QB-2022-002648 - [2025] EWHC 2565 (KB)

This case has attracted considerable interest, in particular among freelance journalists and members of the Pakistani diaspora based in the United Kingdom. It is therefore important to make clear at the outset what this trial is and is not about. In order to understand those matters, it is vital to keep well in mind at all times that the claim is governed by English law, both substantive and procedural. In particular, the English law of defamation is extensive and sophisticated, and it provides a detailed framework for determining issues of the kind which arise in this case, which it is the function and duty of the Court to apply.

The claim is one for libel, arising from the publication by the Defendant, between 14 and 29 June 2022, of material on Twitter, Facebook and YouTube. The Claimant is a former Brigadier who was at that time a Sector Commander and head of the intelligence command of the Pakistan Army’s Inter-Services Intelligence (“ISI”) in Punjab, and he lives in Pakistan. The Defendant is a former Major in the Pakistan Army who became a journalist after taking voluntary retirement from the Pakistan Army in 2017, and he lives in England.

At the time of publication, elections were taking place in (among other places) Punjab. A central, although not the sole, theme of the publications concerned allegations of actual or attempted manipulation of those elections, in which the Claimant was alleged to have been involved. For example, as determined by me on a trial of preliminary issues concerning meaning on 19 and 20 March 2024 and recorded in my Order dated 5 April 2024: (1) the meaning of the second publication complained of is “The Claimant had allegedly had several meetings with Asif Ali Zardari during his stay [in Lahore] to discuss election manipulation” and (2) the meaning of the tenth publication complained of is “The Claimant played a prominent role in regime change and his corrupt practices have made him a billionaire”.

The core elements of the cause of action for libel were described by Warby LJ in Soriano v Forensic News LLC [2021] EWCA Civ 1952; [2022] QB 533at [15] as follows:

“At common law, a cause of action for libel is made out by proof that the defendant was responsible for the publication to one or more third parties of a written statement that bore a defamatory meaning about the claimant. Statute has added a requirement that publication caused serious harm to the claimant’s reputation or is likely to do so: Defamation Act 2013, s 1(1). If this much is established, the burden shifts to the defendant to raise a defence. So defamation remains a relatively simple tort to prove …”

The claim was brought in this jurisdiction on the basis that (i) there was substantial publication of all of the words complained of in this jurisdiction, and (ii) the Claimant has a reputation in this jurisdiction which was occasioned serious harm by publication of all of the words complained of. Each of those matters was disputed by the Defendant, and fell to be decided at the trial. However, no challenge to jurisdiction was made by the Defendant.

By paragraphs 5 and 6 respectively of his Order dated 23 February 2023, Master Davidson ordered (i) that “The Defendant shall make any application challenging jurisdiction, if so advised, by 4pm on 23 March 2023”, and (ii) that there should be a trial of preliminary issues concerning the meaning of each of the publications complained of. By application notice dated 23 March 2023, the Defendant sought (among other things) an Order that his application that there was no jurisdiction to try the claim because the Claimant “has not demonstrated suffering harm in the UK” should be heard before or at the trial of those preliminary issues, or alternatively that paragraph 5 of Master Davidson’s Order should be varied to allow him to pursue his challenge to jurisdiction following exchange of witness statements. The trial of those preliminary issues was heard before me on 19 and 20 March 2024, and resulted in my Order dated 5 April 2024. By paragraphs 5 and 16-22 respectively of that Order, (i) I ordered that the Defendant’s application for the claim to be dismissed for want of jurisdiction on the basis that the Claimant has not suffered serious harm should be determined if and when the Defendant made an application for the claim to be dismissed as an abuse of process, (ii) I ordered that if the Defendant made no abuse of process application, the issue of serious harm should be determined at the trial, and (iii) I gave directions for the determination of an application to have the claim dismissed as an abuse of process if the Defendant should make one. However, he made no such application.

Further, although at least part of the reason why the claim has attracted public interest relates to the suggestion that it is in reality brought, or at least funded, by the ISI and constitutes an example of “Strategic Litigation Against Public Participation” (“SLAPP”), that is not an issue that falls to be determined. In accordance with paragraph 16 of my Order dated 5 April 2024, the Defendant was required to issue any application for the claim to be struck out as an abuse of process by 4 October 2024. However, he did not do so, whether by that deadline or indeed at any time. Instead, contentions were advanced in the Re-Amended Defence dated 9 October 2024, which was settled by Counsel (John Campell) on behalf of the Defendant, that the claim is liable to be dismissed or the Particulars of Claim are liable to be struck out, on the ground (among others) that it is a SLAPP. In addition, the Skeleton Argument of Mr Harding, the Defendant’s Counsel at trial, contended that “this is not a genuine attempt by the Claimant to restore [his] reputation”, that the claim is instead “an effort by the Pakistan Military authorities to suppress dissent and criticism”, that it was unclear “where the Claimant gets the means to finance [the claim]”, and that “This is a SLAPP”. No reasons were put forward as to why the Defendant should be permitted to advance these arguments in spite of his failure to comply with my Order dated 5 April 2024 (which allowed him ample time to advance any abuse of process arguments in an application which would have been heard well before trial in accordance with the detailed directions that I gave, and which, if successful, would have avoided the costs of the trial). In any event, that case was not persisted in at the trial with any conviction. For example, questions were put to the Claimant in cross-examination relating to the funding of the claim. However: he replied that he had been funding the claim; that evidence was left apparently challenged; and Mr Harding made no reference to SLAPP in his closing submissions.

One of the documents to which Mr Harding made reference during the course of the trial is the US Department of State 2023 Report on Human Rights Practices concerning Pakistan. However, I consider that the 2022 Report is more likely to be germane, by way of general background, to the matters that arise for determination in the present trial. The 2022 Report states (among many other things): “While military and intelligence services officially report to civilian authorities, they operate independently and without effective civilian oversight or control. There were reports that members of the security forces committed numerous abuses.” Further: “Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by the government or its agents; forced disappearance by the government or its agents; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government or its agents; … arbitrary detention; … serious restrictions on free expression and media, including violence against journalists, unjustified arrests and disappearances of journalists …; … serious government corruption; …” and “There was a lack of government accountability, and abuses, including corruption and misconduct by security services, often went unpunished, fostering a culture of impunity among perpetrators.”

Nevertheless, this is not a trial about these issues, or the accuracy of that appraisal. Nor is it a trial about the role of the ISI in Pakistan. It is not even a trial about whether the Claimant did or did not act in the manner alleged by the Defendant in the words complained of.

The Defendant’s pleaded case for trial was set out in the Re-Amended Defence. This included a defence of truth in respect of each of the allegations against the Claimant complained of in the Particulars of Claim. For such a defence to be sustainable at the trial, what is required is: (i) recognition that a defamatory allegation has been made and (ii) evidence that the allegation is true, or substantially true: see s2 of the Defamation Act 2013.

No such evidence was adduced by or on behalf of the Defendant. On the contrary, in the Defendant’s witness statement for trial, dated 4 September 2024 (“the DWS”) he stated with regard to the second publication complained of “the content of the Tweet represents my honest opinion and analysis regarding the political dynamics in Punjab, Pakistan” and “It was not my intention to defame [the Claimant], but rather to engage in political discourse and express concerns about the integrity of the electoral process”. That DWS contained evidence to like effect with regard to all the other publications complained of by the Claimant. For example, with regard to the tenth publication complained of, the Defendant stated “It was not intended to make defamatory allegations against the Claimant or to imply any direct involvement on his part in regime change or corrupt practices”. This evidence is contradictory to a case to the effect that “I alleged that the Claimant did X, and that is true”.

Even if, in principle, that evidence could have been countered or made good by the evidence contained in the witness statements of the Defendant’s proposed witnesses for trial, their evidence, also, did not support a defence of truth. None of those proposed witnesses claimed to have any direct knowledge of the misconduct alleged against the Claimant. Indeed, at least one of them (Mr Shaheen Sehbai) was careful to say that he did not know whether the Claimant bore any “personal responsibility” for what he described as “the cruelty that is unfolding in Pakistan” before going on to assert that “Either he should stop it because it is his duty to do so, or he is not doing his duty, and he should resign”. The tenor of these last words, while critical of the Claimant, is far removed from alleging “corrupt practices” or the like, to say nothing of being couched in the language of opinion.

It is correct that the Defendant’s interlocutory witness statements contained statements such as “The words published were not defamatory. They were the truth as relayed to me through my reliable sources”. However, even if it is permissible to disregard the tension between those words and the Defendant’s trial evidence, contained in all the witness statements for trial, a general assertion in those terms is insufficient to provide proper evidential support for a defence of truth to the detailed allegations about which the Claimant complains.

It is also correct that paragraph 2 of the Re-Amended Defence contains a long list of matters which are said to comprise a brief description of the context which is pleaded as being necessary to understand (i) the meaning of the publications complained of and (ii) the defences advanced by the Defendant. This is a mixture of assertions, the evidential basis for which was not made clear. Some are quite general, such as “[The ISI] is used by the army to control the population, politicians, the police, and to target journalists and lawyers who oppose their goals”. Some are more specific, but do not appear to be relied upon as relating to the Claimant’s role within the ISI, such as “The ISI’s C-Wing has an additional sub-cell responsible for the destruction and derogation of opposing political parties and their leadership, including via assassination” – because while it is pleaded that the Claimant was a Sector Commander of the ISI’s Internal C-Wing Punjab, there is no claim that the Claimant was part of, or controlled, the alleged “additional sub-cell”. Some relate to the Claimant, although in terms that do not appear critical or sinister, such as “Since 2021, the Claimant has actively engaged with political leaders from all sides including opposition parties”. Some make positive allegations against the Claimant, although in terms that lack specificity, such as “In the period 2021-2023 the Claimant was actively involved in political manipulation against the PTI in support of the PMLN, and in controlling the superior judiciary in the Lahore High Court so as to deny the PTI fair recourse to the justice system”. Some appear to roll up general allegations and allegations relating to the Claimant, such as “There is a climate of fear in Pakistan politics, for which the ISI and the Claimant are in large part responsible. On 15 August 2022, the Claimant initiated this defamation case against the Defendant in London as a clear act of intimidation against his journalistic work”.

Those matters that relate directly to the publications complained of are contained in paragraph 2(d) of the Re-Amended Defence, which includes the following: “In July 2022, by-elections in 20 seats in the Punjab were held and the ISI, army and corrupt politicians orchestrated a detailed plan of how that was to be rigged against Imran Khan’s ruling party. Having been advised of this by his sources, the Defendant exposed this plan on his news videos and in his tweets on 19 June 2022, 20 June 2022 and 29 June 2022… The Defendant’s sources advised him that his exposure of this plot caused great anger in the ISI and the army, particularly the Claimant and General Bajwa”. This paragraph contains no details of the role alleged to have been played by the Claimant in the rigging of the elections. In contrast, there are specific allegations concerning the Claimant that (i) he was one of those angered by the “exposure of this plot” and (ii) he has brought the present claim for an improper purpose. It is also right to note that the point that the claim has been brought as a “clear act of intimidation” is stated as fact, although no strike out application was made.

In light of these difficulties, and following interventions from the Court, the defence of truth was withdrawn on the morning of the second day of the trial, in my view correctly.

In addition, the evidence contained in the DWS is, on the face of it, insufficient to support a defence in accordance with the provisions of s4 of the Defamation Act 2013. This requires the Defendant to show, with regard to each of the sets of words complained of, that (a) the statement complained of was, or formed part of, a statement on a matter of public interest and (b) the Defendant reasonably believed that publishing the statement complained of was in the public interest. Limb (a) depends on an objective consideration of each of the statements complained of, and in any event was not in issue. As to limb (b), however, evidence to the effect that “I did not intend to make any defamatory allegation against the Claimant or to imply that he had any direct involvement in wrongdoing” is not easy to reconcile with a defence to the effect that “I reasonably believed that it was in the public interest to publish that the Claimant was guilty of the wrongdoing that was identified”.

Nevertheless, on the basis that (i) the Re-Amended Defence contains pleas that the Defendant reasonably believed that it was in the public interest to publish each of the statements complained of in the Amended Particulars of Claim and (ii) that Defence was verified by a statement of truth signed by the Defendant, and with the concurrence of Mr Lemer, the Claimant’s Counsel at trial, and perhaps over-generously to the Defendant, I was invited by both parties to proceed on the footing that the Defendant’s case incorporated sufficient evidential material to support a defence under s4 of the Defamation Act 2013.

In these circumstances, the trial involved determination of the following principal issues:

In fact, as already stated, it was conceded that each of the statements complained of was, or formed part of, a statement on a matter of public interest. So limb (a) of s4 is not in issue. Further, the Defendant conceded that, if the Claimant succeeds on liability, an injunction to restrain further publication of the same or similar libels would be an appropriate remedy.