According to the latest news published by The News (Newspaper in Pakistan) on 12th November 2022 “ Shehbaz’s plea for Stay Defamation case denied by the UK courts”….and it has been hot topic and point of discussion during the weekend. The writer would like to shed some light and share his own opinion for general public and for the benefits of students.

The background of this matter is as follows;
In 2019 the Daily Mail published the following article, “Did the family of Pakistani politician who has become the poster boy for British overseas aid STEAL funds meant for earthquake victims”.

According to the publisher, when Shahbaz Sharif was leading Pakistan’s main opposition Party and was a Chief Minister that time £500 Millions were being poured in Punjab. Further the Article says, “all the time that DFID was heaping him and his government with praise and taxpayers cash, Shahbaz and his family were embezzling tens of millions of pounds of public money and laundering it in Britain”.

Thereafter, after the publication of this article against the allegations of Daily Mail the then PML-N President Shehbaz Sharif had sent a Pre Action Protocol Notice to the publisher, the Mail on Sunday and to the Online News site named Mail Online and to the journalist David Rose through the law firm named Carter – Ruck Solicitors on 25 th July 2019.

It is important to note and understand that under the Civil Procedure Rules, its part of procedure to send Pre Action Protocol Notice to the other party and within 21 days the other party would either respond it or otherwise and thereafter the applicant can issue formal proceeding before the court of law after 21 days.

In almost every case in the UK before the proceedings are issued, it is expected that the claimant will enter into correspondence to give the intended defendant a chance to negotiate and compromise to the dispute. If this is successful then both sides will have a great deal in legal costs and the efforts required in consulting the litigation.

Moreover, after sending the Pre Action Protocol, the formal proceeding were being issued by the Representative of Mr Shareef. The usual way to commence Civil Proceeding is by way of issuing a claim form.

It is further part of procedure once the claim has been filed by the applicant, within 21 days under the rules the other party is required to submit their response ….. However the Daily Mail (Respondent) submitted their answer in March 2022 . In March 2022, the Daily Mail had submitted their written reply of 50 pages and thereafter the proceedings continued however, during the proceedings , the Representative of Shareef tried to seek injunction on the basis unknown to the writer.

According to an order issued on 9 th November 2022 by Mr Justice Nicklin of the Kings Bench Division, ” the Requests of Mr Sharif and Mr Yousaf’s regarding the stay order on the proceedings was refused by the Court and further the claimants were asked to pay the cost of the earlier litigation incurred by the respondent related to the stay application.

The Order of Mr Justice Nicklin reads as follows, “ The first claimant [Sharif] must pay the defendant’s [paper’s] costs of and occasioned by a) the stay application b) his original reply (including the costs arising from the process by which extensions of time were sought and agreed in respect of the same,” the order read”.

In addition, Mr Sharif was ordered to pay the sum of £30,000 to the defendant by Nov 23 rd . The court also said both Mr Sharif and his son-in law must file and serve amended replies to the defence presented by the paper, and that if the responses are not compliant under the rules set out under CPR PD 53B paragraph 4.7, they will be struck out.

It is important to note that it is not a penalty which was being imposed on the Claimants rather it was awarded cost. It’s a part of British Civil Procedure Rules that the losing party would pay the cost of the other party.

According to the writer’s understanding, the applicant (Shehbaz Shareef) tried to seek an injunction during the Proceedings been issued. As with all forms of equitable relief, the granting of interim injunction is a matter with the discretion of the court. The fundamental principle is contained in the SCA 1981, s 37 (1) which provides “The High Court may order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so”.

Furthermore, in American Cyanamid v Ethicon [1975] AC 396 Lord Diplock laid down guidelines on how the courts discretion in order to grant the injunction should be exercised in the usual type of cases. The British Courts usually follow the following limbs of Cyanamid v Ethicon in order to determine if the Injunction should be refused or allowed. (a) Is there a serious issue to be tried (b) Would damage be an adequate remedy instead? (c ) Where does the balance of convenience lies (d) Are there any other special factors?

In regards awarded cost it is usual for the successful party in a claim to be awarded an order for costs against the unsuccessful party. Cost shifting in this way is compliant with the European Convention on Human Rights, First Protocol, art 1, because it may act as a disincentive to unnecessary Litigation ( Hoare v United Kingdom (2011) 53 EHRR SE1.

The Judge would consider two principles when it comes to deciding which party should pay the costs of an application or of the whole proceedings are,

(a) The costs payable by one party to another are in the discretion of the court (SCA 1981) s 51, CPR, r 44.2 (1) and

(b) The general rule is that the unsuccessful party will be ordered to pay the cost of the successful party (r 44.2(2) sometimes referred as cost follow the events.

Conclusion:

The cost awarded by the Kings Bench on PM Shehbaz on 11 th November 2022 is not a fine rather it’s a cost awarded to the other party (respondent) . Another question raises here is, if the PM of one country can be part of litigation in another country as in his own country he is Immune being supreme leader of the country? The second question is, in case the Judgment is being passed against the PM what would be repercussions of that Judgment within in his own Country? Please note, at this stage only the cost of stay application is being awarded the whole remaining case would continue and would reach on its fate with the passage of time.

Another question needs to be answer here is, as the Kings Bench ordered to follow the directions to the parties and if the responses are not compliant then what would be the consequences on the Claimant. The writer is of view that consequences would not be more severe except the claim of claimant will be struck out under the CPR Rules.

Written by : Mansoor Ali Raja
LLB, LLM

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