BORIS BEREZOVSKY and NIKOLAI GLOUCHKOV v FORBES INC. and JAMES W. MICHAELS [2001] EWCA Civ 1251

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr. Justice Eady)
[2001] EWCA Civ 1251Case No Case No: A2/2000/3743Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 31st July, 2001
Between
BORIS BEREZOVSKY and NIKOLAI GLOUCHKOVClaimants/ RespondentsFORBES INC. and JAMES W. MICHAELSDefendants/ Appellants
Before
Lord Justice AldousLord Justice SedleyLady Justice ArdenMr. G. Robertson QC, Ms H. Rogers and Ms S. Mansoori (instructed by Messrs. Pinset Curtis Biddle for the Appellants)Mr. D. Browne QC and Mr. M. Nicklin (instructed by Messrs. Peter Carter-Ruck & Partners for the Respondents)

LORD JUSTICE SEDLEY:

The

[1]judgment which follows is the judgment of the court. Forbes magazine is a long-established and reputable periodical published in the United States of America for an educated and prosperous readership. Just under 2,000 of its 765,000 copies circulate in the United Kingdom. In its issue of 30 December 1996 it carried a major article which the second appellant, Mr Michaels, described editorially as "one of the finest pieces of reporting I have seen in my half-century in journalism". It concerned the first claimant, Mr Berezovsky, who is described by his own counsel as a Russian tycoon with extensive business and media interests, and the second claimant, Mr Glouchkov, formerly the deputy managing director of the Russian airline Aeroflot.[2]It is the case of the two claimants, the respondents to this appeal, that the article without factual justification accuses them both, but Mr Berezovsky especially, of involvement in crime of the most serious kind. Forbes contend – or wish to contend – that the article justifiably recounts that the claimants are suspected of crime but does not go so far as to accuse them of it. Whatever meaning the jury accord it, however, Forbes say that the publication is entitled to the protection of qualified privilege; a plea which the claimants meet both by contesting its availability and by asserting malice. Forbes also rely, though without particularity, on section 5 of the Defamation Act 1952. They lastly deny any injury to reputation. The case has already reached the House of Lords where, by a majority of 3 to 2, their Lordships ( [2000] 1 WLR 1004 ) held that England was a permissible forum for this litigation.[3]It is not necessary to reproduce the contentious article in full. It was introduced by a trailer at the top of the front cover:
"The most powerful man in Russia (No, not Boris Yeltsin)", and by an entry on the contents page which read: "
Boris Berezovsky. Russia, these days, is a bubbling cauldron of criminal organisations – Sicily on a giant scale". The editorial read:
"Keeping the old KGB busy The authors of "
Godfather of the Kremlin" are, of course, well known to the editors of Forbes and highly regarded here – but after you've read the article that starts on page 90, you will understand why we have omitted their names. It reads like fiction, but this is the true story of the brilliant, unscrupulous Boris Berezovsky, a close associate of President Boris Yeltsin and a man who parlayed an auto dealership into Russia's most formidable business empire. Berezovsky stands tall as one of the most powerful men in Russia. Behind him lies a trail of corpses, uncollectible debts and competitors terrified for their lives. A number of Forbes editorial staffers were involved in the reporting and picture-gathering over a period of many months. As one of them put it:
"In Moscow, asking questions about Berezovsky was like being back there in pre-Gorbachev days. At the very mention of Berezovsky's name, people would look around furtively, lower their voices and try to change the subject."
Russians have good reason to be afraid of Berezovsky and people like him: Emulating the old communist bosses, the new crime bosses use KGB-trained assassins and enforcers. In the prevalence of brutality and extralegal power grabs, Russia hasn't finished paying the price of those 70 years of communism. This is one of the finest pieces of reporting I have seen in my half-century in journalism."[4]The Lucas-Box meanings pleaded by Forbes were these:
"A. That Berezovsky is, or there are reasonable grounds to believe that he is, a corrupt and unscrupulous businessman who, through corrupt and unscrupulous dealings in business and politics (as set out below), has amassed a large personal fortune and become one of the most powerful men in Russia; B. That Berezovsky has been, or there are reasonable grounds to believe that he has been, willing to use violence to advance his business interests and, in particular, that (a) he had dealings with criminal gangs which dominated the car industry in Russia, through which he made the foundation of his wealth and (b ) he asked General Korzhakov to 'terminate', that is, kill, Gusinsky, a business rival and others; C. That Berezovsky was suspected of involvement in the murder of Vladimir Listiev."
In relation to the second claimant they were:
"A. That Glouchkov is, or there are reasonable grounds to believe that he is, a corrupt businessman who was engaged in corrupt dealings as set out below, including in relation to the Russian car manufacturer Avotvaz; B. That Glouchkov is and was closely associated with Berezovsky who is, or there are reasonable grounds to believe that he is, a corrupt and unscrupulous businessman who through corrupt and unscrupulous dealings has amassed a large personal fortune."
[5]On the claimants' application to strike out the material passages of the defence Eady J, setting out his reasons in a full and careful judgment, held that the limited meanings pleaded by Forbes were unsustainable. The article in its context, he held in effect, could have meant only, as the claimants asserted it did, that Mr Berezovsky was a gangster boss who had amassed his fortune by having political and business rivals murdered and by large-scale fraud and intimidation; and that Mr Glouchkov was an associate of his, with a conviction for theft of state property, who had helped him to steal funds from Aeroflot and Avtovaz. The judge accordingly struck out numerous passages of the defences (there are technically two actions, but they have proceeded as one throughout). Of these, Forbes with the permission of this court now seek the reinstatement of an important handful in the Berezovsky action: head (C) of the Lucas-Box meanings, quoted above; paragraph 5.48, setting out reasons why the police suspected Berezovsky of responsibility for Listiev's murder; and paragraph 5.86, recounting Aeroflot's recent measures to distance itself from the claimants' business interests.[6]The principal question for this court is whether Eady J was right to exclude the lesser meanings on which Forbes relied as their first line of defence. It poses as an initial issue the question of the respective roles of the judge of first instance and of this court in relation to the limits of meaning. It also raises the consequential question of whether partial justification is possible not of a distinct charge which is part of a larger libel but of a lesser charge than that which the libel makes.[7]For the claimants Mr Desmond Browne QC submits that meaning is, as Lawton LJ once called it, a jury question for the judge, and one in which an appellate court should accordingly be exceedingly slow to intervene, limiting itself to cases of egregious error or, more mundanely, cases where the judge is plainly and obviously wrong. This court, he reminds us, has in recent years reiterated its reluctance to encourage interlocutory appeals on meaning. In Hinduja v Asia TV Ltd [1998] EMLR 516, 523 Hirst LJ said:
"I would strongly wish to discourage appeals … on which the decision seems to me to lie essentially within the province of the judge in chambers. This rule [RSC O.82, r. 3A, the forerunner of CPR 53, PD 4.1] is intended to lay down a swift and inexpensive procedure in chambers to eliminate meanings which the words are plainly incapable of bearing."
On this, in Geenty v Channel Four Television [1994] EMLR 524, 532, the same

judge commented:

"I do not in any way resile from that general approach … but as Millett LJ pointed out in argument, there is a significant difference between the Hinduja case and the present case, in that in the former the judge ruled that the words were capable of the disputed meaning, thus leaving it to the jury to make the final decision, whereas here, on the judge's ruling, one of the two meanings relied upon is ruled out once and for all, from which it follows that the Court of Appeal should be a little less reluctant to interfere with the latter situation than in the former."
[8]For Forbes, Mr Geoffrey Robertson QC contends not simply that this judicial self-denial is today inappropriate but that the meaning of meaning in defamation actions has itself been altered by the Human Rights Act 1998. Both, he submits, have to be reoriented towards the enlargement of press freedom. The argument derives support from the statutory obligation of the English courts since 2 October 2000 to act in accordance with the European Convention on Human Rights and to construe legislation so far as possible in conformity with it, having proper regard to relevant decisions of the European Court of Human Rights (Human Rights Act 1998, ss.6, 2 and 3). It relies too on s.12, which provides among other things:
"12.-(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. … (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to- (a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code."
It follows, in Mr Robertson's submission, that the repetition rule and the conduct rule, which in English common law deny a defence to a publisher who simply recycles a libel and insist that an allegation of reasonable suspicion has to be defended by attributing it to the claimant's own conduct, are incompatible with the Articles 6 and 10 of the Convention, particularly in the light of the decisions of the European Court of Human Rights in Bladet Tromso v Norway (2000) 29 EHRR 125 and Bergens Tidende v Norway (2001) 31 EHRR 16 . An article written ethically and honestly is now to be judged not by making nice distinctions of pleaded meaning but according to a broad judgment whether, having regard to those true facts and fair comments which the article contains, it is necessary in a democratic society to restrict the journal's freedom of expression by making its publisher and editor liable for its inaccuracies. This argument stands free of s.5 of the Defamation Act 1952; but as a fallback Mr Robertson argues, on similar grounds, that s.5 now has to be read so that "distinct charges" include lesser and greater meanings of the same words.[9]Eady J considered these arguments and rejected them. He concluded:
"It seems to me that allowance for exaggeration is already made in the English law of defamation. This is to be found in the principles governing fair comment in cases of exaggerated opinions: see, for example, Silkin v. Beaverbrook Newspapers [1958] 1 WLR 743. In cases of statements of fact, a certain amount of exaggeration would be accommodated by the basic rule of justification that a defendant only has to prove the defamatory allegations to be substantially correct. It is sometimes expressed by saying that a defendant must prove the "sting" of the libel. That principle sits alongside the statutory provisions contained in section 5 of the Defamation Act 1952, which in themselves may assist a defendant to escape liability in circumstances when he has over-stated his case"
He was not deflected from this view by the Bladet Tromso case; but he had apparently not been shown the Bergens Tidende case, to which we shall come. He went on:
"Where I would differ from Mr. Robertson is over his submission that the European decision impacts on the court's approach to the determination of meaning. He suggests that a reasonable reader might say to himself that a less serious meaning should be attributed to the words complained of because a discount has to be allowed for exaggeration. I asked for his assistance on how that submission applied to the present facts. One example he gave was the allegation to the effect that Mr. Berezovsky appeared to leave behind him a trail of corpses. It is difficult to identify, however, what it is that one would be left with if one stripped out the exaggeration. What is the reasonable reader to assume is to be taken at face value and what is to be dismissed as exaggeration? How can one tell? What would the reasonable reader decide is the bedrock allegation once exaggeration has been excised? These questions pose, to my mind, real difficulties. I should resist any temptation to become unduly intoxicated by the heady atmosphere engendered by the Human Rights Act. I ask myself to what extent, if any, English law fails to accommodate the policy considerations expounded in the Strasbourg jurisprudence. Having thought about it, I am not persuaded that there would be any incompatibility between it and the well known tests that an English judge has hitherto been required to apply on applications of this kind."
[10]In our judgment the legal landscape, in this as in other respects, is susceptible of change under the direct or indirect impact of the Convention. Eady J himself recognised as much in his judgment, given some two weeks after the present one, in Branson v Bower (unreported, 21 November 2000); and more recently still the House of Lords in RvA [2001] UKHL 25 and R v Lambert [2001] UKHL 37 has reiterated the need to be prepared – in Lord Slynn's metaphor – to cull sacred jurisprudential cows. We do not, therefore, accept Mr Browne's invitation to rest on the laurels of earlier judicial statements, albeit of high authority, that the English common law already conforms with Article 10 (see A-G v Guardian Newspapers [1990] 1 AC 109 , 283-4; Derbyshire CC v Times Newspapers [1993] AC 534 , 551; cf the similar approach of the Canadian Supreme Court in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130). We do, however, accept his submission that the decision of their Lordships' House in Reynolds v Times Newspapers [1999] 3 WLR 1010 , given between the enactment and the coming into force of the Human Rights Act 1998 but predicated throughout upon the Convention, must influence our approach to the present questions. Reynolds was a case on qualified privilege, and while its effect was to consolidate the ability of the present defendants to run such a defence notwithstanding their inability to justify the full sting of the article, it does not by itself answer Mr Robertson's case on meaning. As Latham LJ remarked on the appeal in Branson v Bower [2001] EWCA Civ 791 :
"It may be necessary in some cases to consider with some care the extent to which the boundary between assertions of fact requiring justification and comment as drawn by domestic law has been affected by the passage of the Human Rights Act 1998 and European jurisprudence."
[11]It seems to us, however, that wherever it is that the Act and Convention now take us, it cannot be as far as Mr Robertson contends. The Article 6 right to a fair trial is, as he says, an absolute right. But a fair trial of what? Necessarily of the issues properly before the court. It is therefore to Article 10 and its jurisprudence, and to s.12, that one has to turn to see what these should be in the present case. Article 10 is in these terms:
" Article 10 Freedom of expression 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The right which it sets out is not absolute: it is conditioned, among other things, by the reputations and rights of others. In Douglas v Hello! [2001] 2 WLR 992 this court made it clear that for this if for no other reason s.12(4) of the Act adds little if anything to the legal armoury of the press: regard for the Article 10 right inexorably involves regard for the qualifications to it. It remains therefore for national legal systems to set their own thresholds of defamation and justification, subject always to the Convention standard of proportionality and (although Article 13 is omitted from the Convention rights scheduled to the Act) the right to a legal remedy for breaches.[12]To require a defendant, albeit a serious and reputable publisher, to be able to justify not a diminished version of a damaging assault on a claimant's reputation but the essence or substance or sting of that assault is not in our judgment a disproportionate invasion of the right of free expression. It meets the legitimate purpose, recognised by Article 10(2), of protecting people from the publication of damaging and unjustified falsehoods. The important question for Convention purposes is whether it does so by disproportionately restricting the ability of the press, even at the cost of exaggeration or inadvertent error, to bring to light serious matters of public concern. Proportionality itself is not mentioned in the Convention, but it is the jurisprudential means by which the European Court of Human Rights ordinarily decides what is permissible in a democratic society. It has the twin virtues of avoiding pronouncements which are capable of trenching upon politics and of affording a schematic and adaptable mode of testing the acceptability of interferences with primary rights. Applying it here, it seems to us that it is not disproportionate, nor therefore unacceptable in a democratic society, to limit justification to the essential damage done by the publication (if necessary by disaggregation under s.5) and to test exaggeration and error separately by allowing defences of fair comment and qualified privilege, provided these give adequate weight and liberty to press freedom. It is here that Mr Browne is entitled to point to the increased solicitude for responsible journalism shown by the decision on qualified privilege in Reynolds , but also to Lord Hobhouse's reminder in that case that a democratic society has no interest in the dissemination of untruths.[13]We do not accept that the Bergens Tidende decision has altered the course of Convention jurisprudence on this subject. It was a case in which a defensible criticism of a plastic surgeon's standard of aftercare was held by the Norwegian Supreme Court to carry a defamatory sting of incompetence as a surgeon. Accepting this not immediately obvious finding, the European Court of Human Rights held nevertheless that it was an unacceptable breach of the newspaper's Article 10 right to make it liable for what was in effect the defamatory fallout of a legitimate critique. In England it would probably have come within s.5 of the Defamation Act 1952; but in any event the secondary meaning would have been a question for the jury and the issue would almost certainly have come to rest with their verdict. The decision is not, in our judgment, authority for any wider proposition about the compatibility of defamation law with the Convention.[14]There are more fundamental grounds, too, for declining to go down Mr Robertson's road. While there is an element of question-begging in Mr Browne's stirring proposition that meaning is sacred, there is no defensible way in which the courts can adjust the meaning of meaning so as to include things which no sensible reading of the words could embrace. Mr Robertson disavows such an objective, but we have been unable to discern any juristic space between such an effect, with the uncertainty and injustice which it would bring in its train, and a ring-fenced area of feasible meanings from which the jury in due time will choose the right one.[15]For essentially the same reasons we do not accept the fallback argument that it is necessary by reason of s.2 of the Human Rights Act 1998 to construe s.5 of the Defamation Act 1952 so as to bring lesser meanings as well as discrete meanings within the adjective "distinct". True facts which go half way, but only half way, to meet the sting of a libel may well mitigate damage, especially if – as Mr Browne was anxious to stress – the decision in Burstein v Times Newspapers [2001] 1 WLR 579 , CA, which he described as radical and innovative, makes serious inroads into the restrictive doctrine of Scott v Sampson (1882) 8 QBD 491 and Plato Films v Speidel [1961] AC 1090.[16]The real question in the present case is how the courts ought to go about ascertaining the range of legitimate meanings. Eady J regarded it as a matter of impression. That is all right, it seems to us, provided that the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity, not in parsimony. It is why, once fairly performed, it will not be second-guessed on appeal by this court: the longstop is the jury. But it is also why, if on an application for permission to appeal it appears that the judge has erred on the side of unnecessary restriction of meaning, this court – though it will always be mindful of what Brooke LJ said in Cruise v Express Newspapers [1999] QB 931 about self-denial in libel cases - may be readier to take another look. In those cases where it does so, its decision is akin to (and strictly speaking probably is) a holding of law. It will have careful regard to the judge's view, but the view it comes to on the legitimate ambit of meaning will be its own. That is the approach we propose to take here.[17]In our judgment, and in spite of Mr Robertson's seductive presentation of the contrary view, the article in its setting cannot sensibly be read as meaning that Mr Berezovsky was suspected, but no more, of being responsible for the murder of Vladislav Listiev. The entire thrust of the publication is that he was responsible for it. A straightforward reading of the article in the context set out earlier in this judgment is the best way of explaining why, but in essence it is because the entire article is devoted to Mr Berezovsky's use of gangsterism to achieve his ends and to the consequent series of deaths of which Listiev's was "the most famous". There remain on the pleadings, following the obligatory amendments, these affirmative allegations by way of justification: "A. That Berezovsky is a corrupt and unscrupulous businessman who, through corrupt and unscrupulous dealings in business and politics (as set out below), has amassed a large personal fortune and become one of the most powerful men in Russia; B. That Berezovsky has been willing to use violence to advance his business interests and, in particular, that he had dealings with criminal gangs which dominated the car industry in Russia, through which he made the foundation of his wealth. It will be for the jury to say how far these allegations, if proved, draw the sting.[18]Mr Robertson candidly accepted that if he could not succeed on his first ground he could not succeed on paragraph 5.48, which was directed to consolidating the defence of reasonable and self-induced suspicion and so depended on suspicion being an arguable meaning of the publication.[19]Paragraph 5.86 reads:
"5.86 In 1998, Aeroflot decided not to renew any of the facilities with Andava, Grangeland and Forus. This formed part of its attempt to distance itself from companies in which Berezovsky and/or Glushkov had an interest. Instead, it arranged credit facilities with two Russian banks and transferred its treasury management services to another service provider. In the Annual Report for 1998, Okulov, the General Director of Aeroflot: i) emphasised the general duty of the directors of Aeroflot to take steps to safeguard the assets of Aeroflot and to prevent and detect fraud and other irregularities; and ii) stressed that the company had been re-structured, both in terms of its management and the way that it cooperated with some of its partners, so as to bring the 'necessary transparency and efficiency' to the airline. The new board of directors of Aeroflot in February 1999 had approved a programme to stabilise the financial and economic operations of the company."
Eady J said of it, and of its corresponding paragraph in the Glouchkov pleadings:
"It relies upon matters in the 1998 annual report. Mr. Browne argues that those matters are not relevant to justification of any of the meanings pleaded. I agree they should come out. Also, more specifically, the facts postdated the publication of the article. It is thus clear that they cannot constitute reasonable grounds for suspicion, since that is a matter that has to be judged as at the time of publication."
[20]Mr Robertson, without resistance from Mr Browne, submits that the judge was wrong to shut out the pleaded facts on the ground that they postdated publication (see Bennett v. News Group Newspapers Ltd. unreported, CA, 8 July 1998). This ruling went to suspicion, while the pleading went to justify actual guilt. But Mr Browne supports the striking out of this paragraph on the judge's first and distinct ground, that it was irrelevant to justification. We accept that the paragraph is a material part of the defendants' narrative, but it is not a relevant averment to the plea of justification. Striking it out does not inhibit Forbes' ability to tell the story as they wish to tell it at trial, but it does limit the pleadings to what is legally relevant. The obligatory exchange of evidence under the Civil Procedure Rules now enables pleaders, especially but not only in defamation actions, to be economical in their texts without the risk of being accused of taking the other side by surprise. The judge in our view was right to strike this passage out.[21]For these reasons the appeal is dismissed.

Cited in 13 later judgments

and 4 more of the most senior