From: Neil Foster <neil.foster@newcastle.edu.au>

Sent: Friday 21 June 2024 01:43

To: obligations@uwo.ca

Subject: ODG: UKSC on defamation re prior foreign conviction, serious harm, Jameel

Dear Colleagues;

A very interesting decision from the UK Supreme Court on defamation and abuse of process : Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21  (20 June 2024). There are others on this list with more defamation expertise than me, but I thought it was worth my noting the case. In brief, the plaintiff was a citizen of Bangladesh at the time of the civil war which led to the separation of that country from Pakistan in 1971. He left and came to the UK, and was afterwards tried in absentia by a tribunal set up to prosecute alleged war crimes. He was convicted in a hearing in which he was not really able to participate and which a number of international bodies recognised as unfair. In 2019 the UK Home Office published an official report in which, in a footnote, it was asserted that he was guilty of the crimes he had been charged with before the tribunal. He is suing the Home Office for defamation.

In prior proceedings his claim for defamation was struck out as an abuse of process, the lower courts applying an aspect of that doctrine which says that a collateral attack in civil proceedings on a prior criminal conviction is an abuse of process. The UKSC here (LORD REED, with whom Lord Sales, Lord Hamblen, Lord Burrows and Lord Richards agreed) rule that his claim should be allowed to proceed. The relevant law on abuse of process in this way was held not to apply to a foreign conviction where a fair trial was not held:

[63] In the present case, on the other hand, the claimant was tried in absence before the ICT. He could not realistically be expected to attend the trial or any subsequent appeal, since he faced a real risk of execution. Counsel appointed to represent him was seemingly either unwilling or unable to obtain his instructions.

Another reason for dismissing the claim at the lower level had been said to be that it was manifestly unfair for the Secretary of State to mount a defence of truth when so long had passed since the events. This was justifiably and robustly rejected by the UKSC:

[66] In the present case, the majority of the Court of Appeal considered that it was manifestly unfair for the Secretary of State to have to prove the claimant s guilt, so long after the events in question, in order to establish a defence of truth. I am unable to agree. But for the fact that the courts below reached a different conclusion, I should have regarded the Secretary of State s submission that the claimant s action is an abuse of process because it is difficult for him to establish his proposed defence as unarguable. It is difficult to accept that, if the Secretary of State is unable to establish the truth of his allegations against the claimant, therefore he can defame the claimant with impunity

[68] where truth is pleaded as a defence, the burden lies on the defendant to prove the truth of the defamatory imputation. The burden of proof allocates the risk of an insufficiency of evidence to the defendant. If the Secretary of State is unable to establish the truth of the accusation which the Home Office chose to publish concerning the claimant s conduct more than 50 years ago, that should have been considered before the Report was published.

Finally, another reason offered at the lower level was based on the Jameel principle which is said to allow dismissal of a claim where the action could not achieve anything of value ([74]). Without going into this somewhat tricky area in detail here, the court seemed to say that the introduction of rules around serious harm (in the UK, first by case law and then by statute) had made the operation of this principle a bit less clear, but in any case it did not apply in these facts where the plaintiff was willing to prove that when the report was published he had a good reputation and his reputation had been seriously harmed by this allegation. These comments may well be of interest in Australia where the model defamation legislation, s 10A, now includes a threshold requirement of serious harm . There is also discussion of the circumstances in which publications of a similar imputation by others can be held to have affected the person s existing reputation.

Regards

Neil

NEIL FOSTER

Associate Professor, School of Law and Justice

College of Human and Social Futures,

University of Newcastle, NSW

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

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