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February 24, 2021

Loser to pay costs in Shahbaz vs Mail case: UK judge


February 24, 2021

LONDON: The London High Court judge Justice Nicklin has ruled that the ultimate loser in the defamation case between Shabaz Sharif/Imran Ali Yousaf vs Associated Newspapers Limited (ANL) will pay the costs of the winning party, according to the judgement of the defamation meaning trial obtained by The News.

The judge determined in detail at the defamation meaning trial (for the determination of natural and ordinary meaning) how Mail Online and Mail on Sunday’s article by David Rose levelled serious allegations of money laundering and embezzlement against the former Punjab Chief Minister and his son-in-law and declared the guilty of wrongdoing.

Drienne Page QC and Richard Munden had appeared before the court on behalf of Shabaz Sharif; Victoria Simon-Shore appeared for Imran Ali Yousaf and Andrew Caldecott and David Glen represented the ANL.

Justice Nicklin has written that he has applied the law relevant to Koutsogiannis -v- Random House Group [2020] 4 WLR 25 [11]-[12] and Sheikh -v- Associated Newspapers Ltd [2019] EWHC 2947 (QB). For the both online and print version of the articles, the court looked at around 70 points which were disputed and reported to the court by Shahbaz Sharif.

Justice Nikclin has written in the decision that the starting point is there can be no doubt that the focus of the article is upon Shahbaz Sharif. He wrote the Mail identified him as the “poster boy” and the "top Pakistani politician" but the headline was in the form of a question but that is not, itself, determinative.

The judge wrote that the following words in their natural and ordinary sense affected Shahbaz Sharif: "Mr Sharif was party to and the principal beneficiary of the money laundering of tens of millions of pounds which represented the proceeds of his embezzlement, whilst he was the Chief Minister of Punjab, of substantial sums of public money, including a not insubstantial sum of British public money that had been paid to the province in DFID grant aid and other corrupt payments received in the form of kickbacks or commission from government-run projects."

Justice Nicklin wrote that the natural and ordinary meaning of the article affected Mr Imran Ali Yousaf as follows: "(1) Mr Yousaf had received £1 million which, as he knew, had been embezzled from funds from Pakistan's Earthquake Relief and Reconstruction Authority, which funds were meant to provide relief to the victims of the 2005 earthquake; and (2) there are strong grounds to suspect that Mr Yousaf was the beneficiary, as part of Mr Sharif's wider family, of millions of pounds of laundered payments which had been embezzled from Pakistan's public funding, including by kickbacks and commission, and including funds related to public development and welfare projects, and that Mr Yousaf knew that the monies received by him had been embezzled or stolen at the time of receipt."

Justice Nicklin determined the chase level 1, the highest form of defamation, and 2 in the following words: “For the reasons I have given, both contain Chase level 1 meanings. The meaning in Mr Sharif's case is entirely Chase level 1 and in respect of Mr Yousaf, the first meaning is Chase level 1. For the reasons I have explained, the second part of Mr Yousaf's meaning is Chase level 2. Overall, his meaning is a product of the overall impression of the article as a whole and the proper application of the repetition rule as it applies to this article. The allegations made against both claimants are clear and there is an insufficient antidote to lead the ordinary reasonable reader to conclude that the article was suggesting against them any grounds or even strong grounds to suspect, save in respect of meaning (2) in respect of Mr Yousaf.”

The judge added: “I have included in the meaning in Mr Sharif's case elements that capture the important factors that the embezzled funds included a not insubstantial sum of British grant aid and also the separate element, which is clearly present in the article, of money also obtained through kickbacks and commission.

The judgement added: “In respect of Mr Yousaf, I have made clear in the meaning that the allegation is that Mr Yousaf knew that the funds had been embezzled. If that is not made plain in the meaning, it would leave open a non-defamatory interpretation that he had unwittingly received £1 million. A reader would have to be exceptionally naïve to think that the article alleged no more than that in respect of Mr Yousaf. The meaning should therefore make that clear. In Mr Yousaf's case, I have reformulated the meaning in relation to (1) and re-cast it in a form that is, in my view, consistent with the allegation being made in [48]-[51]. Meaning (2) largely reflects the meaning that was advanced by the defendant.”

Justice Nicklin also decided on the issue of costs. Shahbaz Sharif’s lawyer Ms Page QC had submitted that the Court should make an order in favour of Mr Sharif and direct that the defendant should pay the costs as, she submitted, that claimant has been largely successful in the sense that a larger number of elements of his meaning have been found in the court's meaning. She argued that this justifies the court recognising that Mr Sharif is the 'winner' and that the starting point is that the costs should follow the event.

Justice Nicklin noted that the meaning applications are a preliminary issue trial. “That means that determination of the issue is being advanced. Ordinarily, meaning would be determined as one of several issues to be resolved at the final trial.”

The judge noted that a claimant could be wholly successful on the issue of meaning, yet ultimately lose the action if the court found for the defendant on a substantive defence.

Justice Nicklin added: “I do not know ultimately who is going to be successful in this litigation at any trial. Even if it were possible to detect a clear 'winner' on the issue of meaning in this case, there is still a potential unfairness by making what is, in effect, an issue-based costs order at this stage. Although that party might have 'lost' the meaning issue, the party may yet ultimately 'win' at trial. In the ordinary course, therefore, the costs of determination of the preliminary issue of meaning should follow the ultimate event; the result of the action.”

The judge wrote that Mail published a “very general and unfocused” rebuttal by Suleman Shahbaz Sharif about the allegations levelled against his father and family.

At the defamation trial, lawyers for Daily Mail said they were not accusing Shahbaz Sharif and Imran Ali Yousaf of money laundering and had no “actual evidence” of their involvement in corruption.