Berezovsky v Russian State Television & Another (No 2)

Reference: [2010] EWHC 476 (QB)

Court: Queen's Bench Division

Judge: Eady J

Date of judgment: 10 Mar 2010

Summary: Defamation - Libel – Liability for publication – Justification – Damages – Joint tortfeasors

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Appearances: Desmond Browne QC - Leading Counsel (Claimant) 

Instructing Solicitors: Carter-Ruck for the Claimant; Second Defendant in person. The First Defendant did not appear and was not represented.

Facts

The claimant (B) claimed damages for defamation against the defendants (R and T) following the broadcast by R of a television programme which, B alleged, featured an interview with T and which suggested that B had been a party to the murder of the former Russian security agent, Alexander Litvinenko (L).

B was a Russian businessman and politician who had become an outspoken critic of the Russian president, Vladimir Putin. He had been granted asylum in the United Kingdom and was a close friend of L. R was a state-owned Russian television company which made programmes for broadcast both inside and outside Russia. The programme sued on had suggested that L had been murdered by B because he had been a witness to a conspiracy designed to enable B to obtain political asylum in the UK. It featured an interview with “Pyotr” whose identity was protected. He claimed that he had been pressured and then drugged to confess, falsely, that he had been instructed by the Russian security services to assassinate B. B claimed that “Pyotr” was, in fact, T. The natural and ordinary meanings pleaded by T were that (i) he was a knowing party to a criminal conspiracy to avoid his extradition and to obtain political asylum in the UK by procuring a false confession from P that there was a plot by the Russian security services to poison him, and that he would be in mortal danger if returned to Russia; (ii) he had either been a party to the murder of L because L had been a witness to the conspiracy, or he had given strong cause to suspect that he had been involved; (iii) he had been a party to threats that had made P fear for his life.

T advanced a plea of justification to limited meanings but denied that he was Pyotr.

R did not participate in the trial, judgment having previously entered against it on liability in default of defence and then being made the subject of a debarring order from participating in the trial.

Issue

(1) Whether T was the person interviewed on the programme given the name “Pyotr”;

(2) Whether thethe programme conveyed the pleaded meanings;

(3) Whether T was responsible for the publication of any meaning defamatory of B;

(4) Whether T had established any justification defence; and

(5) If T was responsible for the publication of any meaning defamatory of B and had no defence, the appropriate sum in damages.

Held

Giving judgment for B:

(1) Pyotr was T.

(2) The programme as a whole bore the meanings complained of by B.

(3) T was liable for any defamatory allegations made by him in the course of his interview. Depending on his further involvement in the programme, T might also be liable for the overall message conveyed in the programme as a whole. While the contents of his interview were relied on by the programme makers to support the central proposition that B was behind L’s murder, he did not actually say that on the programme. T’s interview was limited to his claiming that B had, through others, bribed him and then drugged him to provide a false story about an assassination plot. He could therefore be fixed with responsibility for only the first of the defamatory meanings pleaded.

(4) The issue for him was, therefore, whether he could prove on the balance of probabilities that B had attempted to coerce or bribe him into making a false statement to assist in his asylum claim. He could not. The evidence led to the conclusion that his claim of an attempt by B to obtain bogus evidence for his asylum claim was false. There was no evidence that B had any part in L’s murder, and nor was there any basis for reasonable grounds to suspect him of it.

(5) The appropriate award of damages was £150,000. Quantification was difficult given that R and T were joint tortfeasors who bore differing levels of responsibility. T was responsible only for what he actually said on the programme, and he had neither said that B posed a continuing danger to him nor had accused him of involvement in L’s murder. While there was no truth in any of the allegations, T was not responsible for publishing them. Compensation would therefore only be awarded in respect of the first of the meanings. Had compensation been awarded for the equally unfounded allegation that B was responsible for L’s death, the figure would have been higher.

Comment

The decision is largely concerned with an adjudication on the various factual disputes, however the Judge’s decision [174]-[175] applying the principle of the “lowest common denominator” when assessing the culpability of joint-tortfeasors and the damages to be awarded to a Claimant is interesting, given the law in this area is not clear.