Full case report
Mionis v Democratic Press SA and others
Reference  EWCA Civ 1194
Court Court of Appeal
Judge Gloster, Sharp and Lindblom LLJ
Date of Judgment 31 Jul 2017
Appeal – Defamation – Article 10 of the European Convention – Section 12, Human Rights Act 1998 – Settlement – Whether Judge below was correct to have refused application to lift a stay in the proceedings imposed by a Tomlin Order
On 13 November 2013, the parties settled a libel action by way of a settlement agreement scheduled to a Tomlin Order. The libel action concerned a series of articles published in the Ds Greek language newspaper about the C and the Lagarde List.
The action was settled after the Ds had issued a challenge to jurisdiction of the English court but before that matter had been heard. The agreement allowed for no damages or costs but the Ds undertook to publish an article the truth of which C warranted; not to repeat the offending allegations; not to publish in any jurisdiction, any articles or statements which refer to C or his immediate family, expressly defined as his mother, father, brother or children but subject to certain exceptions as to reports of court proceedings or parliamentary inquiries.
C contended that the Ds breached the third clause by publishing 2 articles where C was not named but where he contended he would have been understood to be referred to. He issued an application seeking to convert the contractual undertakings into an injunction and for an inquiry as to damages.
On 5 December 2014, Sir David Eady, sitting as a High Court Judge, refused C’s application to lift the stay in the proceedings imposed by the Tomlin Order; he refused C’s application for an injunction to enforce clause 3.2 of the settlement agreement; and he also refused to make an order for an inquiry as to damages occasioned to the appellant by the breach of the terms of the settlement agreement. C appealed with the permission of Christopher Clarke LJ.
On the appeal, the Ds did not seek to support the reasoning of the Judge below but contended that the court should uphold the judge’s decision, because the terms of the relevant clause were too wide (rather than too vague); and having regard to section 12 of the Human Rights Act 1998 and the importance of freedom of expression, it would be disproportionate and/or contrary to public policy to grant C the relief that he sought.
Whether the relevant clause of the settlement agreement was too wide and whether it would be disproportionate and/or contrary to public policy to grant C the relief he seeks.
allowing the appeal, imposing an injunction and remitting the matter for an inquiry as to damages,
To impose an injunction would interfere with the Ds rights under article 10 of the Convention. Therefore, s12 of the Human Rights Act 1998 was engaged. The right to freedom of expression under article 10 was not absolute and could be restricted where to do so was necessary and proportionate and achieved a legitimate aim.
In this case, the parties decided, with the benefit of expert legal advice on each side, to enter into a contract that compromised their legal proceedings. They chose to do this, using the settlement mechanism of a Tomlin Order, and thus converted their putative rights and/or liabilities in the litigation into a contract. The clause, whilst very broad, had a legitimate aim, to protect C’s rights, and was clear. The Ds should be held to the contract they had freely entered into.
This long-awaited judgment, coming eight months after the hearing and over 2 and a half years after the first instance decision, is unequivocal that if parties enter freely into settlement agreements then they should be held to them and to require them to do so is a legitimate restriction of their freedom of expression.
The possible benefit of the decision for claimants and danger for defendants is that the judgment has endorsed what might become a weapon of choice for wealthy claimants. If claimants can demand from media defendants that, in order to settle litigation, a clause of this width is required and can point to this decision to show that such a clause is lawful, then many rich claimants may demand silence, perhaps over damages and costs.
Mischcon de Reya for C; Howard Kennedy for D
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.