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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Loutchansky v Times Newspapers Ltd. & Ors  EWHC 2726 (QB) (12 December 2002)
Cite as:  EWHC 2726 (QB)
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QUEEN'S BENCH DIVISION
Strand, London WC2A 2LL
B e f o r e :
|Dr Grigori LOUTCHANSKY|
|- and -||Claimant|
|(1) TIMES NEWSPAPERS Ltd|
|(2) Peter STOTHARD|
|(3) David LISTER|
|(4) James BONE||Defendants|
(instructed by Olswang, Solicitors) for the claimant
Mr Richard PARKES
(instructed by Reynolds Porter Chamberlain) for the defendants
Hearing dates: 15, 26 November 2002
Crown Copyright ©
Mr Justice Gray:
The legal principles relating to applications for permission to amend made before judgment
"(a) While it is no doubt desirable in general that litigants should be permitted to take any reasonably arguable point, it should by no means be assumed that the court will accede to an application merely because the other party can, in financial terms, be compensated in costs; (b) as with any other application for leave to amend, consideration must be given to anxieties and the legitimate expectations of the other party, the efficient conduct of litigation, and the inconvenience caused to other litigants."
"When a defendant seeks to plead justification at a late stage, his conduct will be closely enquired into. The court will expect him to have shown due diligence in making his enquiries and investigations The court may well refuse his application if he has been guilty of delay or not made proper enquiries earlier."
"The plaintiff brings this action to vindicate his reputation, no doubt hoping that a jury will accept that he has been seriously libelled and award him damages appropriately. There must, I think, be a serious question as to how valuable a vindication is if it is one against a defendant who is not able to advance the defence he would wish."
Sir Thomas also pointed out that a successful claimant in a libel action ordinarily obtains injunctive relief with a consequent restriction on the freedom of publication of the defendants, which may be undesirable where a defendant has not had the opportunity to make good whatever defence he has. I recognise the importance of these considerations in the present case. But, as Sir Thomas Bingham MR went on to say in Basham, and as Eady J reiterated in Cook v News Group Newspapers  EWHC 1070 QB, the vindication point is not a trump card.
Post-judgment applications for permission to appeal
"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
"(4) .. .Because it is inherently contrary to the public interest and unfair on the other side that an unsuccessful party should be able to raise new points or call fresh evidence after a full and final judgment has been given against him, it would generally require an exceptional case before the court was prepared to accede to an application where the applicant could not satisfy the three requirements in Ladd v Marshall... (6) The court should be astute to discourage applications which involve parties seeking to put in late evidence, but cases where new evidence is found after judgment is given and before the order is drawn up will be comparatively rare."
The broad nature of the case sought to be advanced
"The [article] meant and was understood to mean
(a) that the claimant was the boss of a major Russian criminal organisation;
(b) that the claimant, through Nordex, the company he owned weapons;
(c) that the claimant, either personally or by means of companies owned or controlled by him, was involved in the criminal laundering of billions of dollars from Russia; alternatively, by his conduct, the claimant had given reasonable cause to suspect him or the companies he owned or controlled of involvement in the criminal laundering of billions of dollars from Russia."
"that the claimant, through companies which he owned and/or controlled, has been involved in the criminal laundering of large sums of money; alternatively that, by his conduct as owner and/or controller of such companies he has given reasonable cause to suspect him or those companies of involvement in the criminal laundering of large sums of money".
The prejudice to the claimant if the amendment is allowed
The merits of the proposed plea of justification according to the defendants
The application of the Ladd v Marshall criteria to the proposed plea of justification
"The basis of the assessments about the mafiosi character of the company, which are mentioned, cannot in any way be verified, since they are not founded on concrete circumstances, whilst the other elements mentioned are not specific indications by reason of their merely speculative character."
The defendants' alternative case: reasonable grounds for suspicion
i) the defendants must focus upon some conduct of the claimant that in itself gives rise to suspicion (the so-called "conduct rule");
ii) it is not permitted to rely upon hearsay; and
iii) the defendant cannot plead as supposed "grounds" matters post-dating publication.
i) of the hearsay rule, Brooke LJ in Chase said at paragraphs 41-42 that in Shah May LJ could not have had the provisions of the Civil Evidence Act 1995 in mind when he said that allegedly credible hearsay may not contribute to proof that there are reasonable grounds for suspicion. Brooke LJ continued that, provided that the requirements and safeguards of the 1995 Act and CPR Part 33 are observed, a defendant may now in theory adduce hearsay evidence of whatever degree in an attempt to prove the particulars of justification.
ii) in relation to the conduct rule, Brooke LJ affirmed at paragraph 48 that in general the defence must focus on some conduct of the claimant giving rise to suspicion. However, he added the caveat that in some cases the defendant might rely on "strong circumstantial evidence implicating the claimant which might amount, objectively speaking, to the requisite grounds for reasonable suspicion" (see paragraph 51).
iii) the rule prohibiting reliance on matters which occurred after publication is unaffected by Chase. It appears to me to make good sense: why should a defendant who had reasonable grounds for suspicion at the time of publication be deprived of them by reason of subsequent events and conversely why should inadequate grounds be capable of being bolstered by events which occurred after publication?
Section 5 of the Defamation Act
Summary of conclusions
69. I have attempted at paragraphs 48 and 49 above to summarise the authorities which bear on the questions what must be established in order to establish reasonable grounds for suspicion and what evidence may be called by the defendant in support of his case that such grounds exist.
i) the conviction of Peter Berlin and Lucy Edwards in February 2000 and their admissions in the US criminal proceedings (see particulars at paragraphs 1 and 2);
ii) the statements made by Marissov to the French police in 2001 (paragraph 20);
iii) the transfers made to Alpha in October 1999 and in 2000 (paragraph 24);
iv) the Italian investigation into Prima in 2001 (paragraph 42);
v) the Alpha-Prima transfers in 2000 (paragraphs 53-55); and
vi) the telephone conversations alleged to have taken place in 2000 (paragraph 57).
I accept the contention of the claimant that the inability of the defendants to rely on these matters further undermines to a significant extent the defendants' case.