Adelson & Anor v Anderson & Anor [2011] EWHC 2497 (QB)

[2011] EWHC 2497 (QB)Case No HQ05X02824
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/10/2011
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
(1) SHELDON GARY ADELSONClaimants(2) LAS VEGAS SANDS CORPClaimant(1) DEBBIE ANDERSONDefendants(2) UNITE HERE!Defendant
Andrew Caldecott QC and David Sherborne (instructed by Harbottle & Lewis LLP) for ClaimantsHeather Rogers QC (instructed by Simons Muirhead & Burton) for DefendantsHearing Hearing date: 29 July 2011
Judgment
[1]The words complained of in this libel action were published as long ago as 28 September 2004 at a fringe meeting of the Labour Party Conference in Brighton. The claim form was issued a year later on 26 September 2005 and served after a further six months in March 2006. The First Claimant (“Mr Adelson”) and the Defendants are all resident in the USA. Pleadings were exchanged. A trial was fixed for 22 October 2007. However, it was adjourned. By agreement between the parties the dates set aside for that trial were instead allocated to a related libel action in which the same Claimants sued Associated Newspapers Limited (“ANL”) in respect of an article published in the Daily Mail at about the same time. That action was settled by a Statement in Open Court on 19 March 2008.[2]Three years later, on 25 March 2011, solicitors for the Claimants wrote proposing a revised pre-trial timetable. On 22 June 2011, after further exchanges between the parties, the Defendants issued the Application Notice now before me. They asked that the claim be struck out in its entirety pursuant to CPR Part 3.4(2)(b) on the grounds that it is an abuse of the process of the court. It is said that the pursuit of this action would now serve no useful purpose, and that the delay gives rise to the inferences that Mr Adelson places little value on the vindication which alone is the proper purpose of a libel action, and that he long ago lost interest in pursuing these proceedings to trial.[3]There is no dispute that the claim of the Second Claimant should be struck out. This is for reasons that are unrelated to the delay that has occurred. The Second Claimant recognises that it has no cause of action, and Mr Adelson recognises that any cause of action that might have been available to a corporate claimant was a claim at the suit of a company other than the Second Claimant.[4]The Defendants submit that the two periods of delay, namely over fifteen months between September 2004 and January 2006, and about three years between March 2008 and March 2011, were inordinate and inexcusable and that it is to be inferred that the purpose of the proceedings either never was, or is not now, the vindication of Mr Adelson’s reputation. Further, there is no longer anything at stake which justifies the deployment of the resources that would be required to try this case.[5]The application is not advanced on the basis that the Defendants have suffered prejudice, or that there has been a failure to comply with the rules or a court order (CPR 3.4(2)(c)). There has in fact been a failure to comply with court orders, including the Order of Master Yoxall on 25 April 2007, ordering Mr Adelson to give further information, and ordering both parties to give disclosure, inspection and to exchange witness statements.

THE PARTIES

[6]Mr Adelson is the Chairman and Chief Executive of Las Vegas Sands Corp, a company within the corporate group referred to as Las Vegas Sands (“LVSG”). LVSG runs and develops resorts which integrate congresses and conventions, leisure entertainment and shopping, and casino based gaming. Mr Adelson is the founder of LVSG and its guiding force. The principal base of the group is in Las Vegas where its first Resort-Casino Hotel, known as the Venetian, was built in 1999. Mr Adelson is now aged 77. He built up a very substantial business empire from very modest beginnings.[7]The First Defendant (“Ms Anderson”) is the International Affairs Co-ordinator of the Second Defendant trade union. The Second Defendant is a substantial national labour union in the USA with interests in Las Vegas amongst other places. It is the largest union of workers in the gaming industry in the world. Mr Adelson and the Defendants have different views on the merits of workers being members of trade unions.[8]The background against which the words complained of were spoken is now a matter of history. In March 2002 the then Labour government in the UK produced a White Paper which recommended reform of the gambling laws, with a view to establishment of large regional casinos. It was envisaged that operators would require licences from local planning authorities and a Gambling Commission. LVSG explored potential partnerships with businesses within the UK.[9]The words complained of are conveniently summarised in the Claim Form. The pamphlet including some of the words complained of was headed “Sheldon Adelson – a review of his business practices and history”. The gist is set out as follows: “Las Vegas Sands have a terrible reputation in the US. Everyone should work with the GMB to stop them from even entering the UK market… Sheldon Adelson is the Sands… he is an aggressive man. He had peaceful protesters forcibly removed because he said they were on his property… Sheldon Adelson is perhaps the most vilified man in Nevada… he engages in very aggressive lobbying. He is egomaniacal… Mr Adelson clearly demonstrates that the problems he will bring will far outweigh any advantages”.[10]The claim is for damages and an injunction. The publication complained of was to those attending a meeting advertised under the title “New Gambling Act – Regeneration or Exploitation?” It is said to have been attended by about one hundred people. The event was chaired by the then General Secretary of the GMB union with a representative of the TGWU on the panel. These are two UK unions that had an interest in the proposed new legislation at that time.[11]The substantive defences include qualified privilege, fair comment and justification. The particulars in respect of each of these defences are substantially the same. They cover over thirty pages of the Defence. They start with events in 1989. The particulars recite many events in the course of the business career of Mr Adelson and companies with which he has been associated. It is pleaded in the Defence that the meeting at which the words complained of were published was attended by UK politicians, a variety of union leaders, lobbyists, reporters, lawyers and consultants. It is said that the Defendants discussed with the UK trade unions future co-operation between them and that there was a common corresponding duty and interest in the subject matter of the words complained of such as to give rise to qualified privilege at common law.[12]In the last paragraph of the Defence it is pleaded that the Defendants intend to continue to publish information within the USA in the exercise of their right to freedom of expression and the Claimants are not entitled to any injunction which would inhibit the exercise of that right in the USA. It is further pleaded that the Defendants intend to share information about the Claimants with those who have a common and corresponding interest in the Claimants and their conduct in particular the two UK trade unions already mentioned.[13]There is a Reply also covering some thirty six pages. This pleads in detail to the particular allegations in the Defence, and concludes with an allegation that the Defendant knew that the allegations complained of were untrue or were reckless as to their truth or falsity.[14]In March 2008 there was the Statement in Open Court in the action against ANL. That company accepted that the most serious allegations it had made against the Claimants were unfounded. It stated that, in the light of the detailed investigation of the remaining charges that had taken place since the publication of the words complained of in that action, it withdrew those charges also. ANL apologised and gave undertakings. The allegations in the action against ANL were wider than those in the present action, and included matters relating to Mr Adelson’s private life which were not published by these Defendants.[15]In so far as there is an overlap between the meanings complained of in the two actions, the Statement in Open Court includes the following. “The article also depicted Mr Adelson and by implication his business, as engaging in cut-throat and ruthless despicable business practices including that they were inordinately and unreasonably litigious, that they routinely attacked in the press any politician who sided with their enemies, and suggested that they habitually and corruptly bought favour. Examples of Mr Adelson’s alleged unreasonable litigiousness were given in the article, including… a claim for trespass demonstrating trades unionists based on what was presented as an absurd claim by Mr Adelson to end the pavement outside the Venetian Resort… The number of legal cases that the Las Vegas Sands Group has been involved in over recent years has been unexceptional given its size and the nature of its business. Mr Adelson himself has only been a party to a very few actions. Similarly, it is wholly untrue to suggest that Mr Adelson has habitually or corruptly bought political favours. His political support has been limited to making contributions to political campaigns and parties, all of which have been made in a proper and lawful way. It was incorrect to state Mr Adelson had routinely attacked political enemies. Further allegations against Mr Adelson and Las Vegas Sands made in the course of this action have been fully investigated and found to be without foundation”.

THE LAW

[16]CPR Part 3.4 includes the following: “The court may strike out a statement of case if it appears to the court …(b) that the statement of case is an abuse of the court’s process or (c) that there has been a failure to comply with a rule practice direction or court order”.[17]In CPR Part 1 (“the overriding objective”) it is provided that the court must seek to give effect to the overriding objective when exercising any power given to it by the Rules. The overriding objective is to deal with cases justly. This in turn is defined as: “1.1… (2) (c) dealing with the case in ways which are proportionate(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; … (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources whilst taking into account the need to allot resources to other cases. 1.2 The Court must seek to give effect to the overriding objective when it (a) exercises any power given to it by the rules… 1.3 The parties are required to help the court to further the overriding objective”. (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; …[18]There can be no doubt that the parties have failed to comply with CPR Part 1.3, in so far as it relates to Part 1.1(2)(d). And this court must observe Part 1.2.[19]Counsel for the Defendants have included in their skeleton argument a review of the law applied by this court in the period before the introduction of the CPR in 1999, as well as after, in considering whether delay in proceedings has been inordinate and inexcusable, and the circumstances in which it may be just to dismiss a claim in such circumstances.[20]The law in relation to defamation proceedings contains specific provisions. Throughout this period, following in particular the decision in Birkett v James [1978] AC 297, the courts have repeatedly referred to the relevant principles and struck out cases for inordinate and inexcusable delay as an abuse of the process of the court. In Grovit v Doctor (unreported) CA, 38 October 1993, approved by the House of Lords [1997] 1 WLR 640, Glidewell LJ said at page 15: “The purpose of a libel action is to enable the Plaintiff to clear his name of the libel, to vindicate his character. In an action for defamation in which the Plaintiff wishes to achieve this end, he will also wish the action to be heard as soon as possible. If the Plaintiff delays in prosecuting such an action, and gives no valid explanation for his delay, the court is entitled to infer that his motive for the delay is not a proper one. Whether or not the Judge’s suggested explanation for the delay is correct, we are entitled to infer that [the Plaintiff’s] motive in delaying is not a proper use of a libel action and this constitutes an abuse of process ”.[21]From September 1996 the limitation period for defamation claims was reduced from three years to one year. In Roe v Novak (unreported CA, 27 November 1998) Simon Brown LJ (as he then was) said at page 12: “That to my mind says much about how courts should view long delays in cases of this kind”.[22]Before the coming into force of the Civil Procedure Rules on 26 April 1999 a number of libel actions were struck out for delays of less than three years. In Oyston v Blaker [1996] 2 All ER 106 Henry LJ said at p118a-b:
“The essence of a genuine complaint in libel is prompt action…. The purpose of a libel action is to clear the plaintiff’s name…”
[23]Popplewell J struck out IDE v. London Weekend Television (unreported 4 Decmber 1998) and Williamson v Commissioner of Police for the Metropolis (unreported 10 March 1999). He said:
“If a party chooses not to pursue his claim for vindication so that it is not likely to be heard for a period of some eight years after the defamatory words are published it does not sound, at any rate, as though he is eager for there to be vindication”
. In Watson v Woodhouse (unreported 22 March 1999) Chadwick LJ said that it was: “not acceptable for the Plaintiff to set his or her own timetable and proceed at his or her own pace”.[24]In Co-operative Retail Services v. Guardian Assurance (unreported CA, 28 July 1999) May LJ drew attention to the importance of CPR Part 1.1(2)(e) and observed at page 23-24: “More recently there has been a culture change which anticipated the introduction of the Civil Procedure Rules and which was already part of the relevant law and practice in December 1998 … Failure to progress litigation, where there is no real intention of bringing the proceedings to a conclusion … is capable of being an abuse of process, which may lead the court to strike out proceedings irrespective of prejudice to defendants. An important consideration which may contribute to this conclusion has crystallised in rule 1.1(2)(e) …. It means … that there may be cases which have been so conducted that they do not in justice deserve the allocation of further court resources”.[25]In Jameel v Dow Jones [2005] QB 946 the Court of Appeal recognised a separate jurisdiction to dismiss a claim as an abuse of process, where the reputational interests at stake in the proceedings are not proportionate to the court time and the cost it would take to resolve. The court stated in a much cited passage at para 54: “An abuse of process is of concern not merely to the parties but to the court. It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that the judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice”.[26]The court in that case asked the question (para 67): “To what extent will this action, if successful, vindicate the claimant’s reputation?”.[27]The court concluded (para 70) that: “It would be an abuse of process to continue to commit resources of the English court including substantial judge and jury time, to an action where so little is seen to be at stake”.[28]In that case the Court was also concerned to note that the claim from the injunction against repetition of the words complained of would be unlikely to be of value to the claimant in that case.[29]The settlement of the Claimants’ action against ANL followed a number of interlocutory judgments delivered in that case. These included one on 19 December 2007 in which Eady J refused to disapply the limitation period when an application was made to join as Claimants corporate entities other than the Second Claimant. Eady J said at [2007] EWHC 3028 (QB) at para 20: “… genuine libel claims must still be pursued with vigour: that is the most important policy change underlying the legislative change [to reduce the limitation period to one year]. It is now 2½ years since publication, and I see no reason to disapply the disciplines Parliament chose to adopt for this form of litigation”.[30]Although that warning of the need to pursue the action with vigour was given to Mr Adelson in the ANL action, Ms Rogers submits that it applied equally to the present action.[31]Mr Caldecott submits that in the cases before the introduction of the CPR the courts struck out cases when there was prejudice to the defendant, or where there was a failure to comply with a court order (commonly an order as to the time for the action to be set down). These are not grounds relied on by the Defendants in the present case.[32]He cites Icebird Ltd v Winegardner (The Bahamas) [2009] UKPC 24, a decision of the Privy Council, in which Lord Scott said: “6. Grovit v Doctor was a case in which the plaintiff had commenced a defamation action against seven defendants. Each had admitted publication but had pleaded justification as a defence. The claims against the fourth to seventh defendants had been dismissed by consent. The third defendant had gone into liquidation and was presumably no longer worth suing. The remaining two defendants, acting in person, applied for the action to be struck-out for want of prosecution. The plaintiff's delay in proceeding with the case against the remaining two defendants was, as in the present case, somewhat over two years and the judge before whom the defendants' strike-out application was heard was "quite satisfied … on the evidence that [the appellant] has had literally no interest in pursuing this litigation". He added : "… the very existence of an action which the plaintiff has no interest in pursuing is intolerable" (see p.646 B to D). An appeal to the Court of Appeal failed and there was a further appeal to the House of Lords. Lord Woolf, whose speech was concurred in by the other members of the Appellate Committee, was satisfied that the judge and the Court of Appeal had been entitled to come to the conclusion that the plaintiff had lost interest in proceeding against the two remaining defendants (see at 647 F/G). He said (at 647 G to H) "This conduct on the part of the appellant constituted an abuse of process. The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process." 7. Their Lordships respectfully concur in the approach taken by the House in Grovit v Doctor. There had been over two years delay when nothing had been done to prosecute the action. This was because the plaintiff had "literally no interest in actively pursuing this litigation". The deputy judge had so found on the evidence. As Lord Woolf noted, delay in prosecuting an action and abuse of process are separate and distinct grounds on which an application to strike-out the action may be made but may sometimes overlap. Want of prosecution for an inordinate and inexcusable period may justify a striking-out order but "if there is an abuse of process, it is not strictly necessary to establish want of prosecution." (647H). Where, however, there is nothing to justify a strike-out order other than a long delay for which the plaintiff can be held responsible, the requisite extent or quality of the delay necessary to justify the order ought not, in their Lordships' respectful opinion, to be reduced by categorising the delay as an abuse of process without clarity as to what it is that has transformed the delay into an abuse and, where necessary, evidential support. In Grovit v Doctor the added factor was the judge's finding, made on the evidence, that the plaintiff had lost interest in the libel proceedings he had commenced and had no intention of prosecuting them to judgment. No comparable finding had been made by Lyons J in the present case and the evidential basis for any comparable finding is not apparent to their Lordships.” "… the very existence of an action which the plaintiff has no interest in pursuing is intolerable" (see p.646 B to D). "This conduct on the part of the appellant constituted an abuse of process. The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process."[33]Mr Caldecott also submits that there can be no finding of an abuse without a finding of “what it is that has transformed the delay into an abuse”. In the present case Mr Adelson had the intention of prosecuting this action to judgment.

THE ISSUES ON THE PLEADINGS

[34]The words complained of need not be set out in full. The gist of the pamphlet complained of is given by the slides and the words spoken by Ms Anderson. These are pleaded as follows:
“5.1 The slides and leaflet (At page 12 of the leaflet) "U.S. Companies Coming to the UK MGM Mirage, Harrah's, Caesars, Isle of Capri, Ameristar, and Las Vegas Sands/Venetian all have plans for UK." (At page 14 of the leaflet) "Las Vegas Sands/Venetian • Sheldon Adelson is the primary shareholder, Chair of the Board and CEO • Las Vegas Sands Las Vegas Venetian Venetian Macau • UK Target for Expansion Glasgow and Sheffield" Controversial Business Practices and Record in Nevada "Adelson is so intense and arrogant he's easy to dislike. He's such a notorious micromanager that he drives people bananas." John L. Smith, Las Vegas Review Journal "Sheldon Adelson is perhaps the most vilified man in Nevada." Steve Sibelius, Las Vegas Review Journal" (At page 15 of the leaflet) Controversial Business Practices and Record in Nevada • Repeated conflicts with governmental and regulatory agencies Nevada Gaming Commission imposed a $1 million fine in 2004 on the Venetian for rigging contests and violating other Nevada gaming regulations. Ongoing litigation with the U.S. Equal Employment Opportunities Commission. Lawsuits to delay the expansion of the Las Vegas Convention Center, which competes with his privately-owned Sands Expo Center. • Extremely litigious Over 150 lawsuits in Clark County over the last 10 years • Come under fire for working conditions at the Venetian "Less than impressive" severance package for 1,200 laid off Sands workers Failed to pay proper back pay to workers Attempted to arrest workers and their supporters for protesting on sidewalks in front of the Venetian Subcontracts substantial numbers of jobs at the Venetian • Many offer substandard wages and benefits • Uses wealth to try to oust politicians who cross him • Repeatedly characterised as difficult to work with and "terrorizing those who get in his way" 5.2 The First Defendant spoke the following words in the course of displaying the slides containing the words at 5.1 above: "Las Vegas Sands have a terrible reputation in the US. Everyone should work with the GMB to stop them from even entering the UK market. … Sheldon Adelson is the Sands. He is an aggressive man who had peaceful protesters removed because he said they were on his property. … Sheldon Adelson is perhaps the most vilified man in Nevada … Sheldon Adelson engages in very aggressive lobbying. He is egomaniacal. … Mr Adelson clearly demonstrates that the problems he will bring will far outweigh any advantages.”
MGM Mirage, Harrah's, Caesars, Isle of Capri, Ameristar, and Las Vegas Sands/Venetian all have plans for UK." Las Vegas Venetian Venetian Macau Glasgow and Sheffield" Controversial Business Practices and Record in Nevada John L. Smith, Las Vegas Review Journal Steve Sibelius, Las Vegas Review Journal" Controversial Business Practices and Record in Nevada Over 150 lawsuits in Clark County over the last 10 years Failed to pay proper back pay to workers Subcontracts substantial numbers of jobs at the Venetian who get in his way" Sheldon Adelson is perhaps the most vilified man in Nevada … He is egomaniacal. … Mr Adelson clearly demonstrates that the problems he will bring will far outweigh any advantages.”

He is egomaniacal. …

[35]The particulars in the Defence all relate to matters which occurred in the USA. There are no events pleaded that occurred in England and Wales. The particulars are pleaded under four headings: i) The Claimants’ conflict with government and regulatory authorities. These are in paras 7.15 to 7.20. The events pleaded all occurred in 1998-2004. ii) The Claimants’ involvement in litigation. These are in paras 7.21-7.26. The events pleaded all occurred in 1991-2003. iii) The Claimants’ treatment of workers and hostility to unions. These are in paras 7.27 to 7.31. The events pleaded all occurred in 1996-2003. iv) The use by the Claimants of their wealth in lobbying, making donations to political parties and candidates for office and campaigning. These are in paras 7.32 to 7.40. The events pleaded all occurred in 1988-2005. v) The Claimants’ reputation is pleaded in para 7.41. The matters pleaded all occurred in 1996-9.[36]Mr Caldecott summarises the issues in relation to (i) and (ii), saying that the facts alleged are not the subject of much dispute, and that the issues turn substantially on the interpretation of events. In relation to (iii), again the issues are largely ones of interpretation. In relation to (iv), there are issues as to the lawfulness of the payments.[37]The nature of the dispute can be seen from the following example. I shall consider below the gravity of the allegations.[38]In para 7.28 of the Defence it is pleaded:
“7.28 The Claimants' hostility to union membership for its workers is further demonstrated by the following matters: 7.28.1 In their plan for The Venetian, the Claimants wished to maintain control over the pavements (sidewalks), rather than dedicate them as public spaces. If successful, this would have had the effect of preventing protest on pavements outside The Venetian. The Second Defendant and the American Civil Liberties Union ("ACLU") were concerned about this matter; the ACLU representative stated that the dedication of public sidewalks should be the centrepiece of any predevelopment agreement; and there was public debate and discussion of the proposal. The Claimants knew that their plan would inhibit public protest and, in particular, union activities, and intended that it should have that effect. Ultimately, the existing sidewalk had to be relocated on the Claimants' property in January 1999 (as a result of the traffic study's recommendation for the widening of Las Vegas Boulevard); the Claimants entered into an agreement (through the Venetian LLC) with the Nevada Department of Transportation that the Claimants would build and maintain a private sidewalk connected to the public sidewalks at each end, with a grant of a public right of way, so as to provide "unobstructed pedestrian access". 7.28.2 In February 1999, the Second Defendant's affiliates, Culinary 226 and the Bartenders Union Local 165 were given permission by Clark County to hold a demonstration on the temporary walkway then in place. The Claimants put up signs, claiming private rights over the walkway and, when the demonstration took place on 1 March 1999, asked the police to arrest and remove the demonstrators as trespassers (which they refused to do). After Clark County indicated that it would issue further permits to unions to protest, if asked, the Claimants issued court proceedings (through the Venetian LLC), suing the County and Police for declarations of their right to exclude whomsoever they wished from their property and to obtain injunctions. 7.28.3 In April 1999, the district court denied the Claimants' request for a preliminary injunction. Although they appealed that order, they subsequently withdrew their appeal. 7.28.4 The Claimants then asked for summary judgment from the District Court. On 20 August 1999, the District Court rejected the Claimants' claims and gave summary judgment in favour of Clark County and the intervenors (various unions and the ACLU). 7.28.5 The Claimants' appeal was dismissed by the 9th Circuit Court of Appeal on 12 July 2001. The sidewalk alongside The Venetian's frontage onto Las Vegas Boulevard historically had been a public forum. As declared by the US Supreme Court, streets and sidewalks are the archetype of a public forum, in which citizens are entitled to exercise their free speech rights under the First Amendment. 7.28.6 The Claimants' attempts in 1999 to have protestors arrested for picketing on the pavements outside The Venetian resulted in a lawsuit and an unfair labour practice charge, alleging violations of the National Labor Relations Act (for threatening to arrest anyone who picketed outside the resort). The Venetian was ordered to post conspicuous notices advising employees that they had the right to join or assist a union. The ruling in court was affirmed by the Court of Appeal.”
[39]In para 7.28 of the Reply it is pleaded:
“7.28 As pleaded above it is denied that the Claimants are or were inherently hostile to union membership for workers, or that the sidewalk litigation demonstrates such, or evidences 'mistreatment of workers' or 'hostility to unions' generally. The Defendants' attempt to contend to the contrary is thoroughly disingenuous: prior to their own demonstration outside the Venetian (as pleaded in paragraph 7.28.2 of the Defence), they had organised a similar demonstration in similar circumstances outside the MGM Grand, as pleaded in paragraph 7.28.3(e) below, which resulted in litigation brought by various Union organisers including Glen Arnodo and the Union against the MGM Grand. By Stipulation for Judgment of Dismissal With Prejudice dated 30 April 1996, the Plaintiffs (including the Union) expressly acknowledged (at paragraphs 24 and following) the right of the MGM Grand to exercise rights of private property ownership on the sidewalk outside the casino, including the right to arrest picketers. 7.28.1 As to this paragraph, the true position is as follows. It is admitted and averred that the Claimants, entirely reasonably, wished to maintain lawful control over their private property (including the ability to keep away 'smut peddlers', prostitutes and other unsavoury types) and lawfully to protect themselves from unlawful trespass and unwarranted disruptions to their business. For this reason the Claimants were justifiably concerned about the Union's interest in whether or not the sidewalks would be private or public, and not because they wished to stifle genuine public protest or legitimate union activities. The last sentence is admitted save that it is denied that the Claimants ever granted a public right of way over the private sidewalk: they agreed with the State to maintain "unobstructed pedestrian access" to the sidewalk. 7.28.2 As part of the predevelopment discussions with Clark County, The Venetian LLC had volunteered to build a sidewalk on its private property to accommodate pedestrian travel. In doing so, The Venetian granted access to pedestrians traversing its property but retained all other rights concomitant to private property ownership, including without limitation the right to remove protestors and obstructions. Although Clark County initially gave permission to the Second Defendant's affiliates to hold a demonstration, that permission was subsequently withdrawn. Save as aforesaid this paragraph is admitted. 7.28.3 This paragraph is admitted as are paragraphs 7.28.4 to 7.28.6. The Claimants' actions were, however, reasonable and justified, having regard to the following. (a) The demonstration organised by the Union (with the Bartenders Union Local 165) was a very large rally, with platforms and piled-up picket signs, obstructing access to The Venetian and access to and use of the sidewalk. It was organized in furtherance of the Union's aforesaid campaign, to harass the Claimants and their business, and in complete and utter disregard of their property rights. So many protesters were congregated by the Union that The Venetian's patrons and other Las Vegas tourists could not pass through and were forced onto the busy street. The Venetian called the Metro police department for assistance and asked - to no avail - that the protesters be removed from its private property. (b) The Union was at all times able to demonstrate elsewhere. (c) The Claimants' reasonable and peaceable response was to seek by the ensuing litigation (pursued by Venetian LLC) to assert in good faith property rights reserved under the agreement with the Department of Transportation and to protect The Venetian and its employees from the Union's actions. (d) It was by no means obvious that the public use provided for by the agreement with the Department of Transportation entitled use of the sidewalk for demonstrations and picketing of The Venetian. The Claimants were not seeking to prevent free expression of hostile or unwelcome views but to protect property rights, their business and their employees. Although the District Court held that the sidewalk had become a "public forum" by virtue of which the Union was entitled to demonstrate in the exercise of its First Amendment rights, this was not clear law such that the Claimants could not reasonably pursue the contrary case before the District Court and on appeal - as is evidenced by the fact that the 9th Circuit Court of Appeals only upheld the District Judge by a 2:1 majority. The Claimants will refer in this regard to the trenchantly expressed views in the dissenting judgment of Senior Circuit Judge Brunetti, and the terms of the Stipulation referred to above in connection with the picketing of the MGM Grand to which the Defendants themselves were parties. In the words of Senior Circuit Judge Brunetti: 'It is axiomatic that the First Amendment only applies to state actors and therefore that the Constitution does not provide protection or redress against abridgment of the free expression by private individuals or corporations. However the majority opinion seemingly ignores this fundamental axiom and today applies the First Amendment to a private corporation's regulation of its own private sidewalk, which was built on a portion of property that has always been private'. (e) On the MGM Grand's opening day, in very similar circumstances in 1994, some 500 trade unionists had been arrested by the police for picketing on the sidewalk on Tropicana Boulevard, that Casino having asserted that it was private property. The demonstration had been organized by the Union following the announcement by MGM Chief Executive Officer Bob Maxey that the MGM would open without a union contract. ...”
[40]In para 8.7.3 of the Reply there is the plea of malice in relation to this issue, as follows:
“8.7.3. As regards the allegation of the First Claimant 'attempting to arrest workers and their supporters for protesting on the side walk outside the Venetian', not only did the Defendants omit to point out that the sidewalks were in fact private property, owned by the Claimants, but their stance was thoroughly disingenuous for the reasons pleaded under paragraph 7.28 above. The Defendants included the quotation from a Steve Sibelius article in the Las Vegas Review-Journal about the First Claimant 'terrorizing those who get in his way', but this was a serious distortion of the referenced article: the article in fact praised the First Claimant's challenge to the “L VCVA” and questioned its tactics, and it offered readers two alternative views on the First Claimant: 'Love him as an earnest businessman trying to make money, or hate him as the Saddam Hussein of the Strip, terrorizing those who get in his way'. The Defendants were (manifestly) only interested in the negative view. The Defendants stated that the First Claimant's 'lobbying efforts targeting Nebraskan legislators caused debate in Nebraska when legislators stayed at the Venetian for a conference', citing in article in the Omaha World Herald of 28 March 2004 in support. Crucially, however, the underlying article did not allege that the legislators were staying at the Venetian as guests of the First Claimant, and indeed this allegation was explicitly denied by one of the legislators: 'There's not one penny of state money and not one penny of Venetian money being used.”
THE DELAYS AND THE EXPLANATION FOR THEM The first period of delay

THE DELAYS AND THE EXPLANATION FOR THEM

[41]The first period of delay is the period from the date of the words complained of in September 2004 until the letter before action on 17 January 2006, a period of more than 15 months.[42]The evidence about this is very thin. This is surprising, as Ms Rogers submits. The point was taken in the Defence, in mitigation of damage. It is said that “had the publication caused any damage to the Claimants … a complaint would have been made shortly after publication took place”.[43]The Reply states no more than that “the Claimants will deal with the reasons for the gap in time … in their evidence for trial…” In fact it has been addressed in the witness statements, but without any reasons emerging. Mr Adelson states that he is now unable to recall the relevant details. A Mr Weidner who was the Chief Operating Officer has left the company, but only in 2009, and no information is given of any instructions that may have been taken from him. Mr Adelson refers to articles in the press in which a brief summary of the words complained of is given, together with responses from those representing himself. Those articles are not relied on in aggravation of damages, nor were the publishers sued, other than ANL.[44]What does appear clearly is that there were two representatives of Mr Adelson, or his companies, at the meeting where the words complained of were published. There is a file note from Mr Brody. He states in his witness statement that he worked closely with Mr Weidner and others. The others, who were asked for their recollection, said they had none. Mr Brody states the he discussed the matter with Mr Weidner. According to the file note, the strategy that he advised included:
“- Draft rebuttal note of Unite Here! document - Address legal questions raise by Unite Here! document - Distribute rebuttal document as appropriate…”
[45]According to a print out from The Guardian dated 9 November 2004 there was a statement from one of Mr Adelson’s companies. It is quoted as follows: “We take very seriously any violation of our stringent compliance policies and the presiding gaming regulations. In February 2003, the Venetian Resort Hotel Casino agreed to pay $663,000 plus expenses in settlement with the Nevada Gaming Control Board pertaining to specific events which occurred between 1999 and 2002. The Venetian ‘self-reported’ the occurrence of improper behaviour by a small group of rogue employees. They were swiftly dealt with and their employment terminated”.[46]This settlement is one of the matters relied on by the Defendants in their Defence. There is an issue on the pleadings as to whether the improper conduct was self-reported, but not as to whether it occurred. If this action proceeds to trial, the court will have to distinguish between damage done to the reputation of Mr Adelson by facts truly stated by the Defendants, such as the foregoing, and any facts which were not truly stated. The extent of the admissions in the Reply suggests that this will be a point to be considered in relation to many of the matters relied on by the Defendants.[47]According to the claimants’solicitor witness statement, Mr Adelson “is very clear that as soon as he was told about the Defendants’ speech and pamphlet, and the allegations that they had made about him, he gave instructions to pursue legal action against the Defendants”. If that is correct, the people working for his companies did not tell him for about a year, and there is no explanation for that delay.

The second period of delay

[48]This is a period of some three years from March 2008 until March 2011.[49]On 8 February 2007 there was an order for disclosure by 15 March 2007 and other directions which were not complied with. On 25 April 2007 there was the consent order which was also not complied with. A reply to the Defendants’ request for Further Information was to be served by 21 May 2007, standard disclosure by 26 June, and witness statements by 28 August 2007. In July 2007 this action was adjourned to allow the ANL action to go first, and it was contemplated that this action would tried in January 2009. On 4 July 2007 solicitors then acting for the Claimant wrote that they would not be in a position to comply with the order for Further Information any earlier than 24 August 2007, and could see no reason for disclosure in September 2007, because that would interfere with the preparations for the trial of the action against ANL.[50]Following the settlement of that action in March 2008, solicitors for the Claimants telephoned solicitors for the Defendants to say the Claimants wanted to get on with the case, but nothing more concrete was said or done.[51]In July 2008 the solicitors now acting for the Claimants came on the record. Between October 2008 and March 2011 there were letters exchanged without prejudice, and there was the attempt at mediation. Mr Caldecott accepts that there was a gap in the correspondence between January 2009 and October 2009. He submits that mediation is to be encouraged, and referred to the sanctions that can be imposed on a party, for example in costs, where a party has refused to agree to ADR (White Book 2011 para 44.3.13.1).[52]The mediation proceedings took place on 2 and 3 March 2011. On 25 March 2011 solicitors for the Claimants wrote stating that they had instructions to proceed with the action. On 15 April 2011 solicitors for the Defendants wrote noting that the Further Information was still outstanding. They referred to the delay of 4 years since the letter of 27 June 2007 that had promised the response by 24 August 2007. They did not mention any application to strike out on account of the delay of which they complained although they said that all their clients’ rights were reserved.[53]I accept that where the parties agree upon a mediation, a reasonable period for mediation must be allowed, before it can be said that delay becomes an abuse of process. But that period cannot be as long as the substantial part of the three years here in question. There is no good explanation for the greater part of this second period of delay.[54]Before considering what inferences I ought to draw, I turn to consider the gravity of the alleged defamation.

GRAVITY OF DEFAMATION ALLEGED

[55]It is not suggested by Ms Rogers that the words complained of were so lacking in gravity that the proceedings were an abuse of process from the start, as was the case in Jameel. Nor has it ever been suggested that England was not the appropriate place in which to litigate this dispute. It is true that the parties are all American, and that all the facts and matters relied on by the Defendants in their Defence occurred in the USA. But the Defendants came to England to publish the words complained of, and Mr Adelson has a substantial reputation here as a businessman, notwithstanding that he does not in fact carry on business here in any substantial way.[56]What Ms Rogers does submit is that it is to be inferred from the first period of delay that Mr Adelson did not consider that the defamation was particularly serious in the period up to the letter before the issue of the proceedings in September 2005. She further submits that with the passage of time, and absent any evidence of any impact that the words complained of may have had on Mr Adelson in the intervening 7 years, there is nothing to be achieved by Mr Adelson in continuing with this action as from now which is proportionate to the resources that would be required to resolve the dispute.[57]Mr Adelson’s evidence as to the gravity of the defamation is vague. At the end of his witness statement he states that he has strong reasons for needing vindication. First, he refers to reports of the words complained of in the press in 2004 and 2005, of which the latest is an article in the Glasgow Herald in September 2005. That is a newspaper with some circulation in England and Wales. Second, the Defendants are persisting in a plea of justification. Third, he refers to the online archives where those press articles remain accessible. Mr Adelson says he does not want his children and grandchildren to go on to the internet and find these articles without something also being available which recognises that what was said about him was not true. The same goes, he states, “for people I do business with all around the world”.[58]I note that none of these articles is relied on or sued on in any action, and that the ones he refers to also contain comments setting out his side of the controversy. They are not repetitions in terms of the words complained of. They are brief summaries of the allegations. And amongst the matters that would be available to a person who searched old archives there is the apology in open court made by ANL .[59]There is no suggestion in the evidence that the words complained of have in fact been repeated by anyone since 2005, or that they have caused any inconvenience or trouble to Mr Adelson anywhere in the world. The “people I do business with” are not identified, and there is no evidence that anyone has read the words complained of since 2005. It is, of course, in the nature of libels that the subject does not know where the allegations have spread to. But it is unusual for the court to consider the position seven years after the event. If after seven years there is no evidence of any repetition, that is a factor that the court can take into consideration in assessing the gravity of the alleged libel.[60]Mr Caldecott submits that a libel remains a libel, and while the action may be subject to a limitation period, the libel itself is not. I accept that there are some libels which are so serious that they may remain damaging for many years or even a lifetime. Some may be so serious as to be incapable of eradication. But with other allegations the passage of time must diminish either the effect of the libel, or the possibility of countering that effect by means of legal proceedings. That that is the view of the legislature is to be inferred from its decision to curtail the period of limitation to one year.[61]The verdict of a jury, or a trial judge, is required to be based on the view of the reasonable reader or hearer of the words complained of. A person’s reputation in business will, in the ordinary way, be judged by a reasonable person on events in the recent past. The allegations complained of in this action are of Mr Adelson’s way of doing business. They are important to him as a businessman, but do not in my judgment rank amongst the most serious libels. Those people concerned today as to the manner in which he does business may do research on the internet. But a reasonable reader of the words complained of who reads them in 2011, or in the future, will also have regard to what he learns about Mr Adelson’s activities in the period since September 2004. If there are continuing allegations of the kind made in this action (and I do not say that there have been), then it is the more recent allegations that ought reasonably to be given the greater weight (other things being equal). And if there have been none, then that fact alone would be understood by the reasonable reader to indicate that less weight should be given to the allegations than would have been appropriate had the allegations been recent.[62]I do not overlook that, in 2004, one of the MPs attending the fringe meeting later described the allegations as ‘pretty horrific’. But I also bear in mind that that MP was a member of the Labour Party and the GMB, and that the allegations were made by representatives of a trade union with whom Mr Adelson had a number of differences. A reasonable reader looks at defamatory allegations in context. Part of the context is who is making the allegations. Strong words published by trade union leaders about an employer are part of common discourse in public life in England and Wales. A reasonable reader will recognise the interests of the speaker, and make allowance for that.

THE INFERENCES TO BE DRAWN

[63]Ms Rogers submits that the events of 2004 are so long ago that it would be surprising if any of the hundred or so people who attended the fringe meeting remembered what was said today. This is not comparable to the millions of readers of the allegations published in the Daily Mail. There is no evidence of repetition, and the circumstances today are quite different. Mr Adelson is not today engaged in discussions and plans for operating casinos or other businesses in this jurisdiction. His explanation about his grandchildren and unidentified business people has an air of unreality.[64]I accept Ms Rogers’ submission on this point. I do not doubt that at some point Mr Adelson did intend to prosecute the action to trial. But I infer that he ceased to have that intention after the settlement of the ANL action in March 2008. He appears to have reformed that intention now. He was present throughout the hearing, apparently with a view to conveying that impression.[65]I also infer from the delay in bringing proceedings that he did not regard the allegations as particularly grave in 2004 and 2005. He had other ways by which he could, and did, set about vindicating his reputation. He published his side of the story, employing professional people to do that, in a manner which might be expected of a businessman with his very extensive resources.[66]In my judgment, whatever the position may have been in 2005, if he were to succeed in defeating the defence of justification at a trial in 2012, that would achieve very little indeed. And the prospect of him doing so must be doubtful. I say this not because I have formed a view as to the likely outcome of the case on justification. I express no view on that. Rather, I refer to the fact that the defences also include qualified privilege. If that defence succeeds (and again I express no view on whether it will or not) then he will achieve even less by way vindication, even if the court finds that the words complained of are false. The position might be different if justification were the only defence pleaded. For then the trial would be more likely to result in a clear finding as to the truth or falsity of the allegations complained of.[67]Further, there is no real prospect of a court granting an injunction in this case. There is no evidence that the Defendants are threatening to repeat the words complained of in England and Wales. And lest anyone should be in any doubt, I add that no English court would contemplate the grant of an injunction to restrain these Defendants from publishing allegations about Mr Adelson in the USA. Any relief granted by an English court would be in respect of wrongs committed, or threatened to be committed, in England and Wales.

RESOURCES OF THE ENGLISH COURT

[68]Since there has as yet been no disclosure or exchange of witness statements it is impossible to assess the time any trial of this action would be likely to require. I accept that there have been many admissions on the pleadings, and that there may be more admissions as to facts at present in dispute. I note that it has not been argued that there is prejudice to the Defendants as a result of the delay. The First Claimant contended (and the Defendants did not dispute) that the trial should be expected to be conducted substantially on documents and not on oral evidence of the facts. So there is not said to be the loss of memory which is often relied on in cases of delay. But even if all this is true, it is plain from the issues on the pleadings that the case would take a considerable time to try. Although this point was not raised in argument, it seems to me that an English court might well require considerable assistance from witnesses (including expert witnesses) in interpreting the documents relating to labour disputes, regulatory matters, political donations and the like, all of them in the USA. The English court would not know the relevant applicable laws and social conditions and customs. I would expect considerable time to be required.

DECISION

[69]In my judgment what is now at stake in this action does not justify the deployment of those resources. So I must strike out the action for that reason. I would also have struck out on the basis that Mr Adelson ceased in March 2008 to have the intention of prosecuting the action to trial.

ENFORCEABILITY OF ENGLISH JUDGMENTS IN THE USA

[70]There is one point made for the Defendants which I reject. It is said to be relevant that any award of damages will be unenforceable in the USA. In my judgment that submission is irrelevant, even if it is correct as to US law (as to which I can reach no view on the evidence before me).[71]In his witness statement Mr Shotnes states that he has been advised by a practising American lawyer, Mr Alexander Rufus-Isaacs, that on 10 August 2010 there was enacted the US Federal Act the Securing the Protection of our Enduring and Established Constitutional Heritage Act now codified at 28 USCA §§ 4101 to 4105. It includes:
“§4102. Recognition of foreign defamation judgments (a) First Amendment Considerations.— (1) In general.—Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that— (A) the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located; or (B) even if the defamation law applied in the foreign court's adjudication did not provide as much protection for freedom of speech and press as the first amendment to the Constitution of the United States and the constitution and law of the State, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of the State in which the domestic court is located.”
[72]Mr Shotnes does not exhibit any expert report, but he states that Mr Alexander Rufus-Isaacs has confirmed that that Act “makes foreign defamation judgments unenforceable in the United States unless it can be shown that such judgments satisfy the freedom of speech and press protections guaranteed by both the United States and the state constitutions in which the domestic court is located”. Mr Shotnes also sets out in nine lines of text differences which Mr Alexander Rufus-Isaacs states exist between English and American law. On this basis he advises that it is most unlikely that any judgment obtained in this action could be enforced in the USA. He cites two American cases: Bachchan v India Abroad Publications, Inc 154 Misc 2d 228, 585 NYS 2d 661 (Sup Ct NY Co 1992) and Matusevitch v Ivanovich 877 F Supp 1 (1995); 23 Media L Rep 1367 (although it is the judgments of the Maryland Court of Appeal that are the most significant: 347 Md. 561, 702 A.2d 230. These are well known to media lawyers in this jurisdiction: Carter Ruck on Libel and Privacy 6th ed paras 7.40-7.43.[73]As the opening words of §4102 make clear,the legislation in the USA arises out of the First Amendment to the Constitution of the USA. In 1964 the US Supreme Court as New York Times Co v Sullivan (1964) 376 U.S. 254 recognised that the First Amendment applied to state laws on defamation. The Court addressed the problems raised by defamation in the context of discussion of matters of public interest by holding that greater protection to freedom of speech is required where the claimant is a public figure than the protection given hitherto by the laws of the United States, or by the laws of many other jurisdictions in the world which recognise freedom of speech. Since 1964 the law of defamation in many other common law jurisdictions has developed to give increased protection to freedom of speech in the context of defamation, but without adopting the same approach as the US Supreme Court. The reasons why other jurisdictions have adopted approaches that differ from the approach adopted in the USA have been considered in a number of judgments, including, for example: the High Court of Australia in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, the Supreme Court of Canada in Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130 and WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 SCR 420; the Court of Appeal of New Zealand in Lange v Atkinson [1998] 3 NZLR 424; [2000] NZCA 95 and the Defamation Act 2009 s.26 of the Republic of Ireland. The House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 explained why English law should adopt a different approach. English law does not recognise any distinction based on the personality of the claimant as a public figure. It distinguishes cases by the degree of public interest in the content or subject matter of the speech, and the occasion of the publication.[74]An English court should express no view about the law of the USA. Each jurisdiction has its own laws to protect freedom of expression. These are established by its own democratic procedures, and reflect the Treaty obligations that each has undertaken. The Treaty obligations of the UK include those set out in the European Convention on Human Rights, and the UN Convention on Civil and Political Rights, both of which the UK has ratified. Both of these follow the model of the Universal Declaration of Human Rights (which does give rise to treaty obligations, but was proclaimed by the General Assembly of the United Nations on 10 December 1948). These texts recognise a right to freedom of speech, but they also recognise the right to reputation, which is not recognised as a constitutional right in the US Bill of Rights (and state Constitutions). The ECHR, the Universal Declaration and the UN Covenant give no automatic priority to freedom of speech. See Arts 8 and 10 of the ECHR (as interpreted in the Strasbourg jurisprudence), Arts 12 and 19 of the Universal Declaration, and Arts 17 and 19 of the UN Covenant.[75]In any event, the summary of English law given by Mr Shotnes in nine lines, contrasting it with the position in the US, does not give a fair and accurate account either of English law, or of the law of defamation as it is in fact applied today in adjudications by English courts. The summaries of English law given in the US judgments in the mid 1990s in Matusevitch cannot be taken as an accurate statement of English law as it is in 2011, nor as an accurate statement of the law as it is applied in defamation cases raising issues different from those raised in the Matusevitch case.[76]It is correct that under English law there is generally a presumption that defamatory statements are false, so that the burden of proving truth is placed on defendants. In the many cases where the defamatory words complained of also imply the commission of a criminal offence, the presumption of falsity corresponds to the presumption of innocence. However, there are cases where the claimant in defamation proceedings is obliged to prove falsity. And in almost all cases that come to trial, claimants choose to assume that burden, whether or not the law requires it.[77]A claimant is obliged to prove falsity if he seeks a declaration of falsity under the Defamation Act 1996 Act ss8 and 9(1)(9)(a). One example is Bin Mahfouz v Ehrenfeld [2005] EWHC 1156 (QB). In that case the claimants obtained a default judgment on 7 December 2004 (para [21]), but they chose not to rely upon the presumption of falsity under the general law of defamation. Instead, the claimants set out to, and did, obtain a declaration of falsity under the Defamation Act 1996, for which they had to prove that the allegations against them were false (“Let it therefore be clear that these claimants are not depending upon the presumption of falsity which operates under English libel law. They have provided evidence to the court ….”: see paras [1] and [29]). Where, as happened in Ehrenfeld, the defendant is unable or unwilling to defend the claim by adducing evidence contradicting the evidence of falsity which the claimant has adduced (and in that case the defendant did not challenge the jurisdiction of the court either), the claimant is entitled to assume the burden of proving falsity and the court may find that he has discharged that burden.[78]Claimants choose not to rely on the presumption of falsity, because unless they prove falsity they are unlikely to be awarded substantial damages or an injunction. An example of a claimant choosing to prove falsity for such reasons is Metropolitan International Schools Ltd (t/a Skillstrain and/or Train2game) v Designtechnica Corporation (t/a Digital Trends) [2010] EWHC 2411 (QB) paras [5] and [6]. I would expect Mr Adelson to seek to prove falsity in this case, and not to rely on any presumption. His Reply lays the foundation for his attempt to prove falsity.[79]In Matusevitch the defamatory meaning of which the plaintiff complained was that he advocated various racist and anti-semitic policies. It is recorded that he conducted his own case ([1992] 2 A.C. 343 at p 351), and that he sought to prove malice, but failed (p345). The jury awarded him the (by English standards) very large sum of £240,000 by way of damages. The law reports of the proceedings in that case (both those of the English and of the US courts) do not record what evidence the claimant adduced. So it is not possible to be sure from reading these reports whether at the trial he relied on the presumption of falsity, or whether he adduced evidence to prove falsity. There are a number of possible ways in which a trial might proceed in a case where there is no pleaded defence of truth or justification. The defendant may admit falsity, as defendants sometimes do. Mr Matusevitch does not appear to have admitted falsity. Secondly, the plaintiff may choose to rely on the presumption of falsity, that is to say, the plaintiff might have chosen not to put before the jury evidence as to whether or not he advocated racist policies. Thirdly the plaintiff might have chosen to assume the burden of proof, and to give evidence that he did not advocate such policies. Since the meaning complained of related to policies of the most offensive kind that he was alleged to have advocated, and since he was seeking to prove malice, and since the jury awarded so large a sum in damages, it would seem to me likely that he did adduce evidence that the words complained of were false, and that he did not simply rely upon the presumption.[80]The Maryland Court of Appeal attached considerable importance to the presumption of falsity in English law, but on the material before me I am unable to say whether the US courts made their decisions on the basis that the plaintiff relied on that presumption (that is, adduced no evidence to prove falsity), or on the basis that the plaintiff did adduce evidence to prove falsity, in spite of the fact English law did not require him to do so.[81]Similarly, while in many cases under English law claimants are not required to prove malice, in some cases they are required to prove malice. And whether the law requires them to do so or not, in practice claimants commonly assume the burden of doing that, not only in cases involving public figures, but also in other cases. In cases under the Defamation Act 1996 s4 (which applies where a defendant admits falsity) the claimant is required to prove malice, whether the claimant is a public figure or not: eg Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB). Even where the law does not require a claimant to prove malice, claimants commonly assume that burden, for various reasons. One reason may be in order to advance a claim for aggravated damages, and another may be to defeat a defence of privilege or fair comment. In this case Mr Adelson has assumed the burden of proving malice: see the Reply para 8.12.[82]I express no view as to whether Mr Adelson is likely to be able to prove falsity and malice in the present case, if it were to go to trial. But Mr Shotnes does not explain how the US legislation he refers to would apply to a case in which the English court has adjudicated that the claimant has in fact proved both falsity and malice, to the same standard as he would have been required to do if he had sued a public figure in the USA.[83]Moreover, there are provisions of English law which provide protections for freedom of speech to which Mr Shotnes makes no reference. Developments in English law since the judgment in Matusevitch include Reynolds privilege, the redefinition of the defence of comment and of malice in Spiller v Joseph [2010] UKSC 53;[2011] 1 AC 852, [2011] 1 All ER 947, the Defamation Act 1996, and the limits now placed upon awards of damages for defamation since Rantzen v Mirror Group Newspapers [1994] QB 670.[84]It is likely that the award of damages of £240,000 in Matusevitch would now be regarded as excessive under English law. It has come to be recognised that very large awards of damages and costs (and that includes awards of less than the equivalent of US $1 million) are contrary to the protection for freedom of speech guaranteed by Art 10 of the European Convention on Human Rights: see Tolstoy v UK (1995) 20 EHRR 442 and MGN v UK [2008] ECHR 1255;[2011] 53 EHRR 5; [2011] EMLR 20. So an English court would now agree with the US courts that the award in Matusevitch is inconsistent with the principle of freedom of expression, although the reasons that would now be given for that view in English law are not reasons that were referred to in the judgment of the Maryland Court of Appeal (347 Md. 561, 702 A.2d 230).[85]Mr Shotnes gives no information as to how the US courts would address protections for freedom of speech guaranteed under English law which are not afforded under US law (if there be such). It is a matter of common knowledge that a significant proportion of the damages awards made by juries in American courts in recent years have been in millions of dollars, and some of these have been upheld on appeal. See “Study Of Media Trials Celebrates 30 Years, Analyzes 9 New Trials For 2009: 3 Wins, 6 Losses” published by the Media Law Resource Center and available at :
“http://www.medialaw.org/Content/NavigationMenu/About_MLRC/News/Damages_2010_press_release.pdf”
[86]It is also a matter of common knowledge that public policy on the proper level of damages for torts generally is a matter on which there are very different views reflected in the laws of the UK and the USA respectively. This is a reason why the UK has no treaty with the USA for the reciprocal enforcement of tort judgments. The UK has such treaties with many other states.[87]Further, judgments are commonly given by English courts against defendants from whom no payment is expected to be obtained. This may be so for various reasons. An example may be that the judgment makes the defendant bankrupt. Damages are assessed on the basis of the compensation, including vindication, (if any) which is required for the claimant. They are not assessed on the basis of the extent to which the judgment is expected to be enforceable.

CONCLUSION

[88]For these reasons this application succeeds and the action will be struck out.

Cited in 7 later judgments