Mionis v Democratic Press SA
Reference:  EWHC 4104 (QB)
Court: Queen's Bench Division
Judge: Sir David Eady
Date of judgment: 4 Dec 2014
Summary: Defamation - Libel - Foreign Parties - Settlement of Action by way of Tomlin Order - Whether contractual undertakings restricting freedom of expression had been breached - Whether contractual undertakings restricting freedom of expression should be coverted into an injunction - Whether an inquiry as to damages should be ordered - Applications for Derogations from Open Justice - Hearing in Private- Restrictions on Access to Papers
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Adam Speker KC (Defendant)
Instructing Solicitors: Mischon de Reya for the Claimant; RPC for the Defendants
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. He sought derogations from open justice.
1. Whether the hearing should take place in private and there be no reporting of the settlement agreement;
2. Whether confidentiality should attach to the documents lodged at court;
3. Whether the Ds had breached the clause referring to C and his family;
4. If so, whether the clause should be converted into an injunction;
5. If so, whether an inquiry as to damages should be ordered.
Dismissing all the applications:
(in an extempore judgment given at the hearing)
1 and 2. No derogations from open justice would be granted. Whilst the terms of the settlement were to be regarded as confidential they were subject to certain specified exemptions including the fact that disclosure was ‘necessary so as to implement and/or enforce any part of the settlement agreement.’
(in a reserved judgment handed down on 5 December 2014)
3. The words ‘refer to’ bear their every day meaning that an individual would be referred to if he was understood to be referred to. They embraced indirect as well as direct reference. For the purpose of the application, the court was prepared to proceed on the basis that even though C had not been named in the articles he had been understood to be referred to in two articles by some people albeit that was not the intention of the Ds.
4. C had recognised from the outset that the Ds were entitled and indeed had a duty to report on the Lagarde List. However, the clause could be breached without the Ds acting unlawfully for instance by publishing anything defamatory or private. This gave rise to a tension when it came to construing the scope of the restrictions sought to be imposed on their freedom of expression particularly when they were based in Greece and it led to the conclusion that the clause was too vague to be enforceable at all. There was a corresponding inhibition on granting an injunction which was too uncertain and could not be enforceable by process of contempt.
5. For the same reasons, it was inappropriate to order an inquiry as to damages in respect of alleged breaches of an unenforceable contractual term.
A very useful reminder of the need for clarity and proportionality when drafting contracts which restrict freedom of expression on matters recognised by all to be in the public interest. If contractual clauses are not clear then they will not be enforceable.