Full case report

Alvaro Sobrinho v Impresa Publishing SA

Reference [2016] EWHC 66 (QB)
Court High Court, Queen's Bench Division

Judge Dingemans J

Date of Judgment 22 Jan 2016


Summary

Libel – Portuguese Newspaper and Website – Preliminary Issues – Defamatory Meaning – Serious Harm, Defamation Act 2013 s1 – Abuse of Process


Facts

The Claimant, a citizen of Angola and Portugal, was formerly CEO and President of the Angolan subsidiary (BESA) of a Portuguese bank, Banco Espirito Santo (BES). He was also founder and chairman of the Planet Earth Institute (PEI), a charity registered in England. He brought libel proceedings over an article published in a weekly newspaper in Portugal, Expresso, with a hard copy circulation of approximately 90,000, and various Internet platforms. Expresso’s hard copy in England and Wales for the relevant edition was 136, with 52 online subscriptions. The article questioned the Claimant’s conduct while he was at BESA.

After the Claimant had commenced proceedings in England, BES collapsed and required a bail-out from Portugal’s central bank. A Parliamentary inquiry was held in Portugal, to which the Claimant gave evidence. He also issued civil proceedings against Expresso in Portugal. Following publication of the inquiry’s findings, the Claimant discontinued the civil proceedings in Portugal since he considered that coverage of the inquiry and his evidence to it had achieved all that he could have expected to have achieved by the legal proceedings in Portugal. However, the Claimant maintained the English proceedings, contending that he had a reputation in England that required separate vindication.


Issue

A trial of preliminary issues was directed to be heard as to (i) the meaning of the words complained of, (ii) whether the Defamation Act 2013 s1 requirement of “serious harm” was satisfied, and (iii) whether the action should be dismissed as an abuse of process.


Held

The article’s meaning had two aspects, the first being that the Claimant with other directors had failed incompetently in the governance of BESA, by allowing it to grant loans of some US$5.7 billion without proper compliance with internal regulations or procedures, without any or any adequate record-keeping, and without adequate collateral, leaving BESA with 80% of its loan portfolio at risk of being irrecoverable and with the obvious risk that funds had been misappropriated, and requiring a sovereign guarantee from the Angolan state.

As regards the second aspect, the use of the Portuguese word “saque” in the article’s headline, which correctly translated means “pillaging”, implied some kind of illegality. The meaning of the article in this respect was therefore that the Claimant had misappropriated many multiple millions of dollars from funds held by the bank, in the form of granting suspect loans and pillaging hundreds of millions of dollars in cash withdrawals, against the bank’s interests and for the benefit of himself, his family and many companies under his or their control and there are reasonable grounds to suspect that he did so fraudulently.

The Court noted that while, if the matter proceeds, there might be a question whether Expresso has a defence of publication on a matter of public interest (under s4 of the Defamation Act 2013), the newspaper did not contend that its article was true.

However, although the publication of such an article by a reputable newspaper might be thought likely to cause serious harm to a banker and philanthropist in the Claimant’s position, the evidence did not in this case justify such a finding. The evidence also showed that the Claimant was not likely (in the future) to suffer serious harm to his reputation from publication of the article. He had been able to put the record straight in his evidence to the inquiry and his evidence was covered by the Portuguese media, which was also available in London. The requirement of serious harm to the Claimant’s reputation under section 1 of the 2013 Act was therefore not made out.

In the circumstances, the pursuit of the proceedings was also “not worth the candle” and therefore was an abuse of process, Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75, [2005] Q.B. 946 applied. This was because the Claimant’s reputation had been so effectively restored by the reporting of his and other evidence to the Parliamentary inquiry in Portugal that it was no longer worth the time, effort and expense of pursuing proceedings in Portugal, and because coverage by the Portuguese media is available in England and Wales to about the same extent that the publication of the article was available in England and Wales.


Comment

This decision is a further contribution to the corpus of first instance authority being built up concerning s1 of the 2013 Act, including the parameters by which “serious harm” is to be proved and the role of inference in the assessment of that question.


Instructing Solicitors

Gresham Legal for the Claimant; Carter-Ruck for the Defendant


Links

Judgment