles and MMU now appeal against his decision.
10.	The bulk of the judgment is taken up with the defendants’ primary argument that the settlement with Vilnius operated in law as a bar to any further claim based on the original publication of the Vilnius Memo. It was accepted that it would not bar a claim based on the separate publication by Dr. Knowles or either of the two claims for slander arising out of his conversations with other members of staff in February and March 2008, but it was said that as a matter of law Mr. Ansari could no longer pursue the claim based on the allegation that Dr. Knowles had been a party to the creation and publication of the Vilnius Memo. The judge rejected that argument and his decision on that point was not challenged before us.
11.	The defendants’ alternative argument below, namely, that to pursue against Dr. Knowles the claim based on the original publication of the Vilnius Memo would be an abuse of the process and that the court should therefore strike it out in the exercise of the jurisdiction recognised in Jameel (Yousef) v Dow Jones Inc [2005] EWCA Civ 75, [2005] QB 946, received relatively little attention. The judge did not think that the statement in open court was very compelling, since it was expressed in terms that Vilnius simply “accepted the claimant’s assurances” and it was public knowledge that the defendants were seeking to justify the allegations. In his view there remained a very large question mark over Mr. Ansari’s reputation and he considered that the litigation might provide vindication in respect of serious allegations against his professional competence and personal behaviour.
12.	The judge summarised the allegations made against Mr. Ansari in the Vilnius Memo as falling into the following eight categories which he said he had taken from Mr. Samson’s skeleton argument:
“(a)	being a sex pest;
(b)	being an alcoholic;
(c)	being unqualified for his lecturing post at the university;
(d)	guilty of deception in apparently buying his qualifications;
(e)	making false promises to external departments of MMU;
(f)	professional incompetence;
(g)	being arrogant and patronising in his manner;  and
(h)	telling lies.”
13.	Miss Page Q.C., who appeared for Dr. Knowles and MMU, submitted that the judge should not have accepted that summary which was misleading because it over-stated both Mr. Ansari’s case in relation to the Vilnius Memo and the meaning that could reasonably be ascribed to it. In my view there is some force in that criticism, since the Vilnius Memo did not accuse Mr. Ansari of being a sex pest generally, nor did it accuse him of being an alcoholic (although such allegations were said to have been made in other publications). It is also doubtful whether it accused him of being unqualified for his lecturing post or of being guilty of deception; both allegations are said to have been aspects of the first slander. The allegation of professional incompetence and of being arrogant and overbearing were both made in the limited context of his work on the Vilnius project. Mr. Ansari does not attribute to the Vilnius Memo an allegation of telling lies. Many of these discrepancies are of little significance in the context of the present appeal, but it was an important element in Miss Page’s argument that the allegations in the Vilnius Memo were not as extensive as had been suggested and should not have given rise to such wide-ranging cases on justification and malice. 
14.	The real thrust of Miss Page’s argument, however, was that, having obtained redress from Vilnius (including a recognition that it had agreed to pay him “substantial” damages), Mr. Ansari was unlikely to obtain any significant further relief against Dr. Knowles and MMU in respect of the original publication of the Vilnius Memo, even in the unlikely event that he were to obtain relief in respect of the subsequent re-publication and the two slanders. She submitted that he was unlikely to obtain an award of damages greater than the amount he had recovered from Vilnius and that, having acknowledged in open court that he considered his reputation to be vindicated in respect of his claim against it, he could not expect to obtain anything further from the defendants under that head. Nor was this a case in which an injunction was necessary to protect Mr. Ansari from further damaging publications, since there were no grounds for apprehending a further unlawful publication.  On the other hand, the breadth of the issues raised by the defendants’ justification case and Mr. Ansari’s allegation of malice meant that the costs of proceeding with the claim based on the Vilnius Memo (which the defendants had no prospect of recovering from Mr. Ansari) would be very substantial. Moreover, the case that Dr. Knowles had been involved in the creation of the Vilnius Memo was so thin as to count for very little. Although the other claims also raised issues of justification and malice, they were capable of being dealt with on a more limited scale. For example, most, if not all, of the facts relating to the second slander claim were within the knowledge of Mr. Ansari, Dr. Knowles and a small number of other witnesses. 
15.	Mr. Samson submitted that the court should be very slow to strike out a claim based on defamatory statements of a very serious nature which had been communicated to Mr. Ansari’s employer. He submitted that the defendants’ conduct had served to aggravate the damages considerably and continued to do so and that there were therefore very real prospects that at trial Mr. Ansari would recover damages significantly in excess of the sum of £12,500 which he had obtained from Vilnius. Moreover, it was a case in which it would be appropriate for the court to grant an injunction to prevent further publication. Unlike Jameel, this was not a case in which there was no real or substantial tort. 
16.	In Jameel the court was concerned with the publication of a newspaper article by a foreign defendant on its website using a server located in the United States. Since the publisher was outside the jurisdiction, it was necessary for the claimant to obtain permission to serve out of the jurisdiction in relation to such publications as had been made within the jurisdiction. There was evidence (on which the court proceeded) that no more than five persons in this country had read the offending article. The court considered that one of the essential requirements for obtaining permission to serve out of the jurisdiction, namely, whether it was arguable that there was a real and substantial tort, also provided a sound test for deciding whether actions for defamation more generally should be allowed to proceed. An important consideration in such cases is the need to hold a proper balance between freedom of expression and the protection of individual reputation. In that case the publication to a very small number of people causing little or no damage to the claimant’s reputation did not constitute a real and substantial tort and the claim was struck out as an abuse of process. The principle has since been applied in a number of different circumstances.
17.	I do not think that the present case is one in which, if Mr. Ansari’s case is made out, it can be said that the Vilnius Memo did not constitute a real and substantial tort. Although publication was limited to a few people, its nature and the identities of the persons to whom it was communicated made it potentially very serious. The real question is whether Mr. Ansari has for practical purposes obtained as much as he is ever going to obtain by way of redress, so that it is futile to press on in relation to the Vilnius Memo. When considering that question I doubt whether it is appropriate for the court to have regard to the strength or weakness of his case, except insofar as it can be seen without the need for any detailed enquiry to fall at one or other extreme of the spectrum. An application of this kind should not be allowed to become a vehicle for an investigation into the merits of the claim. Unless it is obvious that the claim has very little prospect of success (as was the case, for example, in Tesla Motors Ltd v British Broadcasting Corporation [2013] EWCA (Civ) 152 ), it should, in my view, be taken at face value. 
18.	Miss Page sought to persuade us that the case against Dr. Knowles and MMU based on the creation and initial publication of the Vilnius Memo was indeed so weak that it could properly be regarded as having no significant prospect of success. If that is so, it should not be allowed to proceed, not on the grounds that the costs are likely to be disproportionate to the benefit, but simply because it has no real prospect of success. The right way to achieve that end is by an application to strike out the claim pursuant to CPR Part 3 or for summary judgment under CPR Part 24. The defendants have not taken either of those courses, however, and this appeal must succeed, if it is to succeed at all, on the more limited grounds on which it was argued before the judge. I think we have to approach the matter, therefore, on the assumption that Mr. Ansari will succeed at the end of the day and ask ourselves whether he should be prevented from pursuing his claim because the costs will be out of all proportion to the benefit he is likely to obtain.
19.	It is convenient to deal at this stage with Miss Page’s point that Mr. Ansari, whose legal representatives are acting under a conditional fee agreement and who has no insurance against liability for the defendants’ costs, has no means of satisfying an order for costs in their favour if he is ultimately unsuccessful. From the defendants’ perspective the position is, of course, highly unsatisfactory, but it simply reflects the fact that the court has no power to order an impecunious personal (as opposed to corporate) claimant residing within the jurisdiction to provide security for a defendant’s costs. I doubt, therefore, whether the court can properly have regard to the claimant’s means in this case. 
20.	The primary object of the proceedings relating to the Vilnius Memo is to vindicate Mr. Ansari in respect of the damaging assertions it contained, but Vilnius has publicly accepted his denials of the allegations contained in it and has publicly acknowledged that the Vilnius Memo should never have been written. For his part he has declared that he considers his reputation to have been vindicated in respect of his claim against Vilnius, but he has received no comparable redress from Dr. Knowles, who for these purposes must be taken to have been a party to the publication. In my view, therefore, if he is successful at trial he can expect to vindicate his reputation in respect of the statements made by Dr. Knowles. On the other hand I do not agree with the judge’s suggestion that Mr. Ansari has a real interest in pursuing the matter to trial simply in order to have the defence of justification determined. Nor do I think that the provision in  CPR 5.4 allowing access to the parties’ statements of case and thence to the plea of justification means that the defendants can be treated as publicly maintaining the defamatory statements. Mr. Ansari’s cause of action is limited to the publication contained in the Vilnius Memo. He cannot enlarge it by relying on what is said in the defence (although the plea of justification may aggravate the damages if he is successful) and, as Miss Page pointed out, there are many situations in which the issues raised by a plea of justification remain unresolved.
21.	Whether Mr. Ansari could expect to recover a significant amount by way of damages is more difficult to determine in the light of the terms on which he settled with Vilnius. The sum of £112,500 is substantial and might well exceed any award of damages he could have expected to recover if the matter had gone to trial, but it was expressed to be inclusive of damages, interest and costs. In effect, Vilnius paid a lump sum in respect of the whole of its potential liability. We were told by Miss Page that by the time he settled with Vilnius Mr. Ansari’s costs exceeded the sum of £100,000 by a very significant margin. If so, he could reasonably expect to recover a substantial sum in respect of the costs he had already incurred in addition to any award of damages. In those circumstances I do not think it would be right to disregard that fact when considering what he can expect to obtain from continuing to litigate this issue. 
22.	Miss Page submitted that to a large extent the costs of litigating the issues arising out of the Vilnius Memo itself are being increased by Mr. Ansari’s insistence on arguing that the alleged libel relates to his professional competence in general (rather than simply his ability to meet the demands of the Vilnius project) and the unnecessarily wide allegation of malice. She argued that if the claim were struck out the issues arising from the pleas of justification and malice could be disposed of in a much narrower compass and at greatly reduced cost. 
23.	I accept that if proper steps are not taken to manage these proceedings effectively the costs of litigating against Dr. Knowles the claim based on the Vilnius Memo are likely to be substantially increased by the breadth of the pleas of justification and malice. However, with the consent of the parties the court has already directed that a number of preliminary issues be tried, the determination of which may result in the proceedings being terminated or considerably reduced in scope. There may be other steps that can be taken to control this unwieldy litigation and this is certainly a case which calls for the firm exercise of the court’s case management powers. However, for the reasons I have given I am not persuaded that it would be right to strike out as an abuse of process the claim against Dr. Knowles and MMU based on his alleged participation in the production and publication of the Vilnius Memo. I would therefore dismiss the appeal. 
Lord Justice Aikens :
24.	I agree.
Lord Justice Vos :
25.	I also agree with Moore-Bick L.J.’s judgment.
26.	I think the judge was entirely right to place some weight upon the fact that Vilnius University’s statement in open court was not very compelling.  Insofar as the truth of the Vilnius Memo was concerned, the statement said that Vilnius University was “happy to accept Mr Ansari’s assurances that the allegations in [the Vilnius Memorandum] are false”.  That is rather different from an acceptance that the allegations were in fact false, and goes some way towards justifying Mr Ansari’s wish to pursue his claim in respect of the Vilnius Memo against the other alleged author of it.
27.	I would emphasise too that, on an application to strike out a claim on the Jameel principle, where the question of abuse of process depends on whether the game is or is not ‘worth the candle’, it is not appropriate for the court to undertake any kind of mini-trial, based upon incomplete evidence, either as to liability or quantum.  Such a course is to be avoided on a strike out or a CPR Part 24 application for summary judgment, and is, in my judgment, equally undesirable where a Jameel application is made.
28.	I too would dismiss this appeal.