Baturina v Times Newspapers Ltd [2010] EWHC 696 (QB)

Case No HQ09D04581[2010] EWHC 696 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31 March 2010
Before
THE HONOURABLE MR JUSTICE EADY
Between
ELENA BATURINAClaimantTIMES NEWSPAPERS LIMITEDDefendant
Romie Tager QC and Anna Coppola (instructed by Lass Salt Garvin) for ClaimantManuel Barca (instructed by Times Newspapers Ltd) for DefendantHearing Hearing dates: 4–5 February 2010
JudgmentMr Justice Eady :
[1]The Claimant, Elena Baturina, is a citizen of the Russian Federation and the wife of Yuri Luzhkov, who has been the Mayor of Moscow for the last 18 years. She also conducts a property investment business through a corporate entity known as INTECO. She claims remedies in respect of articles contained in the Sunday Times for 27 September 2009. The first appeared on the front page under the heading “Russians’ $100m London palace” and the second on page 3 under the heading “Yelena Baturina: bunker billionairess digs deep”. These are said to contain allegations defamatory of the Claimant.[2]The Defendant, Times Newspapers Ltd, is the publisher of the newspaper and of the Times Online website, through which the articles were also published, although only for a very short period. They were taken down by 29 September.[3]There is no need to set out the content of the articles in extenso. It will suffice to say that their effect was to convey the allegation that a large mansion in Highgate, known as Witanhurst, had been acquired by the Claimant through an off shore company based in the British Virgin Islands referred to as “Safran Holdings”. The purchase price was said to be £50m and mention was made of a further £50m to be spent on the property. Those allegations in themselves are not defamatory.[4]It has recently been recognised, on the Claimant’s application to amend the particulars of claim, that her claim could only survive on the basis of setting up at least one viable innuendo meaning. Without a sustainable innuendo, the claim would be doomed to failure.[5]Reliance has been placed on a photo montage appearing alongside the page 3 article, which apparently shows the Claimant and her husband waving to onlookers. This has obviously been superimposed on a photograph of the house in question. A good deal of attention has been devoted to castigating the montage which has been described as a “blatant forgery”. This is a point which should have been laid to rest long ago, but it is said to represent an issue fit to be tried by jury as being relevant to the aggravation of damages. It can plainly be referred to, for what it is worth, as part of the context, but it does not justify an allegation of dishonesty against the Defendant.[6]On the other hand, if the Defendant’s primary submissions now before the court are accepted, the question of damages would not arise. By its application notice dated 16 December 2009, the Defendant seeks a ruling that the words complained of are incapable of bearing the pleaded meanings or any meaning defamatory of the Claimant. The natural and ordinary meanings originally pleaded were framed in rather curious terms. In paragraph 10, it was said that the words and photograph contained the imputation that “ … the Claimant was the beneficial owner of Witanhurst … notwithstanding the fact that she is not the beneficial owner and/or that there was no evidence in the Jersey companies register or at the Land Registry or elsewhere that linked the Claimant with either Safran or Witanhurst”. (The reference to Jersey arises because at one time it seems to have been thought that this was where the company was registered.)[7]In paragraph 13 of the original particulars of claim, the natural and ordinary meaning was also expressed as being “ … that the Claimant was the beneficial owner”.[8]In paragraph 14, it was alternatively alleged that the words conveyed the defamatory meaning “ … that the Claimant had arranged for Witanhurst to be purchased by an off shore company using nominees as the shareholders and officers of that company in order to hide her interest as the beneficial owner”.[9]There were also pleaded at the original paragraphs 18 and 19 of the particulars of claim two innuendo meanings. That in paragraph 18 was framed as follows:
“ … that [the Claimant] had failed to declare her ownership of and interest in Safran and/or Witanhurst, pursuant to the Russian law.”
This was pleaded on the basis of certain extraneous facts. As originally pleaded, these were to the following effect; namely, that on 18 May 2009 the President of the Russian Federation approved and promulgated a decree, numbered 561, which inter alia required officials and civil servants of the Russian Federation and members of their families to make available and publish their income, property and liabilities. Information so disclosed was published on the official websites of the Federation and made available to the media. Against this background, it was said that the Mayor of Moscow was the holder of an office requiring him and his family to publish their income, property and liabilities. It was pleaded that, accordingly, the Claimant, as the wife of the Mayor, was herself obliged to publish such a declaration. She had not declared that she was the beneficial owner of Witanhurst or Safran.[10]It was said that the Internet edition of the newspaper was likely to be accessed by persons in Russia and elsewhere, including in England and Wales, with an interest in prominent individuals such as the Claimant. It is also claimed that such persons, or some of them, would be aware that she had made no declaration of interest in either Safran or Witanhurst. Thus such persons would infer that the Claimant was in breach of the presidential decree.[11]Moreover, at paragraph 19, it was originally pleaded that the words and photograph would convey the additional innuendo meaning that “ … she was insensitive and/or un-neighbourly by failing to openly identify herself as the beneficial owner of Safran and/or Witanhurst in the context of consulting locally and with any relevant bodies or other organisations in respect of the proposals for the extensive restoration, refurbishment and/or improvement of Witanhurst, which the first and second articles estimated might cost an additional £50 million”. The extraneous facts relied upon for this innuendo were, so far as I understand it, to the effect that Witanhurst had remained unoccupied for many years and had become increasingly dilapidated. Thus, any proposals for its restoration, refurbishment, improvement and/or modernisation would be likely to prove controversial. In order to bring them about, sensitive and transparent discussions would be required with the immediate neighbours, and with local and heritage organisations such as the Highgate Society and the Victorian Society. At all events, it now appears that this rather contrived innuendo is to be deleted.[12]In the light of its comprehensive challenge to those pleaded meanings, the Defendant sought an order that the claim form and particulars of claim be struck out and/or that summary judgment be entered under CPR Part 24.[13]Against this background, Mr Barca for the Defendant submitted that the words were incapable of bearing any defamatory meaning and/or that the innuendo meanings, as originally pleaded, had no real prospect of succeeding. Alternatively, he submitted that their introduction was an abuse of the court’s process “on proportionality grounds”.[14]There was also a challenge to the original paragraph 20 of the particulars of claim, which pleaded that there had been republications of the defamatory words on various websites, “which, in at least 2 cases (viz. chaskor.ru on 28 September 2009 and the 5 October 2009 edition of Novaya Gazeta) drew attention to the absence of any reference to Witanhurst in the Claimant’s said disclosure pursuant to the Russian Law”. It was argued on behalf of the Defendant that there was no basis for establishing liability on its part for the “republications” there alleged. Since the Sunday Times articles had made no reference to the Russian decree in question, or to any declaration, any such allegations could not be categorised as “republications”. They should be regarded as separate and independent.[15]Mr Barca also attacked the contents of the original paragraph 21 of the particulars of claim, which sought an order for the publication of a correction and apology to make clear that the Claimant was not the owner of Witanhurst and had no interest either in Witanhurst or the corporate owner.[16]Just before the hearing took place, there was a proposal for wholesale amendment of the particulars of claim. The draft submitted was dated 2 February 2010. Mr Barca contends that this, if permitted, would do nothing to improve the strength of the Claimant’s position.[17]On 28 September 2009, the press department of the Claimant’s company INTECO wrote to the editor of the Sunday Times. The complaint was that it was untrue that either the Claimant or INTECO had bought Witanhurst or “had any relations with the company registered as the owner of Witanhurst”. The editor was asked to publish a “disclaimer”, the last sentence of which was rather obscure and has never been clarified. It may be that this was brought about by language difficulties, but it is remarkable that the meaning has never been explained in the succeeding months. It stated that the Claimant “ … is beside the purchase and reconstruction of the said mansion”. I suspect that this is intended to mean that she had nothing to do with it.[18]Also on 28 September 2009, a press release was issued by INTECO, which contained a statement by Mr Terebkov (who has prepared a witness statement for use in the present application). This made the rather cryptic observation:
“We do not rule out that the names of the real owners, which will be announced sooner or later, are rather well known to the public and it is simply beneficial for them to use acknowledged businesswoman Baturina as a façade.”
This too is obscure and requires clarification. Rather curiously, no witness statement has been forthcoming from the Claimant herself for use in these proceedings so far.[19]Before the complaint was first formulated in terms of defamation (in a letter of 15 October 2009 from a firm of solicitors called Lass Salt Garvin), the Defendant had published a form of correction in the issue of the newspaper dated 4 October 2009, in which it was stated to be the Claimant’s case that it was not correct that she had purchased Witanhurst. It is to be noted, however, that it did not contain the additional words, which the Claimant contends had been agreed, to the effect that the newspaper was happy to put the record straight. The difference is potentially significant, in that the additional words would have made clear that the Defendant accepted the Claimant’s denial – not merely that they were recording it.[20]The burden of the original complaint, put forward by Ms Kolyuchaya (a Russian lawyer working for INTECO and also handling the Claimant’s personal affairs) had been that the article was inaccurate. When it was later suggested that it was also defamatory, this was not explained by reference to any defamatory meaning at all, whether by way of natural and ordinary meaning or innuendo. Even when her later letter arrived, dated 21 October 2009, which purported to comply with the pre-action protocol, no defamatory meaning was spelt out. It was merely stated that the Claimant was not the legal or beneficial owner of Witanhurst and that she, consequently, had no plans to develop the property. The solicitors continued to prevaricate and, on 6 November 2009, a letter was sent suggesting that the Claimant had suffered “serious damage to her reputation”. It was said to be “self-evident that we are complaining that the allegation that our client is the owner of Witanhurst is false”. That is obviously not a defamatory meaning as such.[21]Mr Barca has addressed the amended particulars of claim (for which permission has not yet been given) and argued that the amendments do nothing to render the claim viable and thus should not be permitted.[22]One of Mr Barca’s principal arguments is that the claim should be struck out for abuse of the process in accordance with the principles enunciated by the Court of Appeal in Jameel (Yousef) v Dow Jones Inc [2005] QB 946. This highlighted the need for the court to keep a proper balance between freedom of expression and protection of individual rights and to strike out, where appropriate, claims in defamation which could not be shown to serve the legitimate purpose of protecting the relevant claimant’s reputation. The essential test would appear to be whether or not the claimant can demonstrate a “real and substantial tort”. The question has to be asked whether the proceedings, as constituted, are capable of achieving any meaningful vindication for the claimant’s reputation.[23]It is suggested that the original reluctance to identify any defamatory meaning, together with the subsequent shifting of position in relation to the innuendo meanings, tends to bear out the weakness of the claim and to illustrate how difficult it is to identify any real and substantial tort within the jurisdiction.[24]In order for a reader to invest either of the articles with a defamatory meaning, it would be necessary for him or her to have in mind, at the time of publication, certain matters. In particular, they would need to know of the existence of the Russian decree and that it required the Claimant (if it did) to declare all her property for public inspection and, secondly, to be aware of the fact that she had not declared the house in London.[25]There are obvious problems. First, the only Russian law relied upon is the presidential decree to which I have referred. Although this imposes on public officials (such as the Claimant’s husband) an obligation to declare not only his own assets and income but also those of his family (including his wife), it would not appear to impose (says Mr Barca) an obligation upon his wife herself.[26]I have to be careful here, since in order to grant summary judgment with regard to the innuendo meanings, I would have to be absolutely confident that Mr Barca is correct in his interpretation of the obligations imposed by Russian law. Obviously, I could only arrive at that state of certainty in the light of unequivocal expert evidence. I can read the terms of the Russian decree (in translation), but when it comes to matters of interpretation I need to be aware that the principles to be applied are those of Russian law. I have before me, in this context, a witness statement from Ms Kolyuchaya who states, at paragraph 9, that:
“As the wife of a public official, the Claimant was obliged under Order 561 to provide for publication data on income, property and property liabilities. Although, strictly speaking, it is the Claimant’s husband who has the duty to disclose the information under the regulations, and it is the state organ who has the duty to place the data on the web-site, in practice, the Claimant is obliged to disclose information about her assets separately to those of her husband, and to provide a separate form containing this information.”
[27]This may not be very convincing as a matter of first impression, but Ms Kolyuchaya appears to be a Russian lawyer and I cannot dismiss her assessment too lightly. Mr Barca submits that there can be no doubt whatever that the legal requirement to disclose is that of the Claimant’s husband alone. He refers me to the wording of the decree itself. Paragraph 4 is in these terms:
“The information about the income, property and property obligations specified in paragraph 2 hereof shall be posted on the official sites within 14 days after expiration of the term fixed for submitting the certificates about income, property and property obligations by the President of the Russian Federation, the persons holding public positions in the Russian Federation and public positions in the Administration of the President of the Russian Federation, by the Chairman of the Government of the Russian Federation, Deputy Chairmen of the Russian Federation, federal ministers, the persons holding posts of the federal state service in the Government Staff of the Russian Federation and the persons holding other public positions of the Russian Federation and positions of the federal state service.”
[28]In the light of Ms Kolyuchaya’s evidence, it seems to me that I must in the context of a Part 24 application proceed on the assumption that an implicit obligation on the Claimant herself, as imposed by the presidential decree, will or may be established through expert evidence at trial. Matters do not end there, however, since I have to address the likelihood of these somewhat arcane matters having been in the minds of readers of the Sunday Times allegations at the material time. This is by no means a simple task. It is necessary, in particular, to consider individually at least five sets of actual or potential readers.[29]First, there is the publication of hard copies of the newspaper in England and Wales. In the absence of evidence as to specific readers with the relevant knowledge, why should it be assumed that any readers within this jurisdiction would have, and have retained, the detailed information necessary to invest the articles with the relevant defamatory connotation? In my judgment, such readers would have to be specifically pleaded.[30]My attention was drawn to Fullam v Newcastle Chronicle & Journal Ltd [1977] 1 WLR 651, 659, where Scarman LJ acknowledged that sometimes facts relied upon to support an innuendo may be sufficiently widely known to enable the claimant to rely on a presumption or inference that some readers will have known them. I cannot believe that the present circumstances would fall within that description. In my judgment, it would be necessary to identify any readers said to have that special knowledge.[31]This is far from being one of those cases where the inference should be drawn that a substantial, but unquantifiable, number of readers would have the relevant knowledge – especially since there is, to say the least, considerable doubt as to the evidence that the Claimant herself is in breach of any legal obligation.[32]Such persons would have to know of the presidential decree and, what is more, of Ms Kolyuchaya’s gloss upon the express words; that is to say, to the effect that they “in practice” impose a direct obligation on the Claimant herself. They would, moreover, have to know that she had made a declaration which did not include the ownership of, or an interest in, Witanhurst. Since no relevant readers have, even now, been identified, I would conclude that there is no realistic prospect of establishing the relevant innuendo in respect of this class of publication.[33]Secondly, there is the publication of hard copies in Russia, for which the Defendant is directly responsible. Here, there is raised the spectacle of inviting an English court to interpret the articles with the knowledge which is to be attributed to the reasonable Russian reader of the Sunday Times. In particular, it is necessary to form a view as to whether or not it can be inferred that there would be a significant number of readers there with the relevant knowledge to attribute the innuendo meaning about a breach of Russian law. This is not an easy exercise, especially if there is to be a jury involved.[34]In this context, it is also necessary to take into account the double actionability rule. Particular care is needed in this unusual situation. I have already held that the claim in respect of readers in England and Wales would fail, because of the absence of any evidence as to readers with the relevant knowledge. This does not in itself mean, however, that the double actionability test would necessarily go against the Claimant. If I were to assume that there will or may have been readers in Russia with the relevant knowledge, it seems to me that in applying the double actionability rule I would need to judge the first limb (i.e. actionability within this jurisdiction) on the hypothesis that there were (contrary to my primary finding) some readers here with the relevant knowledge. I would then move to the second stage and determine whether or not the publications within Russia were actionable according to local law. For this purpose, I would need expert evidence and particularly with reference to the Russian law on innuendo.[35]Next, I have to consider two categories of publication by third parties in Russia, either in the Russian language or in English, for which the Defendant is alleged to be responsible by way of the “republication” doctrine. Mr Barca submits that there is a (third) category in respect of which the claim is untenable, since they are not mere republications of a libel published here. They take the matter a stage further by making a direct allegation of illegality (i.e. giving rise to a natural and ordinary meaning to that effect, as opposed to an innuendo). They are separate and distinct articles, each of which represents, in Mr Barca’s words, a novus actus interveniens. In respect of these, he argues, the Claimant must sue in Russia, if at all. I shall need to consider the arguments at greater length in due course, since the authorities need to be addressed in a little detail.[36]Fourthly, there is to be considered the possibility of publications in Russia (either in English or Russian) which replicate the Defendant’s words (or some of them) without putting an interpretation or gloss upon them. One can envisage a bare repetition of the allegation that the Claimant had purchased Witanhurst, in respect of which an argument could be raised to the effect that it would or might convey an innuendo meaning to Russian readers with the relevant knowledge. Here, the novus actus argument would be less powerful. It would turn on foreseeability.[37]As I understand the Claimant’s case, she wishes to claim in respect of the third and fourth categories both by setting up a distinct cause of action for each publication and, in the alternative, by way of seeking additional damages for such “republications” as flowing from the primary publication of the Sunday Times (either in England and Wales or in Russia).[38]Fifthly, there were the possible Internet publications between 27 and 29 September 2009. Here again, it is necessary to consider hypothetical readers during that very limited period who would have had access to or downloaded the allegations, whether here or in Russia, and who had the relevant knowledge of the rather intricate extraneous facts relied upon. This category, like the first, seems to me to be relatively straightforward. In the absence of any positive evidence, I am not prepared to make any assumption that there would have been any Internet readers with the relevant knowledge. The courts have in recent years been approaching Internet publication generally on the basis that there is no rebuttable presumption that material placed on a generally accessible website has been published to a substantial number of persons (whether within the jurisdiction or elsewhere): see e.g. Duncan & Neill on Defamation (3rd edn) at 8.03.[39]That leaves the second, third and fourth categories to be considered in further detail. The second category concerns hard copies published in Russia. The central question for me to consider is whether the particulars of innuendo, now pleaded at paragraph 13 of the draft amended particulars of claim, could be shown to be within the knowledge of a substantial number of Sunday Times readers in that jurisdiction. Many particulars are set out but I do not need to rehearse them in this judgment. A summary will suffice.[40]First, reference is made to the details of the enactment of the relevant anti-corruption measure in December 2008, imposing the legal obligation on government and municipal employees to submit information on their (and their spouses’) “ income, property and property liabilities”, and to the presidential decree No 561 of 18 May 2009, requiring “civil servants and their spouses” to submit annual reports on incomes and a declaration of all real estate. The “implicit obligation” on the Claimant imposed by this legislation is pleaded. It is reasonable to suppose that the legal measures, taken to combat corruption in public life, would have attracted a good deal of attention in Russia.[41]It is then pleaded that the Claimant published her assets on 3 July 2009 on the press office website of the Mayor and government of Moscow, in order to facilitate compliance with the new rules, and this remains accessible to this day. Furthermore, it is pleaded that on 4 July 2009 the details were also published in Tverskaya 13, which is the official newspaper of the government of Moscow. In those circumstances, and in view of the high profile of her husband and herself, the likelihood is that this will (as intended) have come to the attention of a significant number of people.[42]It is also alleged that the declaration of assets received widespread coverage in a number of identified media outlets, in both print and online versions.[43]The inference is thus invited that a substantial number of readers, and particularly in Russia, will have known that the Claimant made the declaration and that it did not include reference to Witanhurst or any other London property.[44]In the light of all this, it seems reasonable to assume, at least, that the Claimant might be able at trial to establish the relevant knowledge on the part of some of the Defendant’s readers in Russia. It would not be right, therefore, to strike out this part of the claim. It will be necessary, however, to make good the claim that such publications would be actionable by Russian law.[45]Before I address the third and fourth categories, it is necessary to consider the law relating to republication in further detail. There are two modern Court of Appeal authorities that need to be considered: Slipper v BBC [1991] 1 QB 283 and McManus v Beckham [2002] 1 WLR 2982. It is fair to say, at the risk of over-simplifying, that the appropriate test is that of foreseeability. It is legitimate to ask whether a reasonable person in the position of the defendant should have appreciated that there was a significant risk of repetition, either in whole or in part, in the media and/or (presumably) on the Internet, and that this would increase the damage to reputation caused by the original publication. If so, it would seem that there is no reason of public policy why there should not be liability for that additional damage. It will be a question of fact to be determined in the light of the particular circumstances of the case.[46]In McManus v Beckham it was held on the particular facts that it was not possible to dispose of the republication issue at the interlocutory stage. Much would depend on the findings of the jury, in the light of appropriate directions, on which the Court of Appeal offered some guidance.[47]It was submitted on the Claimant’s behalf that all that the Defendant needed to foresee was that its words would be republished in the Russian media. The question was raised, however, whether it was material in this context to consider whether or not the Defendant intended to convey the innuendo meaning complained of and/or appreciated that its words bore such meaning. That would not normally have any bearing on liability, but when foreseeability is an issue it is appropriate to consider what exactly it is that has to be foreseen.[48]Mr Barca submits on the Defendant’s behalf that, with respect to supposed “republications”, the Claimant would be required to show that the publications were reasonably foreseeable as well as the damage they caused. This is simply an aspect of the law governing responsibility for tort generally. Mr Tager QC argues that it is only necessary to show that republication of the words is foreseeable; that there is no need to show any awareness that the publication would be defamatory or to foresee actual damage, since English law conventionally presumes damage to reputation.[49]My attention was drawn to the exposition of the law in Gatley on Libel and Slander (11th edn) at 6.36:
“Where a defendant’s defamatory statement is voluntarily republished by the person to whom he published it or by some other person, the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the claimant may have a choice: he may (1) sue the defendant both for the original publication and for the republication as two separate causes of action, or (2) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote.”
In support of this statement of the law, the learned editors cite two Australian cases: Toomey v Mirror Newspapers (1985) 1 NSWLR 173, 182-183; Sims v Wran [1984] 1 NSWLR 317.[50]The passage in Gatley continues as follows:
“The cases do not always distinguish clearly between the two situations and in many cases it will make no practical difference whether the defendant’s liability is based upon one rather than the other. However, it is clear that the second principle is wider than the first: where the defendant showed a television film defamatory of the plaintiff, the plaintiff was allowed to rely on the effect of newspaper reviews of the film as damage flowing from the broadcast of the film, but the differences between the film and the reviews were such that he could not have relied on the reviews as amounting to a republication of the film. Provided a media report of the initial publication conveys the sting of the original, in whole or in part, it may be relied on to increase the damages flowing from the initial publication even if it cannot be said to ‘repeat’ what was then said.”
These propositions are supported by reference to the decisions in Slipper and McManus, cited above.[51]Mr Barca raises a fundamental point of principle in relation to how the law now appears to treat claims for additional damage where the later publications have not been sued upon as giving rise to a separate cause of action. He referred, in particular, to the words of Bingham LJ (as he then was) in Slipper, which was concerned with damage flowing from the reviews of the television programme. At p.296G-H, his Lordship accepted that the plaintiff could not found a cause of action on the film reviews as amounting to publication or republication of the libel by the BBC. Nevertheless, he went on to acknowledge the legitimacy of a claim in respect of the damage caused by those reviews as part of the damage alleged to flow from the libellous publication itself.[52]Mr Barca queries the juridical basis of the proposition that a claimant can recover damages flowing from a publication in respect of which he could not establish primary liability on the part of the defendant. It is difficult to reconcile these two propositions as a matter of causation. Attention is drawn by the learned editors of Gatley (in footnote 281 on p.203) to observations made in the Queensland case of Timms v Clift [1998] 2 Qd R 100 Qd CA, at 108:
“If, as was held, the plaintiff had no right to recover in respect of the cause of action for the second publication, that in the magazine, it is difficult to understand why the cause of action in respect of the first publication should have included a right to damages in respect of the second publication.”
[53]It may be, as Mr Barca suggests, that what the Court of Appeal in Slipper was recognising implicitly was that it would have been open to the plaintiff to sue on any of the reviews, as distinct causes of action, in so far as they simply republished the words of the libel itself. (That would correspond to my fourth category in the present case.) He cited particular passages in the judgments of Stocker LJ, at pp.295G-296E and Slade LJ, at pp.300F-H and 302D-303A. The latter made reference to the BBC being in a position reasonably to foresee that newspaper reviews would repeat the defamatory sting. It seems as though the analysis should be in terms of foreseeability and novus actus interveniens. If this were not so, submits Mr Barca, all a claimant would ever need to do in respect of “republications” would be to claim damages by way of aggravation. There would never be any need to go through the disciplines of establishing a separate cause of action in its own right.[54]In the present case, the Claimant intends not to confine herself to claiming additional damages in respect of the republications but to rely upon each as a distinct cause of action (as and when properly particularised). If this is so, it would seem rather academic to dwell on the distinction.[55]In the light of these authorities, the key question is whether or not the Defendant caused any repetitions of the libel and/or damage flowing from them and, if so, whether it would be just to hold it liable. In McManus, at [34], Waller LJ stated that what the law is striving to achieve is a just and reasonable result by reference to the position of a reasonable person in the position of the defendant. He went on to add that, if a defendant is actually aware(1) that what she says or does is likely to be reported, and(2) that if she slanders someone, that slander is likely to be repeated, in whole or in part, there is no injustice in being held responsible for damage caused via that publication. He posed the question a jury would have to consider as being whether a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what was said would be repeated, in whole or in part, in the media – and that this would increase the damage caused by the original publication. In such circumstances, it would not be unjust that the defendant should be held liable.[56]It was acknowledged by Laws LJ, at [43], that it is not enough merely to establish causation, since a “republication” could have been caused without the defendant having any reason to be aware of it. In such circumstances, to hold the defendant responsible would not necessarily be just. It must be demonstrated that the defendant foresaw that the further publication would probably take place, or that the defendant should have so foreseen and appreciated that, in consequence, increased damage to the claimant would ensue.[57]What is unusual about the circumstances of the present case is that the original publication is only capable of conveying a defamatory meaning by way of innuendo. This is not a scenario hitherto addressed (at least overtly) in the authorities, so far as I am aware.[58]Furthermore, it is clear that some of the Russian “republications” relied upon here are not merely repetitions of the words complained of. They go on directly to accuse the Claimant of dishonesty. That corresponds to the third category I have identified above.[59]The Defendant accepts that it was foreseeable that a story alleging that the Claimant had purchased a property in London would be republished in Russia. It is not accepted, however, that this of itself is enough to enable the Claimant to recover in respect of the third category “republications” in Russia (whether in English or Russian). Mr Barca suggests that the Claimant would have to establish that a reasonable person in the position of the Sunday Times should have foreseen the following matters: a) that its article would have conveyed the alleged innuendo meaning to a significant number of Russian readers; and b) that the Russian media would go on to make overtly defamatory allegations about the Claimant, using the basic material from the Sunday Times article; and c) that there was a significant risk that the damage to the Claimant’s reputation would be increased by these expressly defamatory publications (far exceeding any damage which might have been caused by the innuendo conveyed to the relatively limited number of Russian readers who saw the Sunday Times article in that jurisdiction). In the absence of these elements, a publication in this category would properly be characterised as novus actus interveniens.[60]As to this third category, it does not seem to me to accord with principle that the Defendant should be held liable in respect of allegations going beyond those in the Sunday Times and which overtly defame the Claimant. Each such publication would appear to fall within the definition of a novus actus interveniens. It might well be that the Sunday Times publication about the acquisition of Witanhurst was a cause of such publications, or indeed the primary cause, but as Laws LJ emphasised in McManus v Beckham, that would not be sufficient to establish liability. There is no evidence that the Defendant would have had reason to know of such risk at the time of publication. It would, therefore, be unjust to fix it with legal responsibility. (If an article repeats the original allegation and adds new defamatory allegations of its own, formidable problems could arise in disentangling the consequences attributable to the different parts: cf. the remarks of Gray J in Collins Stewart Ltd v The Financial Times Ltd [2006] EMLR 5 at [26].)[61]Nevertheless, so far as the fourth category is concerned, I believe that, in principle, such a claim could be made – if properly pleaded. That is to say, the Claimant might be able to recover in respect of damage caused by third party publications in Russia which merely repeated (albeit in Russian) the Defendant’s allegation that the Claimant had purchased or acquired an interest in Witanhurst. The position would be comparable in some respects with that of hard copies of the Sunday Times published in Russia. She would have to establish, either by identifying particular readers or through the exception contemplated by Scarman LJ in Fulham v Newcastle Chronicle, that some readers had knowledge of the relevant extraneous facts.[62]Additionally, however, since the Defendant would not be directly responsible for such third party publications, it would be necessary for the Claimant to establish the foreseeability of republication. She might well be able to do so on the basis that a significant number of Russian readers would be interested in the Claimant and her husband; and, moreover, that the Defendant could reasonably be expected to know this. If that is the case, it would be foreseeable that a story about her acquiring a huge and very expensive property in England would be repeated in Russia.[63]The English law relating to liability for an innuendo meaning would be the same irrespective of where publication takes place; that is to say, it is not necessary for a claimant to prove that the defendant knew that the words were capable of bearing such a meaning or foresaw that there were likely to be readers with knowledge of particular facts. The only additional requirement in respect of foreign publication would be that of establishing double actionability.[64]In the case of each such publication the words would need to be set out (where appropriate with translation), the innuendo meaning or meanings relied upon, the extraneous facts, the readers or class of readers who could be expected to have the knowledge, and the relevant Russian law which would render such publications actionable.[65]In conclusion, I will permit the claim to survive in relation to the limited number of hard copies published in the Russian Federation. I would also allow a properly pleaded claim to survive, as a matter of English law, in respect of any publication that could be shown to fall within my fourth category. Any such claim must depend upon showing both that a significant number of readers would have known of the particulars of innuendo and that the publication of the original articles would be actionable in Russia. But that is all subject to the issue of where such issues should be tried.[66]In relation to those aspects of the claim which can proceed to trial, relating to publications in Russia, I have to consider the question of forum conveniens. I see no reason why the court should decline jurisdiction in respect of copies of the Sunday Times itself published in Russia. At least, the Defendant is based here and it can be said that the primary publication of the newspaper will have occurred within the jurisdiction of this court. The Defendant must have information within its sales or marketing departments as to the scale and scope of its foreign publications. The Defendant knew and intended that some publication of the Sunday Times would take place in Russia.[67]On the other hand, where there have been repetitions of the allegations (mostly in Russian translation) by the Russian media, these publications (unlike the newspaper) will have originated in Russia. They relate to a Russian claimant who can only be defamed by virtue of an innuendo meaning – depending on the readers’ knowledge of Russian law and whether or not it has been complied with in Russia. Yet this is true also in relation to publication of the Sunday Times itself. In order to establish the scope of publication, the extraneous facts on which any innuendo would depend, and the number and types of person who have the knowledge, the evidence would have to come from Russian witnesses. Again, that is true in respect of the Sunday Times publications. The evidence on these issues, however, may not be controversial. It may be that it would be agreed or introduced by way of written statements. For the court to order that the Russian republications could better be tried in Russia might reasonably be seen as the tail wagging the dog. I see no reason to draw such a fundamental distinction as to the appropriate forum, as between copies of the Sunday Times published in Russia and foreseeable repetitions of its content.[68]The pleading as it stands is, therefore, not satisfactory, in the respects to which I have drawn attention, and there will be an opportunity to amend to take account of my rulings. To the extent that parts of the claim may survive and proceed to trial, it does not seem to me that the principles relating to abuse of process, canvassed by the Court of Appeal in the Jameel case, have any application. In so far as the Claimant may be able to establish her innuendo, the proceedings may ultimately achieve a measure of vindication in the eyes of some of the readers in question.[69]As and when the true scope of the issues to be tried has been finally identified, it will be necessary to have a costs budgeting hearing in accordance with the pilot scheme now operating for claims begun after 1 October 2009.

Cited in 3 later judgments