Full case report

Terluk v Berezovsky (No.2)

Reference [2011] EWCA Civ 1534
Court Court of Appeal

Judge Chancellor of the High Court, Laws LJ and Rafferty J

Date of Judgment 15 Dec 2011


Summary

Defamation -appeal- damages- meaning- liability for republication- privilege- justification – fresh evidence – jury trial


Facts

Berezovsky (C), the high profile Russian businessman, had brought a successful defamation action against the Russian state-owned RTR satellite channel, RTR Planeta (D1), and Mr Vladimir Terluk (D2), a Kazakhstan national, now resident in the UK.

The claim was made in respect of a Russian TV programme called Vesti Nedeli, broadcast on 1 April 2007, which could be viewed in the UK without subscription. The theme of the programme was the murder of the KGB officer Alexander Litvinenko, who died in London in November 2006 after ingesting a radioactive isotope.

C had sued in respect of words spoken by an unidentified man on the programme, referred to as ‘Pyotr’, who was interviewed by the RTR presenter, Mr Medvedev. The programme was the Russian equivalent of Newsnight.

The Judge, although refusing to find that the words complained of bore the meaning that C had been involved in Litvinenko’s death, did find that they were defamatory and meant that:

“the Claimant was a knowing party to a criminal conspiracy to avoid his extradition and obtain political asylum in Britain by procuring a false confession from the so-called Pyotr (first by offering him massive bribes and then, when he refused to comply, by drugging him) that there was an FSB plot to poison the Claimant and hence he would be in mortal danger if returned to Russia”

The Judge also found on the evidence that D2 was in fact ‘Pyotr’.

C was awarded damages of £150,000 against both Ds jointly.

RTR did not apper at the trial, and played no part in the appeal.

D2 appealed on 7 different Grounds.


Issue

The Grounds of appeal were as follows:

(A) Procedural issues- (1) Ought the trial to have been properly adjourned following the request from D2, and (2) were the circumstances in which the case came to be heard by a judge alone ‘improper’?

(B) Meaning- Were the words complained of capable of bearing a defamatory meaning?

(C) Justification defence- Had the Judge erred in determining what D2 had to satisfy in order to establish his justification defence?

(D) Privilege- Was the interview conducted by Mr Medvedev protected by absolute privilege on the ground that it was conducted as part of a criminal investigation/an equivalent process?

(E) Republication- Was D2 actually liable in law for the republication?

(F) Quantum of damages- Was the award of £150,000 too high?

(G) Fresh evidence- could D2 adduce fresh evidence before this Court, primarily in the form of WSs of Mr Andrei Lugovoy (wanted for Litvinenko’s murder in this country)?

Ground A had already effectively been dealt with by the CA previously, which had granted PTA in respect of the refusal to adjourn element, but later refused the actual appeal (Mummery and Sedley LJJ). PTA had been refused in respect of the decision to sit without a jury.

The remainder of the grounds were yet to be adjudicated on. PTA had been granted prior to the hearing in respect of Grounds E and F. The PTA application in respect of Ground G had been adjourned to this hearing, together with the oral renewal of Grounds B, C and D.


Held

Appeal dismissed in respect of the Grounds of appeal where PTA had been granted, and PTA was refused in respect of the remainder. Of the 6 Grounds which fell to be adjudicated at the hearing:

Ground B (Meaning)- PTA was refused- the Judge was ‘obviously’ correct in his conclusions on this point.

Ground C (Proof of justification)- PTA was refused- the Judge was wholly entitled to reject the justification defence on the merits [56].

Ground D (Privilege)- PTA was refused- the Ground was hopeless. There was no question of D2’s interview having been conducted by the Russian prosecutors; it was an interview by Mr Medvedev of RTR for the purpose of a TV broadcast [61].

Ground E (Republication)- Appeal dismissed- the inescapable conclusion based on the facts surrounding the interview was that D appreciated that the interview was going to be broadcast in the UK [26].

It was unnecessary for this Court to decide what the exact test for fixing liability for republication was (i.e. whether it was reasonable forseeability, or if it required a deliberate intention that the words be republished) because, on the facts, D was liable for republication whatever the test [28].

Ground F (Damages)- Appeal dismissed- there was no basis made out to justify an interference with the Judge’s award; whilst it was high it did not “substantially [exceed] the most that any jury could reasonably have thought appropriate” [71], and it therefore satisfied the dictum of Simon Brown LJ in Kiam v MGN [2002] EWCA Civ 43.

John v MGN Ltd [1997] QB 586 was not intended to prescribe a sharp or precise correlation with damages for personal injuries in defamation cases [69].

The Judge had provided sufficient reasoning to justify the damages award he made; he clearly took account of “the libel’s inherent gravity, its having gone uncorrected for about three years, the attempt to show that it was true, the distress occasioned, and the need for vindication” [70].

Ground G (Fresh Evidence)- the power to adduce fresh evidence was governed by CPR 52.11(2)(b), coupled with the duty to exercise it in accordance with the overriding objective [32].

The CA held that Mr Lugovoy’s account of events was extremely suspect [45], and was not sensibly capable of belief [53]. On that basis the third Ladd v Marshall criterion was not met. Neither the interests of justice nor the overriding objective required that that evidence be admitted (in fact quite the contrary).

The CA stated that if Mr Lugovoy’s account of events were genuine the Russian prosecutors who assisted D2 to present his case before the Judge would have been armed with it before trial, and would have thrust it upon the Judge, given their substantial and direct involvement with the proceedings [44].


Comment

The case highlights two important points:

(1) There is a lack of clarity in the law with respect to the test for fixing liability for republication, which the CA has explicitly recognised here. It is unfortunate that the issue did not fall to be decided on the facts of this case, as some certainty in this area is much needed.

(2) Secondly, the CA has, once again, confirmed its reluctance to interfere with a trial judge’s damages award, even where it is a relatively large one. The Court interestingly was content to apply the test as set out in Kiam to determine whether an award should be interfered with (i.e. only where it is one that no reasonable jury could have made), even though, in this case, the award was judge-made.


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Instructing Solicitors

McGrigors for the Appellant; Carter Ruck for the Respondent