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||Neutral Citation Number:  EWHC 56 (QB)
||Case No: TLJ/16/0522
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MRS JUSTICE NICOLA DAVIES DBE
|| ISSAM SALAH HOURANI
||- and -
||(1) ALISTAIR THOMSON
(2) BRYAN MCCARTHY
(3) ALLISON BLAIR
(4) PSYBERSOLUTIONS LLC
(5) JOHN MICHAEL WALLER
Heather Rogers QC and Jonathan Price (instructed by Payne Hicks Beach) for the Claimant
Anthony Hudson QC and Ben Silverstone (instructed by Mishcon de Reya) for the Defendants
Hearing dates: 12-13 January 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Mrs Justice Nicola Davies:
- The claimant claims damages and injunctive relief for libel against the first, second, third and fourth defendants and for harassment against all defendants. On 19 June 2014 a demonstration took place outside the claimant's then London home (the "June Event"). The protesters, who were not genuine protesters, were paid to attend and instructed as to what to do and say. They held placards/banners provided to them, amongst which were one or more photographs of the claimant with the caption "Murderer". Some footage and reports of the June Event were published on various websites and social media sites that were established on or about this time (the "online publications"). The statements published at the June Event and in the online publications which are complained of are set out in the Amended Particulars of Claim. The pleaded defamatory meanings alleged by the claimant being that the claimant was guilty of or complicit in the murder of Anastasiya Novikova in June 2004 and other grave crimes against her. On 16 November 2014 another similar event was staged in Hyde Park (the "November Event") resulting in the publication of further and similar statements in the online publications.
- The claimant alleges that the events and the online publications were defamatory of him and constituted and/or were part of a campaign amounting to harassment for which the defendants are responsible. The first and second defendants admit to having been involved in organising the June Event, the second defendant admits to having been involved in organising the November Event. The third and fourth defendants deny any involvement in the Events. The fifth defendant admits to having organised the June and November Events. The first to fourth defendants deny any responsibility for the online publications. The fifth defendant admits responsibility for all but one of the online publications (RakhatAliyev.com). In their defences, in respect of the allegation of libel, the first to fourth defendants put the claimant to proof of publication within the jurisdiction and to proof of serious harm. The defendants do not admit the defamatory meanings pleaded. The first and second defendants advance a defence pursuant to section 4 of the Defamation Act 2013 (publication on matters of public interest) to some but not all of the publications. As to the allegations of harassment pursuant to section 1 of the Protection from Harassment Act 1997 ("the 1997 Act") the defendants deny a course of conduct, that they knew or ought to have known that their conduct amounted to harassment, that the conduct complained of was targeted at the claimant, that the conduct was likely or intended to cause alarm and/or distress to the claimant, that the conduct was oppressive or unacceptable. The defendants assert that their pursuit of the course of conduct was reasonable and/or was for the purpose of preventing or detecting crime.
- The history of these proceedings is protracted. In December 2014 a Claim Form was issued against Persons Unknown. Following an Order by Dingemans J the first to fourth defendants were identified. In April 2015 the claimant served a Claim Form and Particulars of Claim upon those defendants. By 31 March 2016 the involvement of the fifth defendant was known and a letter was sent to him by the claimant's solicitors. On 9 June 2016 Amended Particulars of Claim adding the fifth defendant were served in draft. On 23 June 2016 consent was given by the solicitors acting on behalf of all defendants to the addition of the fifth defendant and a timetable proposed for the filing and service of an Amended Defence. On 11 August 2016 Amended Particulars of Claim were served adding the fifth defendant. The agreed timetable set out in a consent order provided for the Amended Defence to be served by 29 July 2016. A delay occurred, for which the defendants are responsible, the Amended Defence was not served until 23 September 2016. On 10 November 2016 the Re-Amended Defence was served. On 24 November 2016 an Amended Reply was served. On 2 November 2016 the claimant issued an application for specific disclosure. Following late and without notice disclosure of redacted documents by the fifth defendant on 1 December 2016, the claimant on 12 December 2016 issued an application seeking the following relief:
i) The fifth defendant shall by 4pm on [blank] provide to the claimant by way of inspection copies of the following documents:
a) The documents disclosed by the fifth defendant in "List A" attached to his Supplemental Disclosure Statement dated 9 December 2016 … in their original unredacted form; and
b) Where any such document was in electronic format, the fifth defendant shall produce a copy of that document in its original native electronic format and with all metadata preserved.
ii) The defendant shall by 4pm on [blank] provide the further information as requested by the claimant in the Request dated 24 November 2016.
The information contained in the Request is the naming of the fifth defendant's client in respect of his participation in the campaign. Other requests for information are made but the disclosure of the identity of the fifth defendant's client is the primary request and is the issue for determination in the application now before the Court.
- It is undisputed that the campaign has been paid for by an unidentified client with considerable resources to fund it. It is the claimant's belief that the campaign for which the defendants, in particular the fifth defendant, are responsible is part of a campaign launched against the claimant and his family by or through the Government of Kazakhstan. The claimant attributes the commencement and pursuit of that campaign to a political falling out in 2007 between the claimant's brother-in-law, the late Rakhat Aliyev, and President Nazarbayev of Kazakhstan. Mr Aliyev had opposed the President politically, in particular, over his becoming President for life.
- The fifth defendant is a citizen of the United States and lives in Washington DC. He describes himself as a scholar-practitioner specialising in strategic communication and unconventional conflict. He is the Managing Director of a consultancy firm called Oceanic Advisers. He states that he specialises in high-impact, low-cost solutions to business, security, military and intelligence organisations, adopting innovative methods in the use of information, persuasion and psychological strategy as instruments of national security, military and trade policy. He has a background both in business and academia.
- In a 99-page witness statement dated 8 December 2016 the fifth defendant states that in January 2014 he was asked by "the client" to work on an online campaign, the primary focus of which was stated to be Rakhat Aliyev. He was told by the client that the purpose of the campaign was to apply pressure on Mr Aliyev to surrender to the authorities for a range of crimes but specifically: (a) the murder of two executives of a Kazakhstan bank; and (b) various economic crimes against the state of Kazakhstan. He was told that the campaign should be conducted online through a variety of websites and social media platforms, combined with protests and other forms of street theatre to draw attention to Mr Aliyev and his crimes, and to draw attention to his inner circle of associates who facilitated the criminal activity. The client wanted the fifth defendant to design the campaign, run it as an ostensibly independent effort by setting up and operating websites and social media networks, organising protests and street theatre for the purposes of online distribution and operating the overall campaign on a day-to-day basis while keeping the client anonymous. In the course of his instructions the fifth defendant reviewed a large number of documents, the "vast majority" of which were provided to him by the client. Initially he was shown copies but by May 2014 as planning of the project moved forward the client provided the fifth defendant with hard or electronic copies which he was able to keep. Documents were either primary sourced documents or compilations or analyses which the fifth defendant attempted to verify through his own independent sources. The fifth defendant states that he carefully reviewed the documents in order to satisfy himself of the veracity of the allegations made against the claimant and to ensure that any campaign was undertaken with full knowledge of the facts and matters being referred to. The vast majority of the material was reviewed and considered by the fifth defendant prior to and during the formation of the campaign and before the June Event.
- Having reviewed the documents provided to him the fifth defendant concluded that the campaign should be limited to the death of Ms Novikova in Beirut on 19 June 2004 because:
"There was so much viable, credible information about it, and because her imprisonment and abuse in the Claimant's presence, and her violent death on the Claimant's property, directly linked the Claimant to the crimes. My conclusions were reached after a considered analysis of a large number of documents from a variety of sources beyond those provided by the Client, all of which must be considered together."
- In his written statement the fifth defendant refers to the key documents which he considered and the relevant points contained therein. The documents provided by the client include the report of the Beirut Police dated 19 June 2004 into the death of Ms Novikova, the post mortem report, a request from Interpol dated 26 May 2007 seeking information about the claimant, the Beirut Police Investigation report in response sealed on 27 August 2007, two witness statements taken in 2009 by a Senior Investigator of the Department of Internal Affairs in Kazakhstan relating to the treatment and death of Ms Novikova. At paragraphs 143 and 144 of his statement the fifth defendant sets out his conclusions:
"143. Having reviewed and considered all of the documents very carefully, the key conclusions I drew were that:
a. Ms Novikova was Aliyev's mistress;
b. Aliyev was the father of Ms Novikova's daughter;
c. Aliyev insisted on and arranged Ms Novikova's marriage to Esten;
d. Aliyev arranged Ms Novikova's move to Beirut and that he did so, in all likelihood, to keep her out of the way because she had given birth to Aliyev's child;
e. Aliyev arranged for Ms Novikova and Esten to stay in the apartment of his brother in law, friend and close business associate, the Claimant;
f. Ms Novikova was held captive, tortured, raped and sexually assaulted and drugged in the Apartment;
g. The Claimant was aware of the crimes being committed against Ms Novikova;
h. The Claimant facilitated the crimes;
i. On the instructions of Aliyev, Ms Novikova had either (a) been murdered in the Apartment and then thrown off the balcony, (b) thrown off the balcony; or (c) caused such psychological and physical damage during her period of imprisonment that she had either committed suicide or had fallen to her death while trying to escape from the Apartment;
j. Aliyev was responsible for Ms Novikova's death and the Claimant was an accomplice to Ms Novikova's death and/or would have been responsible for her murder under the US felony murder rule;
k. After the death, the Claimant was present at the police station for the questioning of Esten, and acted as Esten's interpreter for the official police record;
l. Neither Esten, as Ms Novikova's husband, nor the Claimant, as owner of the property where Ms Novikova died, wanted a police investigation into the death;
m. After the death, the Beirut police failed to undertake a proper investigation after pressure was exerted on them by the Claimant and/or Aliyev;
n. Inappropriate steps were taken to remove Ms Novikova's body from Lebanon unusually quickly, at the instigation of Aliyev and the body was then deliberately buried in a secret grave in Kazakhstan;
o. Ms Novikova's family, including her parents, were never told of her death;
p. The Lebanese authorities failed to act appropriately when attempts were made to re-open the investigation in 2007;
q. The matter was considered serious enough for proceedings to be commenced in Lebanon by Ms Novikova's parents and the Republic of Kazakhstan where the Claimant (and others) stood accused of the murder;
r. Aliyev was a criminal who was involved in other murders and crimes such that he was perfectly capable of committing this crime;
s. The Claimant and Aliyev were extremely close; and
t. The Claimant had very close business links with Aliyev which involved serious criminal activity (including money laundering, tax evasion and extortion) involving hundreds of millions of US dollars.
144. From my review and analysis of documents and various searches I had undertaken, and given the conclusions I had reached, I took the view that the campaign should centre on the death of Ms Novikova and the need to bring the perpetrators to justice. It was clear to me that Ms Novikova had been murdered and that Aliyev and the Claimant were involved. Apart from the moral perspective and my genuine belief that the perpetrators should be brought to justice, I also believed that, from a practical standpoint, the public was less likely to be interested in economic crimes or even the murders of two rich bankers, and were more likely to be concerned about the unsolved murder of a young, helpless single mother."
- The claimant in his Amended Reply and witness statement denies that he committed or was party to the commission of any crime against Ms Novikova. He denies that he sought to or did impede or influence the investigation by the relevant authorities in Lebanon. He has sought to assist any investigation. He has cooperated with the Court in Lebanon, this included giving evidence in 2015. The Court concluded that there was no suspicion of any criminal act in respect of Ms Novikova's death, there was no basis for any charge against the claimant. The allegation that the claimant is a murderer is said to be false and without foundation.
- The allegations relating to Ms Novikova's death are set out in paragraphs 8 to 113 of the Re-Amended Defence dated 9 November 2016. In essence they are that Ms Novikova began a relationship with Rakhat Aliyev, she had a child by him in 2003 which was an embarrassment to Mr Aliyev. Mr Aliyev was married to the sister of the claimant. The claimant and/or his family owned or had an interest in an apartment in Beirut. It is alleged that the claimant offered Mr Aliyev the use of this apartment and Mr Aliyev paid for Ms Novikova to move to Beirut in 2003, at some point she lived in the claimant's apartment.
- It is alleged that in January 2004 Mr Aliyev gave instructions for the torture of Ms Novikova, the claimant took Ms Novikova to the apartment, left her there where she was tortured. The claimant returned, bringing with him a woman who took Ms Novikova's daughter away, the claimant again returned to bring food. By June 2004 Ms Novikova was still in the apartment but rarely seen. On 19 June her husband, who it is alleged was in contact with the claimant, left the apartment. Later that day that Ms Novikova's dead body was found impaled on steel reinforcement rods protruding from a concrete wall below the balcony of the claimant's apartment. Investigations were carried out by the authorities in Lebanon. No criminal proceedings were instituted. A post-mortem concluded that it was most likely that Ms Novikova had committed suicide. It is alleged that the body of Ms Novikova was swiftly transported to Kazakhstan. Her family were unaware of her death and her place of burial. In May 2005 Ms Novikova's husband died in a car accident in Vienna in unknown circumstances.
- In May 2007 the Kazakhstan authorities issued an arrest warrant for Mr Aliyev for running an organised crime network. In early 2008 Mr Aliyev was sentenced in absentia to 40 years in prison by the authorities in Kazakhstan for various crimes including kidnap, document forgery, seizure of power through violence, formulation and heading of an organised criminal group, the illegal acquisition and disclosure of state secrets, embezzlement of property, the illegal trafficking of arms, ammunition and explosives and other matters. In February 2015 Mr Aliyev died in prison in Vienna whilst awaiting trial for murder in respect of two Kazakh bankers.
- The fifth defendant alleges that the online publications, the Events and stickers which were placed in and around London were part of a legitimate campaign to publicise and draw attention to the mysterious and tragic circumstances in which Ms Novikova died and the culpability of Mr Aliyev and the claimant for her death. In organising the Events the fifth defendant, in communication with the other defendants, used the pseudonym Melissa Van Buren.
- It is clear from the witness statement of the fifth defendant that he and the client worked closely upon the campaign. Each element of the campaign was the result of extensive "brainstorming" with the client. The client listened to the fifth defendant's ideas and agreed to many of them. The fifth defendant was clear that he would not do or enable anything unlawful or untruthful to be done. The client was said to be "flexible about the specific nature of any campaign" and sought the advice of the fifth defendant as to how he would design and carry out such a project. It was a "collaborative approach", "the client and I met frequently and brainstormed about ideas". The fifth defendant insisted on a truth-based campaign. The fifth defendant designed and ran the social media campaign, organised the Events and the posting of stickers. As to the client, the fifth defendant stated:
"I felt comfortable with the legitimacy of the Client's operation. I did a standard reference check among people I know by asking associates who knew or had worked with the Client, including former US intelligence officers, the way one would do a basic check to determine if there was cause to dig more deeply for derogatory information. I did not hire them to investigate. I reached a 'nihil obstat', meaning that I had found nothing of concern."
- The fifth defendant states that at no time did the client instruct him to do anything which he did not agree with, having verified the facts from his own review and analysis. At no time did the client instruct or pressure him to lie or distort. The Justice for Novikova campaign was agreed in principle by early May 2014 and following formal agreement on 23 May 2014 with the client the purchase of campaign names and domain names was undertaken by the fifth defendant. In April 2014 the client agreed a budget for the year in the sum of $496,000. In May 2014 the fifth defendant agreed with the client that he would be paid a monthly retainer for six months of $20,000 which began retroactively in April 2014. His company received a total of $317,800 for the campaign, he was paid approximately $200,000 for his professional services.
- In his witness statement the fifth defendant states that the Justice for Novikova campaign was reasonable, it being reasonable to call for justice when an innocent person is kidnapped, tortured, abused, raped and murdered. He states it is reasonable to draw international attention to such a murder when the alleged culprits are international figures. It is reasonable for private citizens to shine the light on organised criminal enterprises when those criminals and their accomplices remain at large. All his motivations were reasonable as were his methods. He was reasonable in his use of carefully documented facts from primary sources and from multiple verifiable sources. He was reasonable to challenge his client when he thought that certain of the client's desires for the campaign fell short of those standards. He was reasonable to take every possible precaution to protect the confidentiality of his client and those working with him on the campaign so that they would not be subjected to malicious and crippling legal retaliation and possible physical harm.
- Only the fifth defendant is aware of the identity of the client. No other defendant has been given this information, accordingly this application is directed at him.
The Claimant's Application
- The claimant makes this application pursuant to CPR 18.1. There is only one issue: should the identity of the client be ordered by this Court? The redactions in the statements disclosed by the fifth defendant have been done for the purpose of protecting the identity of the client. The identification of those responsible for the campaign, in particular those who initiated and financed it, are said to be crucial if the claimant is to be able to ensure that the campaign and its effects, which have been devastating, are to cease. The claimant relies upon the assertion in paragraph 116 of the Re-Amended Defence where it states that:
"The Online Publications, the Events and the Stickers were part of a legitimate campaign to publicise and draw attention to the mysterious and tragic circumstances in which Anastasiya Novikova died, and the culpability of Rakhat Aliyev and the Claimant for her death."
Questions posed by the claimant include: "How can the Court assess the legitimacy of a campaign unless it knows who is involved? … Who is behind the campaign, providing the money and instructions such as to legitimise the same?"
- In order to establish his cause of action in libel against the first to fourth defendants the claimant has to show that defamatory words were published in relation to him within the jurisdiction. Publication is "defamatory" if it caused or is likely to cause "serious harm" to the claimant's reputation: section 1 Defamation Act 2013. Although not admitted there appears to be little dispute that the online publications were published within the jurisdiction and given the nature of the allegation made against the claimant the "serious harm" threshold would not appear to be difficult to surmount. The first and second defendants raise an alternative and substantive defence, namely that some of the publications were protected by the defence provided by section 4 of the Defamation Act 2013, namely to "report on matter of public interest". In order to establish that defence the defendants would have to show that the publication was on a matter of public interest and that they "reasonably believed" that publication of the words complained of was "in the public interest". It is the claimant's case that this defence does not begin to get off the ground.
- At paragraph 12 of the Amended Particulars of Claim it is alleged that:
"The conduct of the Campaign through arranging, directing, authoring, funding and otherwise organising of the Campaign, amounts to a course of conduct … for which the defendants singularly and/or jointly are responsible."
This course of conduct is alleged to amount to harassment contrary to section 1(1) of the 1997 Act.
- Section 1 of the Protection from Harassment Act 1997 provides as follows:
"1. Prohibition of harassment.
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(1A) A person must not pursue a course of conduct —
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do.
(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable"
- The defendants deny individually and/or jointly pursing a course of conduct. In the alternative, if the same is found, it is contended that the pursuit of that course of conduct was for the purpose of preventing or detecting crime and/or was in the particular circumstances reasonable. As to the provision of section 1(2) of the 1997 Act namely that the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think that the course of conduct amounted to harassment of the other that is said by the claimant to be a question which requires knowledge of the person for whom the fifth defendant is acting. Such information is critical and is "really needed" in order for the Court to assess the reasonableness of the fifth defendant's conduct in the particular circumstances. The identity of the client is crucial to understanding the question which has to be answered as to whether or not the fifth defendant knew what he was doing was harassment.
- The defence which is of particular relevance to this application is that contained in section 1(3)(c) namely: "that in the particular circumstances the pursuit of the course of conduct was reasonable." It is the claimant's case that the Court could not carry out any proper assessment of the reasonableness of the conduct without having information about those who set up and paid for the campaign, which includes the identity of the fifth defendant's client. It is submitted that it is wrong to look at the issue of what the fifth defendant knew and thus how he acted if the identity of the person who was providing a substantial amount of information, with whom the fifth defendant was in direct communication and from whom he accepted instructions, is left out of account.
- In response to the defendant's allegation of delay the claimant strongly refutes the same. Ms Rogers QC took the Court through the detail of copious correspondence between the parties relevant to the issue of delay, some of which is referred to later in this judgment.
The Defendants' Case
- The trial is listed for 30 January 2017, the claimant's application was issued two days prior to the original Pre-Trial Review on 15 December 2016. The hearing was adjourned to the present dates by reason of the late application. The claimant's application is said to be too late, it is a cynical tactical move to delay and derail the trial in an effort to avoid the Court determining the important issues raised by the defendants in their defence of the claim. It is said to be consistent with the unrelentingly aggressive manner in which the claimant has waged this litigation and has sought to use his wealth and power in order to intimidate the defendants and suppress the exercise by them of their right to freedom of expression on matters of profound public interest and importance. The claimant has known for some time that the fifth defendant was paid by a client in relation to the campaign and that the fifth defendant was unwilling to identify that client in order to protect his sources of information. On 21 March 2016 the claimant's solicitors sent a letter to the fifth defendant written pursuant to the Pre-Action Protocol for defamation proceedings. It set out the detail of the history of the litigation, the claim against the four defendants and the alleged involvement of the fifth defendant. It identified websites, the orchestration of the campaign, which included the Events by the fifth defendant. Disclosure was sought including the identification of the individual using the pseudonym Melissa Van Buren as well as:
"…correspondence with the entities or individual(s) who have retained your services for the purposes of the campaign against our client …. In addition to these documents you are required also to provide the names, addresses, email addresses and telephone numbers of every person, company or trading entity you corresponded with or who otherwise participated with you in the campaign, including for the avoidance of doubt the identity of the individual(s) or entities who retained your services, as well as the lawyer(s) acting on their behalf."
Specifically it required a full and accurate account and explanation of the fifth defendant's role in the events and online publications including but not limited to "the circumstances in which you were retained for the purposes of the management of a campaign concerning our client (including the terms of the engagement and fee involved) … and an account of subsequent discussions with those instructing you and any other third party concerning any further or future planned activities."
- Following the joining of the fifth defendant as a party the claimant's solicitors, in correspondence from September 2016, continued to seek the identity of the fifth defendant's clients. By their letter dated 15 November 2016 the defendants' solicitors made clear that the fifth defendant was not prepared to identify the client for reasons which included his entitlement to protect his sources of information pursuant to section 10 of the Contempt of Court Act 1981. It was open to the claimant at an earlier stage to seek an order for the disclosure of the identity of the client pursuant to the jurisdiction established by the decision of Norwich Pharmacal Co. v Customs & Excise Commissioners  AC 133.
- The fifth defendant takes the preliminary point that the issues before the Court will involve consideration of whether this was a legitimate campaign, whether the fifth defendant was acting as a journalist, was it reasonable and in the public interest for the fifth defendant to pursue this course of conduct, was the same pursued for the purpose of preventing or detecting crime, was the conduct in the particular circumstances reasonable? Such questions will involve significant factual disputes between the parties which can only be resolved having heard oral evidence at trial. It would be wrong for this Court, on this application, to try and determine such issues.
- The identity of the fifth defendant's client is not relevant to an issue in the proceedings. It is not necessary for the claimant to know the identity of the client for the purpose of the trial. Before the Court is a clear and detailed statement from the fifth defendant which identifies the relevant documents upon which he can be cross-examined, the conclusions he reached and the basis upon which he made them. There is ample material before the Court to allow it to determine the issues relied upon in the pleadings. If it was relevant the information should have been sought earlier.
- The identification of the fifth defendant's client is not necessary for the purpose of the trial. No order for the identification of the fifth defendant's client is sought in the relief contained in the Re-Amended Particulars of Claim. The claim against the fifth defendant is one of harassment. All the claimant has to prove on the part of the fifth defendant is a course of conduct which does not require the identification of his client. Much of what the fifth defendant did is undisputed. As to the distress caused to the claimant that is a matter upon which he will give evidence. The identification of the fifth defendant's client is not relevant to any of the defences on which he relies, in particular it is not relevant to the issue of whether the actions of the fifth defendant were reasonable. The fifth defendant places no reliance on the fact that he had a client. He accepts the client provided him with information but contends that he was questioning that information and only relied upon evidence that he believed to be truth-based. The focus of the trial would be on the material on which the fifth defendant relied which represented the basis of his conclusions. The first time the request was raised in pleadings was in November as part of the Request for Further Information. It was always open to the claimant to seek this information, it is telling that they did not do so and underlines the point that the information now sought is not necessary for the determination of the issues before the Court. If it was necessary it was an application that could have been made many months ago.
- The fifth defendant's client is a source whose identity is entitled to protection pursuant to section 10 of the Contempt of Court Act 1981 ("the 1981 Act") and Article 10 ECHR. The effect of the claimant's application, if granted, would be to override this entitlement.
- Contempt of Court Act 1981:
"10. Sources of information.
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."
- Human Rights Act 1998:
"Article 10: Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Section 10 of the Contempt of Court Act 1981
- The fifth defendant submits that section 10 is engaged. The fifth defendant is a person responsible for a publication, the information is contained in the publication, the fifth defendant has a source for that information, the claimant applies for disclosure of that source which the fifth defendant refuses to identify. For the purpose of section 10 it is irrelevant whether or not the fifth defendant is a journalist. The test for disclosure pursuant to section 10 is whether disclosure is necessary in the interests of justice.
- Section 10 confers a right not to disclose information which may identify or lead to the identification of a source. This right may be overridden where it is established to the satisfaction of the Court that disclosure is necessary in the interests of justice. In In re an Inquiry Under the Companies Securities (Insider Dealing) Act 1985  AC 660,  per Lord Griffiths, "necessary" was defined as meaning "somewhere between 'indispensible' on the one hand and 'useful' or 'expedient' on the other, the 'nearest paraphrase' being 'really needed'."
- In John v Express Newspapers  EWCA Civ 135 at  Lord Woolf stated in respect of the approach to be adopted pursuant to section 10 that:
"Before the courts require journalists to break what a journalist regards as a most important professional obligation to protect a source, the minimum requirement is that other avenues should be explored. It cannot be assumed that it will not be possible either to find the culprit or, at least, to narrow down the number of persons who could have been responsible."
Article 10 ECHR
- The importance of the right conferred by Article 10(1) was stated in Jersild v Denmark (1994) 19 EHRR 1 at :
"…The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance... Whilst the press must not overstep the bounds set, inter alia, in the interest of 'the protection of the reputation or rights of others,' it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'…"
At the core of the right to freedom of expression is the protection of sources. In Goodwin v UK (1996) 22 EHRR 123 it was stated at :
"…Protection of journalistic sources is one of the basic conditions for press freedom… Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest…"
"…it will not be sufficient, per se, for a party seeking disclosure of a source to show merely that he or she will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he or she bases his or her claim in order to establish the necessity of disclosure…"
In Financial Times v UK (2009) 50 EHRR 1153, it was stated at :
"60. …the national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. This interest will weigh heavily in the balance in determining whether the restriction was proportionate to the legitimate aim pursued. The Court reiterates that limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.
62. The Court reiterates that under the terms of Article 10 § 2, the exercise of freedom of expression carries with it duties and responsibilities which also apply to the press. Article 10 protects a journalist's right – and duty – to impart information on matters of public interest provided that he is acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III).
63. …While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information, courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the Court emphasises that the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2.
66. The Court notes that in Goodwin, it did not consider allegations as to the source's 'improper motives' to be relevant to its finding that there was a violation of Article 10 in that case, notwithstanding the High Court's conclusion that the source's purpose, in the Goodwin case, in disclosing the leaked information was to 'secure the damaging publication of information which he must have known to be sensitive and confidential' (see Goodwin, §§ 15 and 38, where it was argued by the Government that the source had acted mala fide and should therefore not benefit from protection under journalists' privilege of non-disclosure of sources). While the Court considers that there may be circumstances in which the source's harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order, the legal proceedings against the applicants did not allow X's purpose to be ascertained with the necessary degree of certainty. The Court would therefore not place significant weight on X's alleged purpose in the present case.
69. In this respect, the Court observes at the outset that where an unauthorised leak has occurred, a general risk of future unauthorised leaks will be present in all cases where the leak remains undetected (see Goodwin, §§ 17-18 and 41). In the present case, the Court notes that Interbrew received notice, prior to publication of the initial Financial Times article, that a copy of the leaked document had been obtained and that there was an intention to publish the information it contained. In contrast to the stance taken by the company in the Goodwin case, Interbrew did not seek an injunction to prevent publication of the allegedly confidential and sensitive commercial information. Moreover, the aim of preventing further leaks will only justify an order for disclosure of a source in exceptional circumstances where no reasonable and less invasive alternative means of averting the risk posed are available and where the risk threatened is sufficiently serious and defined to render such an order necessary within the meaning of Article 10 § 2. It is true that in the present case the Court of Appeal found that there were no less invasive alternative means of discovering the source, since Kroll, the security and risk consultants instructed by Interbrew to assist in identifying X, had failed to do so. However, as is apparent from the judgments of the domestic courts, full details of the inquiries made were not given in Interbrew's evidence and the Court of Appeal's conclusion that as much as could at that time be done to trace the source had been done by Kroll was based on inferences from the evidence before the court."
- In his witness statement, in detailing his professional activities, the fifth defendant describes himself as a journalist and identifies articles written in various publications. In his fourth witness statement Mr Armstrong, the solicitor acting on behalf of the defendants, states that he was instructed by the fifth defendant that he was acting as a citizen journalist.
- Reliance is placed upon the matters set out in paragraph 8 above which identify the belief and conclusions of the fifth defendant, arrived at on the basis of his research and analysis and of the necessity, in the public interest, of disseminating to the public at large the evidence of the criminal wrongdoing of the claimant, a prominent and influential business man, both as regards the death of Ms Novikova and more generally. The conclusions reached by the fifth defendant as to the public interest of his publications were based in large part on information which had been provided to him by the client. This information was provided pursuant to a confidentiality agreement concluded between the fifth defendant and his client.
- In publishing that material the fifth defendant was exercising his right to freedom of expression on matters of public interest, he was engaged in "citizen journalism". His role and actions come within the definition of a "journalist" for the purpose of Article 10 of the ECHR and the protection of sources. Moreover this activity was consistent with the fifth defendant's long-term practice. He engages only in truth-based campaigns in support of issues in which he believes, many of which he has conducted over the course of his lengthy career. Retaining the trust and confidence of his sources of information is critical to his capacity to continue in these activities. An order to disclose his source would gravely undermine the trust and confidence which past or future clients could pose in the fifth defendant's ability to maintain confidentiality of his sources.
- The client was a "source" for the purposes of Article 10. He provided information upon which the fifth defendant relied and thereafter disseminated it to the public.
- It is incumbent on the claimant to establish that such disclosure is justified.
The Claimant's Response
- The claimant does not accept that the relationship between the client and the fifth defendant was between a journalist and a source. Theirs is said to be a business relationship in which the fifth defendant was carrying out a campaign at the behest of the client to serve the client's interests. It is for the fifth defendant to establish that his client is a source which is to be protected. It is the claimant's contention that the client engaged the fifth defendant to act as an agent on its behalf in staging events and running a social media campaign that included publication. Insofar as the campaign included publication, the client was a primary publisher, not a source. The relationship between the fifth defendant and his immediate client was a business one, said to be driven by financial motives on both sides. Further, the claimant relies upon a number of documents identified in paragraph 43 below which are said to demonstrate the existence of the person called the "ultimate client" who was engaging and instructing the client who dealt directly with the fifth defendant.
- The fact that the client passed on information or documents to the fifth defendant does not of itself make it a source. The client had not witnessed the relevant events, it was not the origin of information or documents, it was a conduit of information and documents.
- As to section 10 of the Contempt of Court Act 1981 and the issue of whether disclosure is "necessary in the interests of justice" the background to the fifth defendant's actions is said to be relevant in judging the reasonableness of the fifth defendant's actions in the particular circumstances. How can the circumstances be assessed if the identity of the client, a critical part, is withheld? Of note, the claimant contends, is the statement by the fifth defendant's solicitor, Michael Armstrong, at paragraph 20 of his fourth witness statement dated 6 January 2017, when he states:
"The Fifth Defendant has informed me that he was instructed solely by the Client and that he did not know whether another party had, in turn, instructed the Client. Certainly, the Fifth Defendant never had any dealings with any such party."
This is said to be contradicted by documents disclosed by the fifth defendant which refer to a client who was instructing the fifth defendant's client. This is the client who is described by Ms Rogers QC on behalf of the claimant as the "ultimate" client. These documents include but are not limited to:
i) A document headed "Social Media Campaign Questions & Comments, 2014.06.12". This appears to be a document prepared by the fifth defendant and sent to the client. At page 4 it reads:
"Concerning the client
The client may not understand this logic. It is important to show the client the Mars site and to explain the social media strategy around it, so that the client is satisfied that the campaign is indeed a direct attack, and everything is understandable.
However, we would not be serving the client if we did it in the context of the client's very different world view."
In the response to the above document, a document which appears to have been prepared by the client he states:
"To conclude, the #Justicecampaign is the main focus, however as we have said before, the client wanted a site attacking the main target and his associates, so this is what we have created…"
ii) An email dated 21 March 2014 from the fifth defendant to a redacted recipient which appears to be the client, in which the following is stated:
"Our goal is to do a first-class job not only for the client, but as a way to solidify your boss' interest for long-term return."
iii) An email from the fifth defendant to a redacted recipient who would appear to be the client. It is dated 17 April 2014 timed 1:59am. It refers to the provision of an initial budget and one-pager for a six-month, renewable project. It continues:
"Your components of the project, of course, would have to be added. This six-month period leads to the approach to the World Economic Forum in Davos in January 2015, in which 500 international financial journalists would be crowded into a very small city during a global event that ties in with the client's interests…"
In reply to that email at 11:03:36am is an email from a redacted sender who appears to be the client:
"Dear Dr Waller, we just received notice that we can only allocate £500,000 for your budget for the whole year. We are currently trying to hammer out the details, please do give us a call as we will need to submit the final budget in half an hour…"
The statement made by the fifth defendant to his solicitor, absent any misunderstanding as between the two of them, cannot be reconciled with what is on the face of the documents. It is not contended on behalf of the fifth defendant that the ultimate client is a source. The existence of a person, company or organisation behind the direct client would be relevant to the circumstances pertaining at the time the fifth defendant acted and to the test encompassed within section 10 of the 1981 Act.
- At the original PTR hearing on 15 December 2016 three separate applications were before the Court, two related to disclosure of specific documents and electronic devices. The history of disclosure is protracted and unhappy. During the course of the adjourned hearing, at the instigation and urging of the Court, the parties finally agreed terms of disclosure. The stance of the claimant is that throughout he has met with a failure to disclose information on the part of the defendants. The original proceedings were issued against Persons Unknown. It was pursuant to the Order of Dingemans J that the first to fourth defendants were identified. They refused to disclose the identity of Melissa Van Buren who, according to them, had organised and orchestrated the Events. It was only disclosed following the Order of Master Davison on 31 March 2016 following an application to obtain disclosure of that information.
- The first to fourth defendants gave disclosure by list on 23 September 2016, the claimant made immediate complaint regarding the paucity of the disclosure and sought answers to many queries raised. The fifth defendant's list of documents was served on 7 October 2016. No electronic documents in their native format were disclosed, no claim to withhold inspection of any part of any document was made on the basis that it would reveal any "source". Nothing was said about any documents being held by the fifth defendant and/or his solicitors pending review. On 11 October 2016 the claimant's solicitors raised a number of queries about the fifth defendant's disclosure. Reference was made to the fact that the fifth defendant's involvement in the campaign had been over a significant period of time, they queried the assertion that not a single email communication with any party or third-party remained in his control.
- Within the fifth defendant's disclosure was a redacted document known as the "FBI Memo". On 12 October 2016 the claimant's solicitors sought information relating to it and raised concerns about the fifth defendant's explanation as to the paucity of disclosure. On 12 October 2016 the fifth defendant's solicitor dealt with an issue relating to access of documents provided on a memory stick and stated that they would address the balance of points raised "in due course". On 31 October 2016 the fifth defendant's solicitors replied to the concerns raised as to the nature and extent of the fifth defendant's disclosure. I accept the point made by the claimant that the letter conveys the impression that the fifth defendant's disclosure was complete.
- On 2 November 2016 the claimant issued his first application for disclosure being unhappy about the disclosure of the defendants which included the fifth defendant. On 22 November 2016 the fifth defendant's solicitor replied on the question of the "FBI Memo" and stated that "having considered the matter further" a redaction on the FBI Memo was to be removed, the redacted words were revealed as "an American businessman". On 24 November 2016 the claimant made a Request for Information pursuant to CPR 18 to the fifth defendant for additional information and clarification of the Re-Amended Defence. This specifically sought the identity of the client.
- On 1 December 2016, without notice or warning, the fifth defendant produced what is described by the claimant as "the most significant tranche of documents yet produced in this litigation". These contain the redacted documents, the subject of this application. The printed documents comprise two lever-arch files. As to the explanation for the delay in serving these documents the fifth defendant's solicitors stated in their letter dated 1 December 2016:
"…We enclose a memory stick containing documents which we are providing by way of supplemental disclosure on behalf of Dr Waller. It seems that three of the documents were not included on the memory stick. We therefore enclose these documents in hard copy. The documents were not originally included among the documents disclosed by Dr Waller on 6 October 2016, pending consideration of whether their disclosure (either in whole or in part) might lead to the identification of a source or sources and what, if any, redactions were necessary in order to protect the identity of any source (s). This review has now been completed. Unfortunately, the review took longer than we had hoped and we apologise for the delay in forwarding these to you."
- No further explanation has been forthcoming as to why these documents were not disclosed in October, why the claimant's solicitors were not put on notice that documents were being retained for the purpose of considering redaction, why it took from the beginning of October until 1 December to consider and then disclose these documents. Unsurprisingly, examination and consideration of these documents by the claimant's solicitors took time.
- On 12 December 2016 the fifth defendant provided his formal written response to the claimant's Request pursuant to CPR 18. Put shortly, he refused to disclose the identity of the client. It was on that day that the claimant's solicitors issued the application which is now before the Court.
- Given the history of difficulty of disclosure, the failure on the part of the solicitors of the fifth defendant to put the claimant on notice of outstanding disclosure and the redacted nature of the same, the significant and unexpected disclosure on 1 December 2016 by the fifth defendant, the refusal on 12 December 2016 of the fifth defendant to disclose the identity of his clients I do not accept the fifth defendant's contention that on the part of the claimant there has been delay in bringing this application, still less that it is a cynical ploy to derail this trial.
The Claimant's Application
- The claim against the fifth defendant is one of harassment. Consideration of that claim is likely to involve an assessment by the Court of whether "in the particular circumstances the pursuit of the course of conduct was reasonable". Given the considerable reliance placed by the fifth defendant upon the documentation supplied to him by the client together with whatever it is he derived from the "brainstorming" sessions with the client it is not difficult to understand the claimant's argument that in order to assess the fifth defendant's conduct in the context of the circumstances as they pertained at the time the identity of the client should be disclosed.
- That is not the only issue. The defence rely upon Article 10 ECHR and section 10 of the 1981 Act. Article 10 requires an evaluation of the fifth defendant's contention that he was acting as a "citizen journalist" implicit within which is the question of whether or not the fifth defendant was acting in good faith. In issue is the fifth defendant's statement to his solicitor that he knew of only one client. Disclosed documents would appear to indicate the existence of an "ultimate" client who was instructing the client and paying the costs and fees of the fifth defendant, facts which would appear to be known to the fifth defendant in 2014. This has to be relevant to the issue of the credibility of the fifth defendant, the exact nature of his relationship with the client and the reasonableness of his conduct. It is difficult to see how any course save that of cross-examination of the fifth defendant will resolve the apparent inconsistency.
- The documents relied upon by the fifth defendant, in particular those identified in paragraph 8 above are police reports, a post-mortem report, witness statements obtained by an investigative government department. The fifth defendant provides no information as to whether the documents were in the public domain, if not, what is the confidential nature or otherwise of them. Such matters would be relevant to the Court's consideration of the fifth defendant's claimed right of protection of his source.
- The protections afforded by section 10 of the 1981 Act and Article 10 ECHR are important. A balancing exercise is required to be carried out by the Court. This will require the Court to determine, inter alia, whether the fifth defendant was involved in what he genuinely believed was a legitimate campaign, whether he was acting as a journalist, what was the status of the documents upon which he relied, was it reasonable for him to pursue this course of conduct. Given the apparent issue of the credibility of the fifth defendant which is directly relevant to his alleged relationship with the client, and flowing from that the legitimacy of the campaign, I have come to the conclusion that the claimant's application for disclosure of the identity of the fifth defendant's client should be heard by the trial judge who will have the advantage, which I have not had, of seeing and hearing evidence from the fifth defendant. Determination of these issues requires the Court to be in as good a position as it reasonably can be to perform the balancing exercise. The oral evidence of the fifth defendant is necessary to assist the Court in this task.
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