How a forgotten document upended a defamation case against the Home Secretary
On 15 November 2021, it was reported that Dr Salman Butt had received an apology, significant compensation and payment of his legal costs in his long-running legal action for defamation against the Home Secretary.
Dr Butt, the chief editor of the Islam21C website, brought a case of defamation against the Home Secretary after he was named in a press release on the government's Prevent policy in September 2015. The policy is aimed at reducing extremism in academic settings.
Entitled, 'PM's Extremism Taskforce: tackling extremism in universities and colleges top of the agenda', the release referred to a finding by the government's Extremism Analysis Unit that in the previous year there had been at least 70 events on campuses featuring hate speakers. It went on to identify Dr Butt, in a section headed 'Note to editors', as one of a number of named individuals "on record as expressing views contrary to British values".
Defamation claims and the requirement of serious harm
The Defamation Act 2013 (the Act) introduced a requirement of serious harm for defamation claims. A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the complainant. It would not, for example, be sufficient to allege injury to feelings. Here, Dr Butt alleged that the publication did indeed cause serious harm to his reputation and, within the one year limitation period for the commencement of such claims, launched proceedings against the Secretary of State for the Home Department.
In his claim, Dr Butt asserted that the natural and ordinary meaning of the words in the press release meant and were understood to mean that Dr Butt "is an extremist hate speaker who legitimises terrorism, is likely to radicalise students and from whose poisonous and pernicious influence students should be protected".
'Honest opinion' under The Defamation Act
In her defence, the Home Secretary argued that the natural and ordinary meaning of the words in the press release meant and were understood to mean that Dr Butt "is someone who has expressed views contrary to British values". She did not admit that the words did, or were likely to, cause Dr Butt serious harm and, accordingly, did not admit that they were defamatory of him. As an alternative position, the Home Secretary relied upon one of the defences available under the Act, namely that of 'honest opinion'. For this defence to succeed, she would have to satisfy the court in three respects: (i) that the statement complained of was a statement of opinion, (ii) that the statement complained of indicated in general or specific terms the basis of the opinion, and (iii) that an honest person could have held the opinion.
The Act identifies a number of other statutory defences, including:
- truth (where the imputation conveyed by the statement is substantially true)
- publication on a matter of public interest (where the statement complained of was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed that publishing the statement was in the public interest)
- a defence for operators of websites, where the operator can show that it was not the operator who posted the statement
- where the statement is a peer-reviewed statement in a scientific or academic journal
- reports protected by privilege
At a trial of a preliminary issue before Mr Justice Nicol in October 2017 [Dr Salman Butt v The Secretary of State for the Home Department  EWHC 2619 (QB)], the Court had to determine: (i) the natural and ordinary meaning of the words at the centre of the complaint, (ii) whether the statement complained of was a statement of opinion, and (iii) if opinion, whether the statement complained of indicated in general or specific terms the basis of the opinion. If the Home Secretary was successful in (ii) and (iii) she would have a defence to the claim of defamation.
Mr Justice Nicol found that the natural and ordinary meaning of the words at the centre of the complaint were understood to mean that Dr Butt is an extremist hate speaker who legitimises terrorism, is likely to radicalise students and from whose poisonous and pernicious influence students should be protected.
The Judge went on to find that these words were a statement of opinion and reflected the views of Dr Butt in the public domain. These findings enabled the Home Secretary to maintain a defence of 'honest opinion' (under section 3 of the Act).
The findings were upheld during an appeal in June 2019.
Disclosure of documents in defamation cases
Following the appeal however, documents came to light that revealed it was a mistake to include Dr Butt's name in the press release.
Obligations of disclosure of documents arise at various stages of court proceedings. The obligation extends to documents which adversely affect a party's own case or support another party's case (usually, at the stage of standard disclosure under CPR 31.6). The disclosing party may not be aware of the existence of such a document until required to undertake a search and searches may not uncover every document that would, if discovered, be required to be disclosed. This appears to be one such case, where a document which revealed that Dr Butt's name was included in the press release in error, and that the government did not intend to allege that he was an extremist hate speaker, was not uncovered or disclosed during the currency of the proceedings.
Where a document fatally undermines a defence, as appears to be the case here, it is critical that its existence and its impact on the merits of the claim or defence is recognised as early as possible. It can be costly, and damaging, to fail to take it into account when deciding your litigation strategy.
In this week's statement in open court, it was said on behalf of the Home Secretary that "The government accepts that it was wholly false to allege that Dr Butt is an extremist hate preacher who legitimises terrorism and therefore someone from whose influence students should be protected. It is sorry for the harm caused to him and in particular for the fact that the allegation was made and maintained for so long."
It is reported that the settlement of the claim includes removing Dr Butt's name from the press release.