Neutral Citation Number: [2010] EWHC 100 (QB)
Case No:  HQ09D04510

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  27 January 2010 

Before :

THE HONOURABLE MR JUSTICE EADY
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Between :

	AZAD ALI
	Claimant	
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	ASSOCIATED NEWSPAPERS LIMITED	Defendant	

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David Hirst (instructed by Farooq Bajwa & Co) for the Claimant
David Glen (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing date:  15 January 2010
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Judgment
Mr Justice Eady : 
1.	The Claimant is Mr Azad Ali, who is a civil servant employed in the Treasury.  These libel proceedings relate to allegations published in The Mail on Sunday on 18 January 2009 and repeated the following day in The Daily Mail.  Reliance is also placed on the corresponding publications on the Defendant’s website.  The heading for the Sunday (and website) article was “Muslim civil servant suspended over ‘kill British’ blog” and that for the following day was “Civil servant ‘backed fanatic’s call to kill our troops in Iraq’ ”.
2.	The articles recorded the fact that the Claimant had been suspended from his employment following the posting of a number of remarks on his personal blog published on the Between the Lines website.  This is hosted by the Islamic Forum of Europe.  In the course of the article passages were cited from two particular postings published by the Claimant under the headings Defeating extremism by promoting balance and We are the Resistance II.  These appeared, respectively, on 18 November 2008 and 15 January 2009.
3.	The claim form and particulars of claim were served on 8 October of last year.  The same defamatory meaning is pleaded in respect of each of the relevant publications (appearing at paragraphs 6.1 and 9.1 of the particulars of claim):
“The Claimant is a hardline Islamic extremist who supports the killing of British and American soldiers in Iraq by fellow Muslims as justified.”
He thus appears to accept that anyone who supported such killing should be characterised as “hardline” and “extremist”.  To that extent, at least, the parties would seem to be agreed.
4.	The Defendant does not accept that this widely expressed meaning is necessarily conveyed by the words complained of but it is recognised, for the purposes of the present application, that a jury might uphold it and Mr Glen, on the Defendant’s behalf, has developed its arguments on that hypothesis.
5.	The Defendant drew attention in the articles to some other statements made by the Claimant.  In particular, he had criticised the UK government’s policy on the conflict between Palestine and Israel.  It appears that the Claimant did not approve of a statement by the Foreign Secretary in which Hamas had been classified as a “terrorist organisation”, since he had refused to condemn what the Claimant regards as “the Zionist terrorist state of Israel”.  There was also criticism of representatives of various British Muslim organisations which have been offering advice to the government.
6.	The articles cited observations by a Member of Parliament, Mr Patrick Mercer, who suggested that the Claimant’s criticism of government policy was inconsistent with the political neutrality generally expected of a civil servant.  Nevertheless, it had been confirmed by the Claimant well before proceedings were served that he was not complaining of that particular criticism.  
7.	On the present application, Mr Glen boldly seeks summary judgment pursuant to CPR Part 24 and/or an order for the claim to be struck out under CPR Part 3.4(2).  His submission is that it is bound to fail.  In short, he argues that the Claimant’s observations on his blog advocated a form of jihad which can only be understood as justifying the killing of British and American troops in Iraq.
8.	I have characterised the application as “bold” because Mr Glen has to demonstrate that a jury would be perverse to conclude other than that the Defendant’s allegations, even in the broad meaning contended for by the Claimant, are substantially true – and at a stage when no Lucas-Box meaning has been pleaded or any particulars of justification.  What Mr Glen argues is that a jury would indeed be perverse not to hold that the blogs in question are, in themselves, such as to justify the inference that the Claimant is a hardline Islamic extremist who supports the killing of British and American soldiers in Iraq as being morally justified.  That test accords with the principles identified in Alexander v Arts Council of Wales [2001] 1 WLR 1840 and  Jameel v Wall Street Journal Europe [2003] EWCA Civ 1694 at [14].
9.	Mr Glen did not place any reliance on a possible defence of fair comment.  He confined the argument to justification.
10.	He had no illusions as to the uphill nature of his task in the light of well established principles.  It is especially difficult to obtain summary judgment in a libel case in which it would be expected that a jury would ultimately be determining contested issues of fact and to draw or reject any inferences invited.  In this context, Mr Hirst for the Claimant draws attention to comments contained in Gatley on Libel and Slander (11th edn) at para 32.30 and to remarks made in the Court of Appeal in Spencer v Sillitoe [2003] EMLR 10 at [23]-[24]:
“ … Bearing in mind the emphasis placed on the right to jury trial in section 69 [of the Senior Court Act 1981] and the analogy drawn by this court in Alexander with the criminal practice in Galbraith, the question in a case such as the present comes down to whether there is an issue of fact on which, on the evidence so far available, the jury could properly, without being perverse, come to a conclusion in favour of the claimant.
That question has to be answered against the background of the great respect that is paid to a jury’s assessment of witnesses after seeing and hearing them, and hearing them cross-examined.  It is unlikely that a judge will be able to find that a witness will necessarily be disbelieved by a jury;  or that for a jury to believe him would be perverse;  when he has not actually heard that witness give evidence and be cross-examined:  unless, of course, there is counter evidence that plainly demonstrates the falsity of the witness’s evidence, as opposed, in this case, to rendering it, in the judge’s view, implausible.”
11.	Here, Mr Glen points simply to what the Claimant wrote in the relevant blog material, as to which there is no dispute, and to its meaning, which he suggests is unambiguous.  He draws attention to the well known remarks of Lord Woolf in Swain v Hillman [2001] 1 All ER 91, 94:
“It is important that a judge in appropriate cases should make use of the powers contained in Part 24.  In doing so he or she gives effect to the overriding objectives contained in Part 1.  It saves expense;  it achieves expedition;  it avoids the court’s resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice.  If a claimant has a case which is bound to fail, then it is in the claimant’s interests to know as soon as possible that that is the position.”
12.	Mr Glen highlighted the remarks of Lord Hobhouse in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at [158]:
“ … The judge is making an assessment, not conducting a trial or fact-finding exercise.  Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for.  A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters …  The criterion which the judge has to apply under Part 24 is not one of probability, it is the absence of reality.”
13.	Reference was also made to a passage in Miller v Associated Newspapers Ltd [2003] EWHC 2799 (QB) at [13]:
“Specifically in the context of the right to jury trial, judgment should not be given at any stage which has the effect of depriving the parties of a jury decision in any case where the defence may depend at least in part on a finding of fact which would be properly open to that tribunal:  see e.g. Wallis v Valentine [2003] EMLR 8 at [13] and Branson v Bower [2002] 2 QB 737 at [744].  Thus, even if a judge thinks that a particular factual conclusion for which one side contends is somewhat far-fetched, it is the jury’s credulity rather than the judge’s that must be kept in mind.  The parties should therefore be given the benefit of the doubt:  see e.g. Spencer v Sillitoe [2003] EMLR 10 at [31] and Bataille v Newland [2002] EWHC 1692 (QB) at pp 6-7.”
14.	In this particular case, it is necessary to have in mind the role of a jury not only in coming to conclusions of primary fact but also in drawing any appropriate inferences.  Mr Hirst referred in this context to a passage in Gatley on Libel and Slander (11th edn) at para 32.32, containing a citation from Bataille v Newland, cited above:
“First, it seems that I should address the primary facts relied upon by the claimant for establishing the defendant’s responsibility for the publication of the 12th January letter.  The burden is upon the claimant to establish those facts at trial.  At this stage, I should make all assumptions in favour of the claimant so far as pleaded facts are concerned.
Again, in so far as evidence has been introduced for the purpose of the present application, I should assume that those facts will be established, save in so far as it can be demonstrated on written evidence that any particular factual allegation is indisputably false.
The next question is whether, on the facts assumed, a properly directed jury could draw the inference for which the claimant contends.  In this case, of course, the inference is that the second defendant was, in some sense, a participant in the publication of the letter.  I should only rule out the case against the second defendant if I am satisfied that a jury would be perverse to draw that inference …
If the defendant’s case is so clear that it cannot be disputed, there would be nothing left for a jury to determine.  If, however, there is room for legitimate argument, either on any of the primary facts or as to the feasibility of the inference being drawn, then a judge should not prevent the claimant having the issue or issues resolved by a jury.  I should not conduct a mini-trial or attempt to decide the factual dispute of first appearances when there is the possibility that cross-examination might undermine the case that the defendant is putting forward.”
15.	Furthermore, the subject-matter of this litigation is obviously sensitive and capable of giving rise to strong feelings on the part of readers and onlookers.  It may be thought, therefore, all the more important that a judge should not appear to usurp the function of a jury and thus to deprive a claimant of the opportunity of putting his case in full before his fellow citizens.
16.	For the purposes of the present application, there is no question of the court being invited to pre-judge the credibility of witnesses on contested evidence or to pre-empt the jury’s role in this respect.  The arguments before me turned solely upon the meaning which it is said the Claimant’s blog would have conveyed to a reasonable and objective reader of it.  It is fair to assume in the circumstances that such a person would have at any rate some background knowledge of Islam.
17.	Attention focused particularly upon the blog entitled Defeating extremism by promoting balance.  No allegation was made by the Defendant in respect of the Claimant’s conduct on any earlier occasions.  Its articles contained the following statement:
“Until his Internet outburst, Mr Ali was regarded as a moderate Muslim who could help tackle Islamic fanaticism in Britain.”
As I understand the criticisms made of the particular blog in question, I do not take the Defendant to be asserting necessarily that it connotes a change of character or attitude on the Claimant’s part;  or that he had, in fact, up to that time been “moderate” in his beliefs.  They merely refer to an earlier perception;  that is to say, that he was “regarded as a moderate Muslim”.  I understand that it is on record that he has offered advice and assistance to the police and army in relation to cultural sensitivities and recruitment.
18.	As I have said, it is accepted for present purposes that the article could convey the general message that the Claimant is “a hardline Islamic extremist who supports the killing of British and American soldiers in Iraq”.  On the hypothesis that it does convey such a meaning, the Defendant would be prepared to justify the allegation on the basis of the contents of the blog alone.  What is more, on the present application, it is prepared to argue that it would be perverse to take any other view of the blog’s content.
19.	As expressed in preliminary correspondence, the Claimant’s view was that the blog did no more than make the point that some Muslims had been led to draw back “from engaging in a sensible debate on the Islamic position on any given topic” through a fear of being labelled as “extremists” or “terrorists”.  That is the position he took in his letter of 6 August 2009.
20.	The Claimant’s call for “balance” in his blog is based on the belief that some Muslims have taken the position, at one extreme, that the notion of jihad should be confined to the need for self-purification.  His own position is that it is an exaggeration for people to claim, as many now do, that Islam can be defined solely in terms of peace.  He also disagrees with Muslims at the other extreme, such as those involved in Al-Qaeda, who justify violence against civilians, and in particular civilians in their own territory, by reference to jihad.  
21.	The view which the Claimant espouses is that jihad contemplates the need for violence in some circumstances;  namely, where it is necessary to fight those who have occupied Muslim lands without the assent of the population.  Thus, he refers by way of example to the justification for violence used against the Russians during their occupation of Afghanistan in the late 1970s and 1980s.  In this context, he refers to the teachings of Abdullah Azzam, who died in 1989 and was sometimes known as “the father of jihad”.  He was himself, as I understand it, involved in “defensive” jihad in Afghanistan and elsewhere.
22.	The Claimant’s blog refers in its opening paragraph, and provides a hyperlink, to a “recent interview” with Abdullah Azzam’s son, Huthaifa Azzam.  It was in fact published in the Irish Times in July 2006.  He apparently takes a similar view to that of the Claimant, in the sense that he espouses a middle way in his interpretation and application of jihad.  The introductory quotation in the Claimant’s blog is as follows:
“If I saw an American or British man wearing a soldier’s uniform inside Iraq I would kill him because that is my obligation.  If I found the same soldier over the border in Jordan I wouldn’t touch him.  In Iraq he is a fighter and an occupier, here he is not.  This is my religion and I respect this as the main instruction in my religion for jihad.”
23.	Huthaifa Azzam is also quoted in the Claimant’s blog as referring back to his father’s teaching:
“He always warned people to stay away from the extremists, he even put it in his will.  What is happening today with Al-Qaeda is not his way.”
24.	It can thus be seen that Huthaifa Azzam would appear to have been justifying the fighting and killing of American or British soldiers in uniform in Iraq, by reference to jihad, while distancing himself from aggression towards them in lands in which they are not occupiers.  Mr Hirst points out that nowhere in his blog does the Claimant expressly endorse the same view as that of Huthaifa Azzam;  nor, for that matter, does he at any point seek to disagree or distance himself from that approach.  (It is true that there is a sentence in the blog which says, “I sense there is much truth in this …”.  I wish to make it clear that I do not, however, think it right to construe this as applying to the opening quotations from Huthaifa Azzam.  I believe it can only be taken as referring to the immediately preceding sentence: “We Muslims are not defeated by our enemies, but instead, we are defeated by our own selves”.)  
25.	Mr Glen submits that the plain, and indeed the only, construction of this particular blog is that the Claimant is commending the opinions of Huthaifa and Abdullah Azzam as representing the “balanced” view of jihad.  In two paragraphs of the blog (conveniently numbered in the court’s copy as paras 11 and 12) he makes these critical points of his own:
“The millions pumped in by the government to ‘de-radicalise’ Muslims will be a complete waste and will not really achieve anything other than one or two headlines here and there.  The real victory will come when we start promoting ‘balance’ in this matter (and in our religion) and not either of the two extremes.
Abdullah Azzam provided that balance – yet today he is viewed by some as a ‘terrorist’, by the same people who were his staunchest supporters and allies.  Jihad was promoted and proved useful to repel the Soviet occupiers of Afghanistan, but the same patrons now equate jihad to terrorism when it comes to the Iraqi occupation by the allies.  Worse still are those who attribute the works of certain extreme groups to him – whilst we hear from his wife that ‘He was against attacks outside the battlefield. The enemy had to be clear and known and you didn’t leave the battlefield to attack elsewhere’.”
26.	From these passages, and from the blog as a whole, it is submitted by Mr Glen that it is reasonable to infer that the Claimant is endorsing the approach of Abdullah Azzam (and indeed of his son) as to where the appropriate balance lies when construing and applying the moral imperatives of jihad.  
27.	So too, he submits, it is reasonable to infer that the Claimant would regard the resistance to the Soviet occupation of Afghanistan, three decades ago, as fully justified as a “defensive” form of jihad and that he sees no material distinction between that and the situation in Iraq at the time he was writing.  He is pointing up inconsistency among the “patrons” who were “supporters and allies” of Abdullah Azzam in relation to Afghanistan but who, in more recent times, seek to equate jihad with terrorism when it is used to justify the “Iraqi occupation by the allies”.  I would accept that it is indeed difficult to see what else those two paragraphs, in the context of the blog as a whole, are supposed to mean.
28.	One point that was briefly addressed in the course of submissions was that of the hyperlink.  It was said that it is so far undecided in the authorities whether, as a matter of generality, any material to which attention is drawn in a blog by this means should be taken to be incorporated as part of the blog itself.  I suspect that a general rule of thumb is unlikely to be adopted.  Much will depend on the circumstances of the particular case.  What I wish to make clear, however, is that for present purposes I proceed on the assumption that the Irish Times interview is not to be treated as an integral part of the Claimant’s blog.
29.	In the course his submissions, Mr Hirst based himself on a distinction drawn by the Claimant in his witness statement between the position in Iraq up to the elections in 2005 and that obtaining afterwards.  The suggestion appears to be that until the Iraqi elections the allied troops were “occupiers” and that resistance to them could be seen as justified by his “balanced” view of the requirements of jihad.  Thereafter, he seeks to suggest that the allies were there with the assent of the people of Iraq and therefore could not be properly regarded as occupiers.  Correspondingly, after those elections violence towards them could not be justified by his interpretation of jihad.  
30.	On the other hand, nowhere in the blog does the Claimant draw any distinction between those two periods in time.  This seems to be an explanation which has come about ex post facto.  Furthermore, the interview with Huthaifa Azzam was, as I have said, published in the Irish Times in July 2006;  that is to say, over a year after the Iraq elections.  Also, in the passage from the blog I have quoted, the Claimant himself used the present tense in November 2008 when speaking of “the Iraqi occupation by the allies”.  He criticises the “patrons” in question for “now” equating jihad to terrorism in that context.
31.	It is surely fair to say, even if one is alive to the Claimant’s distinction between the two periods in time, that the logic of his argument is that he would have regarded the killing of American and British troops in Iraq as being justified by reference to jihad up, at least, to the elections in 2005.  That represents a period of just under two years.  Yet, for the reasons advanced by Mr Glen, I cannot see any justification for construing the blog by reference to the temporal distinction the Claimant makes in his witness statement.  The passage I have cited seems clearly to convey the meaning that, on the “balanced” view of jihad, killing the “occupying” troops would still have been justified in November 2008.
32.	Mr Hirst did not go so far as to put forward any alternative meaning that a reasonable jury might uphold.  He merely argues that, on one possible interpretation of the blog, it would be incomprehensible to the reasonable reader.  I would not accept that, whether one applies the test of the general reader or the reader with a background knowledge of Islam.  I acknowledge that there are one or two terms which might not be understood by a non-Muslim reader, but that does not alter the overall sense of the blog.
33.	At all events, Mr Hirst submits in accordance with the authorities that the Claimant should not be deprived of his opportunity of having the benefit of a jury’s interpretation of the blog and its conclusion also on the validity of the inference Mr Glen seeks to draw (i.e. that the blog itself serves to justify the Claimant’s pleaded meaning).
34.	Mr Hirst also argues that the Claimant should be permitted to put in evidence as to his background and other pronouncements on the Internet, and no doubt elsewhere, in order to demonstrate to the jury that he is in fact not hardline or extremist;  that he is, moreover, not in favour of killing American and British troops in Iraq by reference to jihad.  He says that the journalists simply ignored all the other blogs and publicly available information that is said to “point away” from his being an extremist.  He would wish to invite the conclusion that they were out for “a good scoop for a Sunday front page”.  They have, he says, twisted the meaning of the blog.  He would also wish to call readers of the blog to say how they understood it.  These are arguments deserving of careful consideration against the background of the case law which I set out in some detail earlier in the judgment.
35.	Nevertheless, after reflecting on the matter, I am compelled to conclude that Mr Glen is correct in his submissions on these very unusual facts.  I would hold that the Claimant was indeed, in November 2008 and for so long as the blog remained available, taking the position that the killing of American and British troops in Iraq (whether before or after the 2005 elections) would be justified by his middle or “balanced” interpretation of jihad.  Moreover, since it is a matter of construing plain language in its overall context, I believe it would be perverse to take a contrary view.  In other words, it would not be a rational interpretation of the blog to understand the Claimant as saying either that the Allied troops were not “occupiers” in Iraq or that they ceased to be “occupiers” in 2005.
36.	In those circumstances, the claim can be categorised legitimately as “bound to fail” and as having about it an “absence of reality”.  Nothing would be gained by investigating other blogs in the past or the Claimant’s background in other respects.  Such an exercise could not change or qualify the plain meaning of the blog in question
37.	Accordingly I will accede to the Defendant’s application for summary judgment.