The three degrees, suspicious minds and hearsay


Jameel and another v Times Newspapers Ltd, CA, 21 July 2004; [2004] ECWA (Civ) 983



This recent Court of Appeal decision relates to a libel claim over a Sunday Times article that said ... Ay, there's the rub. Just what did the article mean?


This noteworthy decision reaffirms the principles of the three degrees of defamatory meaning in cases where it is alleged that the claimant is under investigation by the authorities. It also addresses the extent to which a poisonous defamatory allegation can be neutralised. And it considers when a company can sue for libel over allegations about its proprietor.


An article entitled 'Car Tycoon "linked" to Bin Laden' referred to Yousef Jameel and the British business Hartwell, which his family had bought in the 1990s. It said that families of the victims of the 11 September 2001 terrorist attacks had named Mr Jameel in US court papers - along with another 200 or so defendants - as having helped to fund Osama Bin Laden and al-Qaeda. Further references to the claimants were included. For example, Mr Jameel was said to have made generous donations 'for rescue and help of Muslims in Kosovo'.


He was added as a defendant to the US proceedings when the name 'Yousef Jameel' was found on 'The Golden Chain Document', seized by Bosnian police from a charity and which listed wealthy individuals who could be asked for money. The list had been used as evidence against another charity, the article said, accused of conning donors and misusing their cash, which they allegedly funnelled to al-Qaeda.


Mr Jameel and Hartwell both sued. Pleading his proposed highest meaning, Mr Jameel's case was that the article meant that there were 'serious and substantial grounds for suspecting, and/or which may prove, that the claimant was associated with Osama Bin Laden in connection with terrorism and that he helped fund the training of the terrorists who carried out the September 11 atrocities'.


Hartwell's case was that the article meant that its funds had been so utilised. The defendants argued that at the very most the article bore a lesser meaning that there were grounds for inquiry or investigation and that this could be justified by the various facts included in the article. The article was not, they said, defamatory of the company. They applied to strike out both claims. Before Mr Justice Gray they were successful with regard to Hartwell's claim with the judge allowing Mr Jameel's claim to proceed but on the lesser, 'level (iii)' defamatory meaning. Both claimants appealed the ruling.



Defamatory meaning is key to a libel action. In Lewis v Daily Telegraph [1964] AC 234, over an article entitled 'Fraud squad probe firm', Lord Devlin recognised that there could be three levels of meaning: guilt (level i), grounds to suspect (level ii) and grounds for investigation (level iii). The defendant who runs a justification defence to the highest level (i) meaning must prove guilt. The level (ii) meaning must be supported by particulars that are not hearsay and that focus on the claimant's conduct bringing suspicion on himself; the defendant cannot argue that there must be reasonable grounds to suspect the claimant is guilty because of the mere fact of the investigation. But the hearsay fact of the inquiry may be sufficient to prove the third and still lesser level (iii) meaning.



The claimants argued that the hypothetical reader - who is not naive but equally not unduly suspicious - could infer from the article that Mr Jameel had drawn suspicion on himself by his own actions that warranted investigation, taking the meaning to a level (ii) rather than simply the allowed level (iii).


In his leading judgment, Lord Justice Sedley held that it was not impossible that the jury might find either of the two lower meanings. 'The distinction between the two levels is a fine one,' he said. 'It does appear to me that the present article, fairly read, is arguably capable of conveying to a reasonable reader not just that grounds exist for inquiring into Mr Jameel's possible role in funding terrorism but that grounds exist for suspecting that this is what he has done'. It was for the jury to decide, and accordingly, he ordered that the claimant's higher pleaded meaning be reinstated.


At present, claimants need only plead the highest of their meanings, and do not need to set out alternatives for consideration. But Lords Longmore and Kay agreed with Lord Justice Sedley's view that it was 'high time' for all proposed meanings now to be pleaded in the alternative. This might obviate the need for detailed examinations in interim hearings and is certainly what the court will expect in future.


An article will not be defamatory if the allegation made is sufficiently antidoted. The court was asked to consider whether the denials published sufficiently antidoted the poison in this article. Lord Justice Sedley held that 'a publication which advances and then purports to dispel a defamatory allegation can be acquitted of any possible defamatory meaning only in the very clearest of cases. Mud, in short, is likely to stick, and it is for the jury to say whether it has done so'. Although the article contained 'significant material' capable of dispelling the suggestions made, it had not done so 'so unequivocally... as to constitute an incontestable antidote for whatever poison a jury may detect'.


The court rejected the submission made by counsel for the claimants, that 'a slur on an individual closely connected with a trading corporation is capable of defaming it, irrespective of any allegation of corporate misconduct'. It would take 'a very suspicious-minded reader' to find such an implication against the company, according to Lord Justice Sedley.


To bring this analysis full circle, we return to the 'important and apparently open question of law' regarding the evidence required to justify a level (iii) defamatory meaning. But to the apparent frustration of the court this was not pursued by either party. Where a claimant's own conduct is brought into question in a level (ii), 'grounds to suspect' meaning, the repetition rule provides that the defendant cannot justify the allegation merely by bringing hearsay evidence that there must be grounds to suspect as the claimant is being investigated. He must show that there are objectively reasonable grounds to suspect the claimant.


The outstanding question of whether that applies equally to level (iii) meanings, as Mr Justice Gray had allowed the defendants to rely in the future trial on hearsay evidence, was not before the Court of Appeal. But the court did raise the issue as one in need of further consideration.


Given a level (iii) 'grounds to investigate' meaning does not have to be based on any grounds for suspicion, only grounds for inquiry, it would appear to infringe against the repetition rule. The potential consequences of this were considered significant by the court: 'So long as a slur on an individual's reputation is cast in level (iii) terms, it can be justified by reliance on the bare fact of assertions made by others, without any need to make them good,' suggested Lord Justice Sedley. To do that would be to place a 'premium' on formulating slurs in this way.


This case has helpfully reaffirmed the position on meaning, on poison and cure and on company libels. It has also highlighted the potentially significant issue of a dilution of the longstanding repetition rule. But clarification on that will have to await the next appropriate case.



By Amber Melville-Brown, David Price Solicitors & Advocates, London