Full case report

Berezovsky v Russian State Television & Another

Reference [2008] EWHC 1918 (QB)
Court Queen's Bench Division

Judge Eady J

Date of Judgment 31 Jul 2008


Summary

Defamation – Libel – Foreign broadcaster – Jurisdiction – Fair trial – Defence not justiciable – Anonymity of sources – s.10 Contempt of Court Act 1981


Facts

The Defendant was the Russian State broadcaster. In April 2007, it broadcast a programme in which allegations were made against the Claimant by an anonymous source identified only as Pyotr in the programme. The programme was available to satellite viewers in the UK and the Claimant sued for libel on what he contended was a substantial publication in the jurisdiction. Permission to serve the Defendant out of the jurisdiction was given in July 2007 and the Claim Form was served on the Defendant in April 2008. The Defendant applied to the Court asking it to decline jurisdiction on the basis that Russian law prevented it from identifying Pyotr and it could not therefore have a fair trial of any of its defences.


Issue

(1) Whether the Defendant had demonstrated that Pyotr was under the protection of the Russian State in such a way that engaged the restrictions of Russian Law;

(2) Whether the Defendant had demonstrated that it would not be possible for it to receive a fair trial of its defences;

(3) Whether it would be right for the Court to decline to exercise jurisdiction over the Claimant’s claim


Held

Dismissing the Application:

(1) The Defendant had not satisfied the Court that Pyotr was under state protection. The evidence submitted by the Claimant suggested that this was unlikely; in particular Pyotr’s identity had been revealed in two Resolutions issued by the Russian State Prosecutor as recently as March and April 2008.

(2) The Defendant had refused to indicate clearly the defence(s) upon which it wished to rely. It was not possible to evaluate whether and to what extent the defence(s) would be affected by any inability to identify Pyotr. The Defendant could, for example, rely upon s.10 Contempt of Court Act 1981 not to identify the source if it relied on a Reynolds defence.

(3) In the circumstances, the Defendant had not convincingly established any basis on which the Court should decline to exercise jurisdiction over the claim.


Comment

The Judge accepted the Defendant’s description of the Application as “unusual”. In Prebble v Television New Zealand Ltd [1995] 1 AC 321, the Privy Council declined to stay proceedings on the grounds that the case could not be tried fairly because parliamentary privilege prevented investigation of part of the case. The Court accepted that there might be cases where the interests of justice required that a stay be granted, but that “a stay should only be granted in the most extreme circumstances. The effect of a stay is to deny justice to the plaintiff by preventing him from establishing his good name in the courts” (Lord Browne-Wilkinson).


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Instructing Solicitors

Carter-Ruck for the Claimant; Herbert Smith for the Defendant