Full case report

Baturina v Times Newspapers Ltd (CA)

Reference [2011] EWCA Civ 308
Court Court of Appeal (Civil Division)

Judge Lord Neuberger of Abbotsbury MR, Sedley and Hooper LJJ

Date of Judgment 23 Mar 2011


Summary

Defamation – Innuendo meanings – Strict liability – Requirement to plead publishees with knowledge of relevant facts – Liability for third party re-publications – Foreseeability of damage – Jameel abuse of process


Facts

Yelena Baturina (C), a well-known Russian businesswoman and wife of the former Mayor of Moscow brought a libel claim against Times Newspapers Ltd (D) for their publication in the Sunday Times of two articles, one of which was headed: “Yelena Baturina: Bunker Billionairess digs deep”. The articles alleged that she had purchased a large mansion in Highgate for £50m through an offshore company based in the British Virgin Islands and that she was planning to spend a further £50m renovating and extending the property. C denied purchasing any such property and claimed that the articles defamed her in the eyes of readers who were aware of her declaration of assets made a few months previously in accordance with Russian anti-corruption legislation. Her declaration had not included this property. C also relied on the republication of the story in the Russian media.

D issued an application to strike out the claim on various grounds, including Jameel abuse of process, and C applied to amend her Particulars of Claim.

In his ruling dated 31 March 2010 Eady J refused her permission to sue in respect of hard copies sold in this jurisdiction (category (i) readers), but permitted her to sue in respect of hard copy readers in Russia (category (ii) readers). He also refused her permission to sue in respect of publication via D’s website (whether here or in Russia) (category (iii) readers). He permitted her to sue in respect of republication of the articles by third parties in Russia (category (iv) readers), but not in respect of any republications to which a direct allegation of illegality had been added on the grounds that such re-publications constituted a novus actus interveniens. C appealed in respect of category (i) and (iii) readers. D cross-appealed, contending that the claim should be struck out in its entirety.


Issue

(1) Whether C should be permitted to sue in respect of category (i) and/or (iii) readers;

(2) Whether in a claim based on a ‘legal’ innuendo a claimant had to show that the defendant knew or ought reasonably to have foreseen that the article would be defamatory;

(3) Whether the claim should be struck out in whole or in part on other grounds, including Jameel abuse;

(4) Whether C should be required to plead specific readers who understood the article to carry the innuendoes alleged.


Held

Allowing C’s appeal and (in part) D’s cross-appeal:

(1) C should be permitted to sue in respect of all four categories of readers: there was no difference in principle between the claim based on hard copy readers in Russia and those in this jurisdiction. For similar reasons, it was impossible to contend that the claim based on website readers (in either jurisdiction) could not succeed.

(2) Cases such as Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 remained good law, even after the passing of the Human Rights Act 1998. There was no basis for extending O’Shea v MGN Ltd to a case where a newspaper published an untrue story and the publisher was unable to raise a Reynolds defence. Nor was there any basis for distinguishing between ‘meaning’ innuendoes and ‘reference’ innuendoes.

(3) Subject to pleading issues, C’s case raised an issue fit to be tried, and there were no special facts which justified the claim being characterised as an abuse of process.

(4) The claim fell within the rule in Fullam v Newcastle Chronicle [1977] 1 WLR 651, not the exception to that rule, so that C should identify specific readers in the various categories who appreciated the innuendo when they read the article.


Comment

The Master of the Rolls’ requirement that C should plead readers who ‘appreciated the innuendo when they read the article’ as opposed to simply readers with knowledge of the extrinsic facts, would, if literally applied, appear to go further than the law has hitherto required. Equally, however, Sedley LJ’s doubt (para [56]) as to whether it is permissible to call innuendo witnesses to testify as to how they reacted to the articles in the light of their knowledge, also appears to be contrary to principle (see eg Gatley (11th Ed) at §34.28).


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Instructing Solicitors

Lass Salt Garvin for C; TNL Legal for D