Alsaifi v Amunwa [2017] EWHC 1443 (QB) (27 June 2017)

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England and Wales High Court (Queen's Bench Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Alsaifi v Amunwa [2017] EWHC 1443 (QB) (27 June 2017)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2017/1443.html
Cite as: [2017] EWHC 1443 (QB), [2017] 4 WLR 172, [2017] WLR(D) 508

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		Neutral Citation Number: [2017] EWHC 1443 (QB)
		Case No: HQ16D04156

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

27/06/2017

B e f o r e :

MR JUSTICE WARBY
____________________

Between:

	Tariq Alsaifi	Claimant
	- and -
	Benjamin Amunwa	Defendant

____________________

The Claimant in Person
Simon Harding (instructed by Ronald Fletcher Baker LLP) for the Defendant

Hearing date: 8 June 2017
____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Mr Justice Warby :

Introduction

This is the hearing of an application by the defendant to this claim for libel, by which he seeks to bring it summarily to an end. Also before the court is an application notice filed by the claimant in response to the defendant's application, seeking rulings on meaning.

The claimant, Mr Alsaifi, describes himself as "a highly educated professional with qualified statuses in teaching, lecturing accountancy and engineering" who has worked as a teacher and lecturer in the North East of England since 2002. The defendant, Mr Amunwa, is a barrister and legal commentator. At the material times he operated a website called "law mostly", at the address https://lawmostly.com, a Facebook account also called lawmostly, and a Twitter account in the name benamunwa.

The claim relates to an article or blog post published by Mr Amunwa on the website and via these social media accounts from about 5 August 2016 under the heading "Teacher's regulator acted outside its power in unlawful prosecutions" ("the Article"). The Article related in large part to a judgment given by Andrews J DBE sitting in the Administrative Court on a statutory appeal brought by Mr Alsaifi against a decision of the Secretary of State for Education to prohibit him indefinitely from teaching: Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin) ("the Appeal Judgment"). The Secretary of State's decision was made on the recommendation of a panel of the National College for Teaching and Leadership ("NCTL"), an executive agency appointed by the Secretary of State as the regulator for the teaching profession.

The claimant, who has represented himself throughout, issued these proceedings on 1 December 2016. He did so by filing a Part 8 claim form. Initially, his case was set out in the claim form and a statement of case dated 20 November 2016. However, by Order of Master Cook dated 1 February 2017 the action was ordered to proceed as a Part 7 claim. Mr Alsaifi was directed to file and serve by a specified date Amended Particulars of Claim, "which is to comply with the requirements of CPR 16, CPR 53 and the relevant Practice Directions", and certain other specified requirements, failing which the claim would be struck out. On 27 February 2017 he filed and served the Amended Particulars of Claim which now stand as the formal statement of his case.

Master Cook's order set a deadline by which the defendant should either file and serve a Defence or "make an application to strike out the Claimant's claim, apply for summary disposal, or apply for such other remedy as so advised." The defendant chose the latter course. Accordingly, there is at present no Defence. But the nature of the defences that would be relied on is sufficiently clear from the application the defendant has made.

The applications

By his application notice dated 10 March and sealed on 15 March 2017 the defendant seeks rulings from the court (1) that the words complained of are not capable of bearing the meanings attributed to them in the Particulars of Claim, and (2) that they are not capable of bearing any other meaning which is defamatory of the claimant. In the event that those determinations are made, the defendant seeks the dismissal of the claim. In the alternative, he seeks an order for summary disposal of the entire claim pursuant to s 8 of the Defamation Act 1996 on the grounds that "the claimant has no reasonable prospect of succeeding in his claim". That alternative application is based on the propositions that the majority of the Article was a fair and accurate report of the Appeal Judgment so that the defendant has an unassailable defence of absolute or alternatively qualified privilege; and if the Article was otherwise defamatory a defence of honest opinion would be bound to succeed.

The claimant filed notice of a cross-application, sealed on 31 March 2017, for a ruling on meaning in his favour, to the effect that the words complained of are capable of bearing "the meaning attributed to them in paragraphs 5, 6 & 7 [of the Amended Particulars of Claim] and/or any other meaning defamatory of the claimant".

Issues

The main issues for determination are, accordingly,

(1) Whether the words complained of are capable of bearing any of the meanings of which the claimant complains, or any other meaning defamatory of Mr Alsaifi; and if and to the extent they are

(2) Whether Mr Alsaifi has any real prospect of success at trial, given the defendant's intention to rely on the statutory defences of privilege for court reporting and, if necessary, honest opinion.

The burden of proof or persuasion lies on the defendant in relation to his applications, and on the claimant in relation to his application. But these are not issues in respect of which the burden of proof is of any great consequence. The court must form a view on the basis of all the evidence and argument before it. In doing so I need to bear in mind that this is a filtering process and that there are high thresholds to be met before one can justify cutting short the legal process and disposing of a claim at the interim stage, in summary fashion. The thresholds are identified at [45], [47] and [56] below.

Evidence and argument

I should pay tribute to the economy of the written and oral argument advanced by Mr Harding on behalf of Mr Amunwa, and I commend Mr Alsaifi for the courteous and generally clear presentation of his case at the hearing. It is however a matter of concern that both sides placed excessive documentary material before the court.

The issues I have identified are relatively narrow in scope, and do not require or admit of any substantial volume of evidence. The question of meaning is in this, as in most cases, a matter for resolution by applying settled principles to the particular statement(s) complained of. In this case the statement is quite short. Evidence as to meaning is in general inadmissible. As will be clear from the statements of principle which I set out below, the court is required to avoid over-elaborate analysis and must treat the issue of meaning as one of impression. It is therefore wrong to allow the parties to press the court in argument with minute textual analysis, which will generally tend to distract rather than assist. The other main task which the applications require is a comparison of the Article with the Appeal Judgment, to determine whether the one could be found at a trial to be an unfair or inaccurate report of the other. That is a matter capable in principle of sustained and serious argument, but not one that depends, or could turn, on evidence of any facts extraneous to the two documents in question.

Both parties nonetheless submitted a substantial volume of evidence. Mr Amunwa's case was set out in a witness statement and exhibits of Mr Ramdarshan. Appropriately, the exhibits consist only of the Appeal Judgment and the Article. The statement itself runs, however, to 67 paragraphs over 18 pages. A large proportion of this consists of argument as to meaning, the availability of a privilege defence, and the issue of serious harm which has not in the event been pursued. Mr Alsaifi filed a witness statement consisting of 107 paragraphs, covering 25 pages of single-spaced text, together with a 339 page "Bundle of Evidence" and other documents. Some, but relatively little of Mr Alsaifi's witness statement and evidence was relevant to his own application. In fairness to him, the nature of the defence application meant that he was entitled to address evidentially the issues of malice and serious harm, and he did so. But his materials did show a lack of focus. The statement also contained a good deal of argument. It was supplemented by a 4,000 word skeleton argument.

I make these points to emphasise the importance of parties to litigation of this kind ensuring that they conduct their cases proportionately. Parties have a duty to help the court to ensure that the case is conducted in accordance with the overriding objective. It is unreasonable, and tends to obstruct that objective, if the parties deluge the court with so much written material on an application of this kind. As I told the parties at the hearing, I deliberately paid scant attention to the many pages of argument about meaning that were contained in the evidence, focusing my attention instead on reading the words complained of for myself. I took this approach for three main reasons. First, evidence as to meaning is strictly speaking inadmissible. Secondly, this approach accords with the principles governing the determination of meaning, set out below. Thirdly, and perhaps consequentially, this approach accords with the overriding objective, not least the principle of proportionality and the need to allocate to any given case a share of the court's resources that is appropriate, and not excessive.

Summary of conclusions

Even bearing in mind the high thresholds to which I have referred, I have concluded that many of the meanings complained of by Mr Alsaifi are strained, forced, unreasonable and extravagant, and meanings that a reasonable reader could not possibly draw from the words complained of. I have however concluded that the words are clearly capable of defaming Mr Alsaifi. Applying the principles of law that I set out below, I find that the part of the Article which consists of a report of the Appeal Judgment could convey to a reasonable reader a meaning or meanings to the effect that Mr Alsaifi engaged in inappropriate conduct towards a 17-year old who was his pupil, and was thereby guilty of unacceptable professional conduct (or professional misconduct). I specify more precisely the nature of the possible meanings in paragraph [52] below. Such meanings are without doubt defamatory in the common law sense.

However, it is quite clear to me that the court would inevitably conclude that the passages in the Article which could convey such meanings constituted a fair and accurate report of the Appeal Judgment. In my judgment the report was not, or at least arguably not, "contemporaneous" for the purposes of the relevant statutory provision. It is therefore at best doubtful that this part of the Article would attract absolute privilege. But in my judgment, the statutory defence of qualified privilege for fair and accurate court reports that are not contemporaneous would inevitably be upheld in respect of this part of the Article, and Mr Alsaifi has no real prospect of establishing malice so as to defeat that defence.

As to the remainder of the Article, it is not in my judgment defamatory of Mr Alsaifi, nor is it capable of defaming him. If and to the extent that is wrong, then as Mr Alsaifi himself put it in his original statement of case, the Article "comments on" the Appeal Judgment. Any comment that implicitly defames Mr Alsaifi would inevitably be held to amount to honest opinion under s 3 of the Defamation Act 2013. Mr Alsaifi has no prospect of proving that the opinion was not held.

For those reasons I uphold the application for summary disposal and will grant the appropriate relief. More detailed explanation follows.

The factual background

Mr Alsaifi commends the Appeal Judgment for its admirable and concise account of the relevant background, saying that "Her Ladyship made an extraordinary effort to summarise the background to the alleged story in only 38 paragraphs". I echo those sentiments, and propose to rely extensively on Andrews J's summary for present purposes. But for those purpose I do not need to set it out in full. I can pick out the following:

"4. On 5 August 2013, the appellant was engaged on an hourly paid fixed term contract as a lecturer in accountancy and finance by Newcastle College ("the College") in its School of Health and Enterprise ("SHE"). … In the advertisement for the job for which the appellant successfully applied, the College described itself as "one of Britain's largest and most successful further education institutions". ….

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 …

…

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. They had been amended … Allegation 1 now asserted that whilst employed at the College the appellant failed to maintain professional boundaries towards Ms 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 her 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 Ms B whether a fellow learner, C, was the boyfriend of Ms A.

Allegation 2, which in the event the panel found unproved, was that on one or more occasions the appellant unbuttoned his shirt in a teaching environment to such an extent that he was left in "an inappropriate state of undress". Allegation 3 was that his conduct in regard to allegation 1 was sexually motivated."

These allegations against Mr Alsaifi were examined by the panel at a hearing in February 2016. The panel's findings and recommendation are summarised at paragraph [42] of the Appeal Judgment:

"42. … 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."

A decision maker acting on behalf of the Secretary of State accepted that recommendation, and a Prohibition Order was made.

The Appeal Judgment

Andrews J began her judgment by explaining the nature of the proceedings before her:

"1. This is a statutory appeal against the decision of the authorised decision-maker for the Secretary of State for Education ("the Secretary of State") dated 29 February 2016, to make an indefinite Prohibition Order (with a review period set for three years from 7 March 2016) prohibiting the appellant from teaching in any school, sixth form college, relevant youth accommodation or children's home in England. The Prohibition Order was made on the recommendation of a professional conduct panel ("the panel") of the National College for Teaching and Leadership ("NCTL") … dated 25 February 2016, finding the appellant guilty of unacceptable professional conduct."

The Judge then summarised the main issues and her conclusions upon them:

"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."

Those conclusions turned on the judge's interpretation of the key provisions of the 2002 Act, and its application to the facts of the case before her, as she made clear in the section of her judgment headed "Jurisdiction" at paragraph [43]:

43. Logically, the first issue that arises is whether the NCTL had any power to investigate the matter, refer the matter to a professional conduct panel, and make the recommendation upon which the Secretary of State acted. This turns on the proper interpretation of sections 141A and 141B of the 2002 Act, which only apply to certain types of teacher….

The Judge then set out the relevant provisions, pointing out the following:

(1) The regime applies to "a person who is employed or engaged to carry out teaching work" at one or other of certain specified institutions;

(2) "teaching work" is defined in the statute as various specified activities relating to pupils, including delivering lessons to pupils, and assessing the development, progress and attainment of pupils;

(3) By s 3(1) of the 2002 Act "a pupil" is defined to mean:

"…. a person for whom education is being provided at a school, other than –

A person who has attained the age of 19 for whom further education is being provided, or

A person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided."

The Judge explained her conclusion on the jurisdiction issue in paragraph [47]:

"47. Ms A was excluded from the statutory definition of "pupil" because, despite being only 17, she was undergoing part-time education suitable to the requirements of persons of any age over compulsory school age. On that basis alone, the appellant was not engaged in "teaching work" for the purposes of the Act or the Regulations when he was lecturing on the AAT course that she attended which was open to adults aged up to 60. In any event, Ms A was not being provided with education at a "school" as defined in the 2002 Act. Newcastle College does not fall within the ambit of the descriptions of any of the educational institutions referred to in s.141A. It was, as it described itself to be, a further education establishment. Therefore, at the time of the conduct complained of, (and when it came to light) the appellant was not a teacher to whom sections 141B to 141E of the 2002 Act applied."

Andrews J indicated that she considered this to be an unsatisfactory situation, but not one she could alter by judicial decision:

"48. There may be some different regulator responsible for the conduct of those engaged as lecturers by further education establishments such as Newcastle College, or by Universities; however, at the hearing, neither counsel nor the appellant was able to identify any such body, if indeed it exists. It is possible that such conduct is solely a matter for internal regulation by the individual establishment that engages the teacher. In any event Parliament, in deliberately restricting the categories of educational establishment whose teachers are subject to regulation by the NCTL, plainly did not intend that someone doing the job that the appellant was doing at the relevant time would be subject to regulation by that body, regardless of the age of the people he was teaching, and however desirable such regulation might objectively appear to be. It is not the function of this Court to widen the ambit of the statutory restrictions on the Secretary of State's powers.

…

66. What makes this case particularly troublesome is that the appellant's behaviour, and his failure to observe the appropriate boundaries between himself and a learner in his class (even if, as he says, he believed the learner to be an adult) is undoubtedly conduct of a type that would trigger alarms in the minds of those who were concerned to protect sixth-formers or teenagers that he might be teaching in future. On the other hand, the conduct occurred at a time when the responsibility for regulation of his conduct was not a matter for the Secretary of State and he was not engaged to teach such pupils. Why should his subsequent engagement as a teacher suddenly bring that matter within the remit of s.141A and s.141B? It is plain from the way that the charges against the appellant were framed that the case presenter and the NCTL panel were all proceeding under the misapprehension that he was a "teacher" within the definition of s.141A at the time of the behaviour complained of and that Ms A was a "pupil" by reason of her age (which she was not).

…

71. That leaves the vexed question of whether an investigation which the NCTL had no power to carry out, and a referral of professional conduct charges for hearing before a professional conduct panel which had no jurisdiction to hear them at the time, somehow became legitimate by reason of the happenstance that, at the time when the hearing took place, unbeknown to the case presenter and the panel, the appellant did fulfil the criteria in s.141A. There is an obvious attraction in Ms Walker's submission that it would be pointless to require the Secretary of State to initiate the whole process over again once the appellant fulfilled the criteria for referral, … [but]

72. I cannot accept that line of reasoning… "

The references at [66] to the appellant's "behaviour, and his failure to observe the appropriate boundaries" reflect the conclusions that Andrews J reached on the substantive merits of the case, when considering the other grounds that Mr Alsaifi had pursued by way of appeal. He had complained that the process before the NCTL was procedurally unfair, that the panel had reached conclusions that were not open to them, and that their findings were wholly wrong. Andrews J decided, in case the matter went further, that she should state her conclusions on those grounds. She dismissed them all. I have already cited her record of the panel's conclusions. She went on to say this:-

"42. … 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 … 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 WITNESSES

92. 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. "

Andrews J summed up her overall conclusions on the merits of the appeal in paragraph [100] of the Appeal Judgment, in this way:

"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 … Therefore this appeal is allowed and the Prohibition Order will be set aside."

The Judge was critical of the way the NCTL had dealt with the matter. She said this of the "prosecution" before the panel:

"The panel and the case presenter should have been aware of the ambit of the NCTL's jurisdiction but it appears that no-one, not even the panel's legal advisor, was alive to the fact that there was a serious issue about the legitimacy of the proceedings. What the appellant said was enough to have put them on notice of the issue."

The Article

The Article was first published on 5 August 2016, about 6 weeks after the Appeal Judgment was handed down. It is convenient to set out the words complained in their full context. The bold type indicates the words of which Mr Alsaifi complains. The paragraph numbering has been added by me for ease of reference in this judgment:

"TEACHER'S REGULATOR ACTED OUTSIDE ITS POWER IN UNLAWFUL PROSECUTIONS

[1] Teachers accused of unacceptable professional conduct are usually investigated by the regulator, the National College for Teaching and Leadership ('NCTL'), and, if necessary, barred from teaching.

[2] Allegations are referred to the NCTL, the teachers regulator, who investigate and where appropriate, send the case to an independent panel to hear the evidence and to decide whether the allegations are proven and whether a Prohibition Order should be made. The process is designed to protect the public and help safeguard children in the education system.

[3] For some time the NCTL has taken a wide approach to its remit by prosecuting persons who have been involved in teaching work in schools at any time, whether before or after the alleged misconduct.

[4] On this basis, it has investigated and prosecuted lecturers and examiners as well as persons who dip in and out of teaching at schools. However, two recent High Court decisions that have refined the class of persons that can be prosecuted by the NCTL and called into question the NCTL's assumptions about the scope of its own powers.

[5] The key issue has been whether the NCTL's jurisdiction includes persons who fall outside the definition of a "teacher" in in section 141A of the Education Act 2002 ('EA 2002').

[6] First came Zebeida v Secretary of State for Education [2016] EWHC 1181 (Admin), where although the High Court emphasized that the protection of children "must be at the heart of the education system" and this called for robust regulation, it nevertheless held that:

If a person is not a "teacher" at the time of the misconduct and the time of the referral, then the NCTL has no jurisdiction to investigate, convene a panel hearing and bar the person from teaching.

The law allows for referral to the regulator where a person is employed or engaged as a teacher (whenever the misconduct occurs) or who was employed or engaged as a teacher at the time of the misconduct or when it comes to light (§ 37).

[7] Then came the case of Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin), where Mr Justice Andrews gave judgment.

Mr Alsaifi was a lecturer with a further education college. An allegation was made that he had sent inappropriate emails to a 17-year old learner in his class, made inappropriate physical contact with her and tried, unsuccessfully, to enter a relationship with her. The matter was investigated internally. Mr Alsaifi resigned.

Section 141A and 141B of EA 2002 only apply to certain types of "teacher". Lecturers in Further Education colleges do not fall within section 141A.

Mr Alsaifi was not a "teacher", either at the time of the alleged misconduct or the referral to the NCTL. Further, under section 3 of the 2002 Act, the complainant was not a "pupil" as she was doing part-time education in an FE setting. The learners in Mr Alsaifi's class were not "pupils".

The Judge rejected the rather outlandish argument by the Secretary of State that it was not open to the Appellant to take the jurisdiction point if he had failed to raise the argument at the panel hearing [§ 52].

The High Court criticised the manner in which Mr Alsaifi was prosecuted:

"The panel and the case presenter should have been aware of the ambit of the NCTL's jurisdiction but it appears that no-one, not even the panel's legal advisor, was alive to the fact that there was a serious issue about the legitimacy of the proceedings. What the appellant said was enough to have put them on notice of the issue. (§ 53)

The Judge doubted whether the law allows for persons who are currently teachers to be investigated by the regulator for unprofessional conduct that occurred in the past when the person was not engaged as a "teacher" under section 141A. However, there are arguments both ways and the point did not need to be decided (§64 – 67).

Regulatory proceedings started when there was no power to do so cannot become legitimate by chance because at the time of the hearing the person met the criteria (§ 77).

[8] So who regulates lecturers in further education colleges who may be in contact with children as young as 16? No-one at the Court hearing seemed to know:

"There may be some different regulator responsible for the conduct of those engaged as lecturers by further education establishments such as Newcastle College, or by Universities; however, at the hearing, neither counsel nor the appellant was able to identify any such body, if indeed it exists. It is possible that such conduct is solely a matter for internal regulation by the individual establishment that engages the teacher. (§ 48)

MIND THE GAP

[9] These case highlight a significant protection gap that has been left wide open by Parliament and which the Court was unable or unwilling to fill.

[10] Alleged misconduct in educational settings involving children should attract investigation and sanction. Whether it takes place in an FE college or a sixth form college should not make a decisive difference to the regulatory consequences.

[11] It seems inherently unfair and unsafe that an FE tutor who commits inappropriate conduct with a child will not have to face the regulator and would be free to re-engage in school work with children at a later date.

[12] I would not be surprised if the new Secretary of State seeks to close this gap by adding tutors and lecturers at FE institutions (and other types of tutors such as examiners) to the list of those defined as "teachers".

[13] For now, the gap remains open and there may be good grounds to review all historic cases where persons have been found guilty of unprofessional conduct and barred from the profession if it can be argued that the person was not a "teacher" as defined by section 141A of the 2002 Act, read with the Regulations, at the time of the misconduct (or when it comes to light) and at the time of the referral to the NCTL.

[14] Persons who have been wrongfully prosecuted may well have claims for damages where the effect of the proceedings has been detrimental to their health.

WHO BENEFITS?

[15] In summary, in cases concerning unacceptable professional misconduct by teachers the effect of the recent High Court cases is as follows:

If a person does not meet the "teacher" criteria in section 141A of the 2002 Act either at the time of the misconduct (or possibly when it comes to light) or the date of the referral to the NCTL, the NCTL has no jurisdiction to investigate and prosecute them.

If a person only meets the "teacher" criteria at the time the referral to the NCTL is made, the NCTL has jurisdiction, but this is subject to arguments about whether or not the NCTL should investigate misconduct committed when the person was not a "teacher" (see §§ 64 to 67 and 76 in Alsaifi). (This scenario is quite uncertain as the Court did not give any guidance on when it would be appropriate to prosecute in these cases. The answer is probably fact-specific).

If the "teacher" criteria are only met at a later date (after the misconduct and after the referral) then the NCTL has no jurisdiction."

On or about 10 August 2016, changes were made to the Article following contact made by Mr Alsaifi with Mr Amunwa. It would appear that paragraph [11] was removed. Materially, because it is complained of, the following sentence was added at the end of the first blob under paragraph [7] (the bold type identifies words of which Mr Alsaifi complains):

"He denied any inappropriate conduct and/or touching and denied knowing that the learner was 17-years old."

Meaning

Mr Alsaifi's case

The meanings, or defamatory imputations, which Mr Alsaifi attributes to the words of which he complains are set out in two paragraphs of the Amended Particulars of Claim. In paragraph 5 he pleads as follows:

"In their natural and ordinary meaning, the words complained of meant and were understood to mean that the Claimant was / is: Paedophile, risk to children, has a sexual misconduct within children's learning settings, risk to adult, has a sexual misconduct within adults' learning settings, untrustworthy, exploit 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."

Paragraph 6 of the Particulars of Claim puts forward the following further and alternative meanings "by way of innuendo":

"that the Claimant was / is: Paedophile, risk to children, has a sexual misconduct within children's learning settings, risk to adult, has a sexual misconduct within adults' learning settings, untrustworthy, exploit 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."

In support of these innuendo meanings Mr Alsaifi sets out at paragraphs 3.4, 3.5, 6.1-6.5 some "Particulars of Innuendo". These include, by way of example

"The fact that some other online commentators on the Claimant's case, with less harming words, accepted to remove their comments, articles, or wordings" and

"The Claimant was popular with good references, the Judgment para 5 and 31. The Claimant does not have any misconduct in any settings, references in the BUNDLE".

Principles

No claim in defamation can succeed unless the statement complained of has a defamatory tendency, according to well-established common law principles. Ordinarily, the question of whether a statement is defamatory by those principles will depend on the meaning of the statement. This may be a natural and ordinary meaning, or a true innuendo meaning – one which arises from knowledge of facts which are extrinsic to the publication and are known to some readers, but are not matters of common knowledge.

Because meaning is so critical to defamation cases, and the question of whether a meaning is defamatory is one that often arises, the Part 53 Practice Direction requires a claimant to specify the meaning or meanings of which he or she complains. CPR PD 53 para 2.3 says as follows:

"2.3

(1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, both—

(a) as to their natural and ordinary meaning; and

(b) as to any innuendo meaning (that is a meaning alleged to be conveyed to some person by reason of knowing facts extraneous to the words complained of).

(2) In the case of an innuendo meaning, the claimant must also identify the relevant extraneous facts."

The court has a power to make rulings on meaning, conferred by CPR PD 53 para 4.1. This is the provision on which both parties rely on this application. It says as follows:

"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."

In support of his related application to dismiss the claim the defendant relies on CPR Rule 3.4(2)(a) and (c), which say as follows:

"3.4— Power to strike out a statement of case

…

(2) The court may strike out a statement of case if it appears to the court–

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

…; or

(c) that there has been a failure to comply with a rule, practice direction or court order."

The meaning applications in this case have a rather old-fashioned flavour to them. The predecessor of the provisions of the Part 53 PD that are relied on today came into force over 20 years ago, in 1994: see Gatley on Libel and Slander 12^th ed at 30.3. This was several years before the CPR, at a time when s 69(1) of the Senior Courts Act 1981 provided for trial by jury as the default mode of trial in libel actions. Meaning is a question of fact. Where a case is to be tried by jury a judge is not entitled to withdraw any issue of fact from the jury unless it is one that is unfit to be submitted to them. This part of PD 53 and its predecessor (RSC O 82, r 3A) enabled parties to obtain a ruling the effect of which was that the case would not go before a jury, because no jury properly directed could find the words to bear the meaning complained of, or to bear any meaning defamatory of the claimant.

It is nowadays unusual if not exceptional for parties to resort to this provision. More common by far is an application for the trial of meaning as a preliminary issue. That is possible nowadays because the norm since the enactment of the Defamation Act 2013 is trial by judge alone: see Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB) [2015] 1 WLR 971. Where there is no prospect of a trial by jury it is clearly more desirable for the judge to make a final determination of the issue of fact after a trial, rather than give a threshold ruling of a kind which would be apt if the case was to be tried by jury. It will be rare for such a threshold ruling to serve any useful purpose, and in many cases resort to that process will simply risk a waste of time and money. The point is made in the White Book, as observed in Al Alaoui v Elaph Publishing Ltd [2017] EWCA Civ 29 [2017] EMLR 13 [27] (Simon LJ). See Civil Procedure 2017 n 53PD.32. See also Gatley on Libel and Slander 12^th ed at 30.14. It is not easy to see a good reason in the present case for invoking this procedure, rather than the jurisdiction to try meaning as a preliminary issue.

That said, where parties invite the court to make such a ruling the court should not necessarily be deterred from doing so. Where both parties are represented it may, depending on the circumstances, be possible to bypass the application under PD 53 and proceed directly to a trial of the issue. In this case, however, I have borne in mind that Mr Alsaifi is a litigant in person against whom an application has been made under PD 53, and who has responded with his own cross-application for a threshold ruling. He was only alerted to the considerations I have mentioned when I raised the matter at the hearing. I concluded that in those circumstances it would be unfair to him to change the nature and basis of the hearing "on the hoof".

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."

In this case, both parties have urged me to consider the nature of the readership, Mr Harding asserting that readers would be legal specialists and Mr Alsaifi pointing out that the Article is available to a wider audience than that. Mr Harding has placed particular emphasis on principle (5), which of course requires the court to look at the context in which the offending words appeared. For his part Mr Alsaifi has stressed the room for loose thinking, and reading between the lines, that form part of principle (2). In view of what I have said above about the approach the Court should take I would also highlight principle (3). The court should 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).

I add that 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.

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."

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.""

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 (above) at [28]-[30]. See also Gatley on Libel and Slander 12^th ed at 30.7 and the further cases there cited.

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.

Application of principles

Mr Alsaifi's approach to the pleading of the words complained of is unorthodox and unhelpful. To atomise the wording of the publication as he has done, picking out individual words or phrases, is artificial in the extreme. It runs counter to the principles I have identified. The right approach in a case such as the present would be to set out the entire Article, highlighting the words of which complaint is made, as I have done above. Mr Alsaifi's approach to the pleading of defamatory meanings is also flawed. It is a cardinal principle of the law of meaning that a given set of words can have only one defamatory meaning, that is to say, they cannot bear meanings which are at variance with one another. This is the "single meaning rule". The pleading of meaning in this case, with a variety of meanings of differing shades, is unhelpful and not conducive to the overriding objective.

These flaws would tend to point towards an order that he reformulate his case in more complete accordance with principle, and the CPR. There is a third manifest defect in the pleading of Mr Alsaifi's case: the plea asserting innuendo meanings is misconceived, because the particulars are incapable of amounting to "innuendo facts". They are not facts which existed at the time of publication which are not common knowledge, which were known to some readers, and would or might have affected the meaning such readers took from the words complained of. Rather, Mr Alsaifi seems to have taken the mistaken view that facts which tend to show that the Article contained false statements of fact, or misrepresentations, can stand as "innuendo facts". They cannot. The plea of innuendo meanings is clearly hopeless and liable to be struck out under CPR 3.4(2)(c). That is something I would be minded to do of my own initiative, at the appropriate time.

Despite all of this, I conclude that the case that Mr Alsaifi seeks to advance is sufficiently clear for present purposes. It is in my judgment properly and fairly to be treated, for those purposes, as asserting a series of cumulative or alternative natural and ordinary meanings, and that those meanings are defamatory. My task is to assess whether any of those meanings, or any other defamatory meaning about Mr Alsaifi, might be conveyed to an ordinary reasonable reader by the words of which he complains.

I find without hesitation that the answer is yes. To that extent, Mr Amunwa's application fails and that of Mr Alsaifi succeeds. The account of the proceedings contained in paragraphs [7] and [8] of the Article is capable, in the context of the article as a whole, of bearing meanings to the effect that Mr Alsaifi, in his capacity as a lecturer at a further education college, sent inappropriate emails to a 17-year old in his class, made inappropriate physical contact with her and tried, unsuccessfully, to enter a relationship with her. He was thereby guilty of unacceptable professional conduct (or professional misconduct) towards a child who was his pupil. In my judgment meanings to that effect are capable of being drawn from the original and the amended versions of the Article, and it matters not whether the word used was learner or pupil. These conclusions may well be consistent with, or to similar effect to the claimant's pleaded meaning that he "has unacceptable professional conduct within adult's learning settings." My version better encapsulates the defamatory sting, it seems to me.

The argument on meaning that has been advanced for Mr Amunwa is in part founded on a misconception. Mr Harding has submitted that Mr Alsaifi's case is "utterly misconceived" because "If the claimant were right, hardly anyone could write up a discussion of a reported case without fear of defamation." He contends that "The article does not say that the Claimant did wrong" but "repeats what was said in that judgement and then comments on it." Those submissions overlook the repetition rule. The NCTL made findings of misconduct; Andrews J concluded that those findings were sound; and the article repeated what the Judge said on the matter. The repetition rule applies. The argument also confuses two separate principles. As Gatley points out at 11.19, the repetition rule does not mean that a defendant may not rely on a defence of privilege. "So if D's statement that 'A said that C murdered X' was part of a fair and accurate report of judicial proceedings D would be protected by absolute privilege …"

This said, there is a great deal in Mr Alsaifi's pleaded meanings that in my judgment fails the legal tests I have identified, and fails so clearly that I can and should rule out the possibility of such meanings being upheld at a trial. I would not permit any of the pleaded case save perhaps for the few words I have already identified, though it remains my view that my own version is to the same effect but clearer. To that extent, Mr Amunwa's meaning application succeeds and that of Mr Alsaifi fails.

The upshot of these conclusions is that, other things being equal, I would strike out the whole of the meanings complained of and order the substitution of wording along the lines that I have set out above. I must however determine whether any such amended claim would have any real prospect of success, or should be allowed to go to trial for some other reason.

Summary disposal

Principles

Mr Amunwa's application is made in reliance on s 8 of the Defamation Act 1996. This is another slightly antique procedural weapon which is little used today. It allows the Court to deal with hopeless claims or defences in various ways. One of these is to "dispose summarily of the plaintiff's claim" by dismissing it "if it appears to the court that it has no realistic prospect of success and there is no reason why it should be tried." That form of wording is familiar to lawyers from CPR 24.2, although there are some small differences. Section 8 was introduced because, at that time, defamation was outside the scope of the general powers to enter summary judgment. Now, causes of action for defamation are within the scope of those powers. Since that change in the law all or most applications for summary determination of such claims are made under Part 24. One reason for that is that Part 24, unlike s 8, permits summary determination of individual issues in a case. Section 8 has some remaining uses, but it has been largely left to gather dust.

For present purposes, the application may be treated as largely identical to a Part 24 application. Accordingly, I must ask myself whether the claimant has any realistic as opposed to fanciful prospect of success at a trial. Even if I find it does not, I must ask myself whether there is any reason why it should be tried. I note that for this purpose the reason for trial need not be a "compelling" reason, as is necessary under Part 24. I should not conduct a mini-trial. I remind myself that the test is one of unreality, and bear in mind the possibility that the evidential picture might change. But if there are issues that can properly be determined summarily notwithstanding all these points I should proceed to do that.

In his written skeleton argument argument, Mr Harding submitted that the claimant's case has "absolutely no prospects of success whatsoever" because the defendant has "numerous potential defences" which are "unarguable from the claimant's perspective". He identified absolute privilege, qualified privilege, public interest and honest opinion, all set out in the witness statement of Mr Ramdarshan. That witness statement also asserted that the claim would be bound to fail for want of proof of serious harm to reputation.

In the course of oral argument, however, the focus shifted to the defences of reporting privilege and honest opinion. Mr Harding was inclined to agree that if he could not show that his client was bound to prevail on the basis that the words included a fair and accurate and therefore privileged report of the Appeal Judgment, it was hard to see how he could prove that the Court would be bound to uphold a public interest defence under s 4 of the 2013 Act. I think it was wise also not to press the case on serious harm. The imputations which the words complained of are capable of conveying are not trivial. It seems to me that without more a court might be prepared to infer that their publication online would cause harm to Mr Alsaifi's reputation of a kind that was serious.

Reporting privilege

Privilege, also known as immunity, against claims for libel in respect of court reports is provided for by two sections of the Defamation Act 1996. By section 14(1) "A fair and accurate report of proceedings in public before a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged." The section applies to any court in the United Kingdom. The proceedings in this case were in public. So this privilege is applicable if and to the extent that the Article was a fair and accurate report published "contemporaneously" within the meaning of s 14(1).

Section 15 and paragraph 2 of Schedule 1 to the 1996 Act provide for the defence of qualified privilege to be available in respect of "A fair and accurate report of proceedings in public before a court anywhere in the world." This privilege is qualified or limited in two respects. Section 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 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 that 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 the Article was a fair and accurate report of the Appeal Judgment, but was not published "contemporaneously" with the proceedings within the meaning of s 14(1), so long as it was not published maliciously.

Fairness and accuracy. The applicable principles were not the subject of any argument in writing on the part of Mr Harding, or any exploration before me at this hearing. Mr Alsaifi did submit extensive written argument on the applicable principles. They are well-established and familiar, and I have also been reminded of them in the course of argument in a second case brought by Mr Alsaifi in which I heard argument a few days after the hearing in this case, and in which I have been preparing a reserved judgment at the same time as the present one.

The principles are clearly stated in the following authorities, all of which I have considered in the course of preparing this judgment: Cook v Alexander [1974] 2 QB 279 (CA), Tsikata v Newspaper Publishing [1997] 1 All ER 655 (CA), Ismael v News Group Newspapers [2012] EWHC 3056 (QB) and Qadir (above). Key points for present purposes are that fairness and accuracy are matters of substance not form. A report does not need to be verbatim. It may to an extent be impressionistic. Fairness is to be tested by reference to the impact on the claimant's reputation. Minor inaccuracies will not deprive a defendant of the privilege.

I have also had regard to Mr Alsaifi's skeleton argument on this issue, which cites the following well-known authorities: Turner v Sullivan (1862) 6 LT 130, Kimber v Press Association [1893] 1 QB 65 at 71 (Lord Esher MR), Adam v Ward [1917] AC 309, Grech v Odhams Press Ltd [1958] 2 QB 275 at 285, Kingshott v Associated Kent Newspapers Ltd [1991] 1 QB 88 at 98, Maccaba v Lichtenstein [2003] EWHC 1325 (QB) at [12], Curistan v Times Newspapers Ltd [2008] EWCA Civ 432, [2009] QB 231 and Henry v BBC [2005] EWHC 2787 (QB). The main points made by Mr Alsaifi by reference to this body of authority are that the article is not a report but a commentary; that it misrepresents the effect of the proceedings by omission; and that it includes extraneous material which is not privileged and is intermingled with reporting, so as to defeat the privilege.

I recognise that the burden lies on the defence to satisfy me that the case meets the standards I have identified above. But I have before me all the evidential materials that are, or could be, relevant to the determination of this issue. Those materials are available to Mr Alsaifi, who has had a full and fair opportunity to address the relevant issues. I take account of Mr Alsaifi's status as a litigant in person. But I regard his Particulars of Claim, witness statement and skeleton argument as setting out very fully the grounds on which he asserts that the Article's account of the Appeal Judgment was inaccurate or unfair, so far as Mr Alsaifi is concerned. I have explored with him in oral argument the grounds he seeks to rely on in answer to the defence case on this issue. I am satisfied that I have read and heard sufficient argument from both sides on that question to identify the points at issue, and to allow a sound conclusion to be reached.

Mr Alsaifi's main points on the facts are that the Article omitted a number of matters which he considers it should have included in order to be accurate and, more importantly, fair to him. Among these were the favourable references to him contained in Andrews J's judgment. He has submitted that it was misleading and unfair to refer to the allegation of physical touching, when the Appeal Judgment did not focus on that, but on the emails. It was misleading and unfair, he says, to refer to him as a Further Education teacher who might be in contact with children as young as 16, when the young woman was 17 and his evidence had been that he was unaware of this. He had not taught children in the preceding years, and this was not reflected in the Article.

Applying the principles to which I have referred, I have no doubt that if this matter went to trial the Court would hold that the words complained of in paragraphs [7], [8] of the Article are part of a fair and accurate report of the Appeal Judgment. Paragraph [15] second blob first sentence is also fair and accurate report, and the contrary is not arguable. The same is true of the additional wording added to paragraph [7] on 10 August 2016. It was accurate and fair to Mr Alsaifi to report that the Appeal Judgment said he was "a lecturer with a further education college": see [4]. The account of the allegations made against him was an accurate and fair reflection of what the Appeal Judgment said at [32] and [42]; it recorded the allegations that were made and upheld. Although that paragraph refers to what was put to Mr Alsaifi by the NCTL and the initial allegations were slightly different this is not an inaccuracy, still less an unfair one. According to the Appeal Judgment "the matter was investigated internally", as reported in the Article: see [7]-[19]. Any differences between what was investigated then and later are immaterial.

Mr Alsaifi is incorrect to argue that before Andrews J the focus was exclusively on his emails. The panel upheld all but two of the allegations made against him. Andrews J upheld all the panel's findings as "unimpeachable". The Judge was plainly concerned about conduct that she was satisfied had been proved. The reference in paragraph [8] to lecturers "who may be in contact with children as young as 16" was not aimed at Mr Alsaifi, but in any event it fairly reflected the relevant part of the Appeal Judgment, and in particular paragraph [66], where Andrews J referred to the claimant's behaviour as "conduct of a type that would trigger alarm in the minds of those who were concerned to protect sixth formers or teenagers." The passage complained of in paragraph [15] fairly and accurately reflects the section of the Appeal Judgment to which it expressly refers.

Strenuous though his efforts have been, Mr Alsaifi has not persuaded me that any of the points he has put forward afford any arguable answer to the privilege defence. He simply could not hope to rebut that defence at a trial. It is true of course that there were aspects of the Appeal Judgment that were not referred to or quoted in the Article, some of which were favourable, or not unfavourable, to Mr Alsaifi. But a reporter is entitled to be selective, particularly when focusing on a point or points of law to which only parts of the judgment are relevant. These paragraphs of the Article fairly and accurately represented the gist of the judgment, including the key passages and portions of the Appeal Judgment, and their presentation was not materially unfair to Mr Alsaifi. No other conclusion could realistically be arrived at, however much more time, care and attention might be paid to this issue at a trial.

I can see no reason why this issue should proceed to a trial. Rather the contrary. To allow an unrepresented litigant to proceed to a trial at which he is bound to lose is in the end unfair. A trial would not be to anyone's advantage. What it would certainly do is to increase the scale of the costs, and thus expose Mr Alsaifi to even greater financial risk than he already faces.

Even so, I could not grant relief under s 8 of the 1996 Act unless I was satisfied that the defence was bound to make out all the elements of the defence of privilege.

Published contemporaneously. Again, nothing was said about this issue in Counsel's skeleton argument and there was no discussion of the meaning of this term in Mr Alsaifi's skeleton argument or at the hearing, but I am reasonably familiar with the authorities. I have reminded myself of them in preparing this judgment. I have taken care to consider any points that might be made on behalf of Mr Alsaifi were he represented. Having done so, my conclusion is that the requirement of contemporaneity is probably not satisfied in this case. At all events, I cannot be sure that the defendant would succeed on the issue at a trial.

As pointed in Gatley at 13.37, "There are only two decisions on the meaning of the word 'contemporaneously' in s 14 … and neither provides a complete definition." Gatley proposes this interpretation: "As nearly at the same time as the proceedings as is reasonably possible having regard to the opportunities for preparation of the report and the time of going to press or making the broadcast." That is a perfectly arguable interpretation. Allowing the most generous margin for those factors there is a realistic prospect that a Court would reject the contention that this report, published a matter of weeks after the Appeal Judgment was handed down, was published "contemporaneously". I would also hold, if necessary, that this is an issue deserving of fuller argument and for that reason summary disposal is not appropriate on this ground.

Malice. Given my finding on the issue of contemporaneity, this question arises for decision. The test for malice in this context, though not explored in oral argument, is well-known. Mr Alsaifi's skeleton argument contains extensive citations from the authorities, including Nevill v Fine Arts and General Insurance Co Ltd [1895] 2 QB 156, 170 (Lord Esher), Edmondson v Birch & Co Ltd [1907] 1 KB 371 (Collins MR), Horrocks v Lowe [1975] AC 135 and Halford v Chief Constable of Hampshire [2003] EWCA Civ 102 [39] (Sedley LJ). The core point is that a claimant must prove that the defendant had a dominant improper motive: see Horrocks v Lowe and the discussion in Gatley paras 17.1 ff. The test is notoriously hard to satisfy in practice. 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.

Mr Alsaifi has also reminded me of the extensive authority for the propositions that a plea of malice requires a high degree of particularity, and that 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)

None of this very extensive citation has been of any great assistance in resolving this issue. It is unnecessary to examine in detail what has been said on this topic in the extensive written materials before me. In summary, Mr Alsaifi's case is that Mr Amunwa published the Article "for his own interest and advantage" to market himself. This, he suggests, involved a desire to achieve a personal advantage unconnected with the duty or interest that gives rise to the privilege. He asserts that Mr Amunwa was at best reckless, not caring whether the offending statements were true or false. He relies in support of these arguments on post-publication conduct. The conduct relied on is the addition of a line to the article, and the failure to withdraw the article or to apologise "even when it was clear that he was mistaken".

I can see no prospect of a court accepting these contentions at trial. Indeed, they appear to me to include the kind of formulaic assertion that has so often been deprecated in the authorities. There is a marked absence of the kind of detailed factual case that the court requires before concluding that a tenable case of malice has been put forward. In the end this was, to the extent described above, a fair and accurate court report prepared and published by a barrister as part of an Article reporting and commenting on issues of law. Mr Amunwa had no connection with the case, and there is no basis on which to suggest that he had any dominant improper motive. On the face of things he was an independent reporter and commentator, and nothing that has been put before me indicates any basis on which that first impression might be undermined. It cannot be suggested that he held any personal animus towards the claimant. There is no realistic prospect that Mr Alsaifi might establish that the report was published maliciously, so as to defeat the qualified privilege afforded by the 1996 Act. There is no reason why this issue should go to trial. Again, this would only increase costs, to no useful purpose.

Conclusions on privilege. It follows from these conclusions that Mr Alsaifi has no real prospect of succeeding at a trial in a claim that relies on the words complained of in paragraphs [7], [8] and [14] of the Article, including the revised version published on and after 10 August 2016.

The remainder of the words complained of

That leaves for consideration the following:

(1) the words complained of in paragraphs [1], [2], [3] of the Article, where the issues are introduced;

(2) the four words "the protection of children" in paragraph [6] referring to the decision in Zebeida;

(3) the words complained of in paragraphs [9], [10] and [13] under the heading "Mind the gap".

In my judgment none of these words could reasonably be considered to contain or to contribute to any meaning defamatory of Mr Alsaifi. The defamatory meanings which I have held the words might be held to bear can only arise from the passages in the Article that refer to his case, and to the Appeal Judgment. As to the remaining words complained of, these do form part of the context for the report of Mr Alsaifi's case but they are not in my judgment capable by themselves of conveying any meaning defamatory of him.

(1) The introductory section is not about Mr Alsaifi. Paragraphs [1] to [3] are an account of the regime, and the way it is or was operated by NCTL. No reasonable reader would take those words to refer to or to bear any meaning about Mr Alsaifi. All of this is true, even bearing in mind the need to read and consider the Article as a whole.

(2) Paragraph [6] is plainly about the Zebeida case. It is not about Mr Alsaifi, does not refer to him expressly or implicitly, and could not reasonably be considered by any reasonable reader to be a statement of and concerning him. It is context for defamatory statements about him in the two paragraphs that follow but it is not part of the defamatory statement itself.

(3) The words that appear under the heading "Mind the gap" are not about Mr Alsaifi, either. They are a commentary on the regime for the protection of children which Parliament has put in place.

If I am wrong in these conclusions, and in my conclusions about meaning, then the most that could be said, in my judgment, is that the words in the "Mind the gap" section contain, in context, an implicit comment to the following or similar effect: that Mr Alsaifi was guilty of professional misconduct involving a child which should have attracted investigation and sanction; and that the outcome of his case shows that there is a concerning gap in the legal regime for protecting children in educational settings.

This is plainly comment. It is manifestly comment based on the factual scenario presented in the Appeal Judgment. Any reader would understand that. Such imputations would inevitably be held defensible as honest opinion pursuant to s 3 of the Defamation Act 2013, which provides so far as relevant as follows:

"Honest opinion

(1) It is a defence to an action for defamation for the defendant to show that the following conditions are met.

(2) The first condition is that the statement complained of was a statement of opinion.

(3) The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.

(4) The third condition is that an honest person could have held the opinion on the basis of—

(a) any fact which existed at the time the statement complained of was published;

(b) anything asserted to be a fact in a privileged statement published before the statement complained of.

(5) The defence is defeated if the claimant shows that the defendant did not hold the opinion.

….

(7) For the purposes of subsection (4)(b) a statement is a "privileged statement" if the person responsible for its publication would have one or more of the following defences if an action for defamation were brought in respect of it—

…

(c) a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege);

(d) a defence under section 15 of that Act (other reports protected by qualified privilege)."

The statement with which I am hypothetically concerned is one that plainly satisfies the first and second conditions. The third condition is clearly satisfied on the basis of the fair and accurate report contained in paragraphs [7] and [8] of the Article, which is privileged under s 15. On the basis of the facts as there reported, the opinion under consideration is plainly one that an honest person could have held. There is, for the reasons I have given, no prospect that the claimant might show that Mr Amunwa did not hold the opinions he might (on this assumption) be held implicitly to have expressed. The expression of opinion, if such there was, was also on a matter of public interest. That was a requirement of the corresponding defence at common law, but is not a requirement of the statutory defence.

It is for all these reasons that the defendant's application for summary disposal is granted.

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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Alsaifi v Amunwa [2017] EWHC 1443 (QB) (27 June 2017) URL: http://www.bailii.org/ew/cases/EWHC/QB/2017/1443.html Cite as: [2017] EWHC 1443 (QB), [2017] 4 WLR 172, [2017] WLR(D) 508