High Court rejects Ed Husain’s application for a Preliminary Hearing on serious harm

In a Judgment handed down by DHCJ Susie Alegre in the High Court on Friday, 28 June 2024, Ed Husain’s application for a trial of preliminary issues (“TPI”) has been rejected.

Background

Our Client, Miqdaad Versi (“the Claimant”) is the former director of media monitoring at the Muslim Council of Britain and is a campaigner in his own right against Islamophobia..

Mohamed Mahbub Husain, better known as Ed Husain (“the Defendant”), was one of the founding members of the now defunct and widely criticised “counter terrorism think tank”, the Quilliam Foundation. Mr Husain is also a columnist for the conservative weekly publication, The Spectator, and has also written for the Jewish Chronicle.

In 2021, Mr Versi commenced defamation proceedings against Mr Husain arising from a Tweet on what was then called ‘Twitter’ – further details about the claim can be found in our earlier article on this case.

First TPI Hearing

There are essentially two requirements which must be proved in all defamation, claims: (1) is to prove that the meaning of the words complained of are defamatory; (2) that the words caused or were likely to cause serious harm.

A TPI hearing on meaning took place on 17 November 2022 following which, in a Judgment dated 03 March 2023, the High Court found that the words complained of by Mr Versi was defamatory at common law.

Application for a second TPI

A year later, on 8 March 2024, the Mr Husain’s representatives applied for another TPI, this time on the issue of serious harm.

The Hearing

The application was heard on 7 June 2024 at the High Court.  Mr Versi was represented by Mark Henderson of Doughty Street Chambers.

Our position was that the approach taken by the Defendant was a highly unusual one. Guidance on the use of TPIs in defamation proceedings is provided for in the King’s Bench Guide 2024 (and 2023) and the White Book 2024 makes clear that the court will be slow to direct a preliminary issue as to serious harm, disputes as to serious harm should ordinarily be left to trial, and that if the defendant contends that a claim should not be allowed to proceed to trial as no serious harm can be proved, then in the ordinary course they should apply for summary judgment under CPR Part 24, which Mr Husain failed to do. In addition, we stated that had they really had concerns about Mr Versi being able to prove serious harm which justified the issue being considered  before trial, then they ought to have asked for this to have been considered when the first TPI took place in November 2022 when the issue of meaning was considered, which again they failed to do.

The Judgment found in  favour of Mr Versi and made the following findings:

• The Court upheld the guidance on which the Claimant relied, as set out above.;

• The Defendant “failed to point to any clear authority to show that there had been a shift in the procedural approach which could justify a TPI on serious harm in these proceedings” [para 25];

• A TPI on serious harm “would have the effect of a summary judgment by the back door, shifting the burden of proof onto the claimant”. The appropriate route therefore would have been for the Defendant to make an application for summary judgment if they wanted to contest serious harm [para 30].

• That there is a significant overlap in the evidence that might be required to demonstrate serious harm in a TPI and the evidence that would be needed at trial in relation to both defences and damages and that this therefore “tips any cost/benefit analysis very heavily against a TPI on serious harm in this case” [para 34].
• That “if the defendant was confident in his case on serious harm, it could be dealt with dispositively by way of summary judgment without the additional risk of binding a trial judge and muddying the evidential waters that would accompany a TPI on serious harm at this stage” [para 41].

The Judge made clear that costs must follow given that “The application in this case was ‘novel’ at best and procedurally misconceived at worst.  In these circumstances, I can see no justification for departing from the general rule and therefore make a costs order in favour of the claimant to be assessed summarily”.

The Judgment can be found here.

Notes

Our extensive experience of acting in high profile defamation cases means that we are particularly well placed to advise clients whose case may reach the public eye, and to advise on associated matters such as reputation management. Zillur Rahman was recently featured as The Times Lawyer of the Week for winning substantial damages in another libel claim. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

For further information or to discuss a potential claim, please contact us on 020 3950 5234 or info@rllaw.co.uk.

-Friday 11 July 2024