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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sloutsker v Romanova (Rev 1) [2015] EWHC 2053 (QB) (16 July 2015) URL: https://www.bailii.org/ew/cases/EWHC/QB/2015/2053.html Cite as: [2015] EMLR 27, [2015] EWHC 2053 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
VLADIMIR SLOUTSKER |
Claimant |
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- and - |
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OLGA ROMANOVA |
Defendant |
____________________
The defendant, a litigant in person, did not appear and was not represented
Hearing date: 13 July 2015
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Crown Copyright ©
Mr Justice Warby:
A. Introduction
B. The Procedural History
Events up to 5 March 2015
i) "that the Claimant had put a contract out for the murder of Alexei Kozlov, which was to be carried out whilst Mr Kozlov was being transferred to prison" (the Blogpost).
ii) "that the Claimant had ordered the fabrication of evidence in the criminal prosecution of Alexei Kozlov and had put a contract out for the murder of Mr Kozlov, which was to be carried out whilst Mr Kozlov was being transferred to prison" (the Second Article);
iii) "that the Claimant had threatened to kill Alexei Kozlov and had put a contract out for his murder, which was to be carried out whilst Mr Kozlov was being transferred to prison" (the Third Article); and
iv) "that the Claimant had by means of bribes corrupted the head of the Presnensky Court, Evgeny Mikhailovich Naidenov, the public prosecutor and Judge hearing the appeal in Alexei Kozlov's case, Judge Vasyuchenko, and had issued instructions to them that Mr Kozlov's sentence of imprisonment was to be increased at his appeal hearing (whereas otherwise he would have been released) and was thereby guilty of an horrific perversion of the course of justice." (The Programme).
"I have concluded that the claim involves a real and substantial tort in this jurisdiction, and that England is clearly the appropriate place in which to try the claim. I have found that the steps taken by the claimant brought about service of the proceedings on the defendant in October 2013, which was valid and effective under Russian law and the CPR.
Next steps
The proceedings can now continue… "
"Conducting proceedings here will naturally pose challenges for the defendant, and for the court. The evidence in the claimant's exhibits suggests that there may be large disparities in resources. It is said that the defendant cannot afford representation. But that is not supported by evidence. In any event, I do not consider the difficulties to be insuperable. I consider on the evidence presently before me that the defendant can and will be given a fair opportunity to defend herself in this court and will not be prevented from putting forward any case that it is reasonably open to her to advance."
Events since 5 March 2015
"I have not granted the order sought for service of a Defence by 17 April as I consider the defendant should have an opportunity to respond on that point, and on the issue of directions generally, as well as the other issues mentioned in the order.
She will however need to address in her response the points made in paragraphs 14 and 15 of the claimant's submissions of 12 March 2015. She should recognise that the existing directions are relatively generous as to time, and should work on the basis that I may be persuaded to timetable the service of a Defence by 17 April or soon after."
"2. The interim payment I am ordering in the sum of £10,000 represents a small proportion of the costs said to have been incurred on the Claimant's behalf. In the absence of evidence about the Defendant's means I cannot conclude that it is an inappropriate sum to order her to pay. My order gives her a month to do so. She has an opportunity to apply for and to file evidence in support of a reduction in the amount or an extension of the time to pay."
3. Within that time the Defendant should file and serve a Defence. I consider that in the light of my order and reasons of 13 March 2015 the time allowed is sufficient. If the Defendant needs more time she can apply, giving reasons. She should be aware that if she fails to file and serve a Defence the Claimant may apply for judgment in default of Defence."
The defendant's letter of 19 June 2015
"I have decided to write to you in order to fully explain my current circumstances, and specifically address why I am no longer able to engage with the court in relation to my case."
"I have the utmost respect for English law and the English courts, but on this occasion I feel that the justice system has let me down. I am no longer able to take an active role in these proceedings going forward. I hope the English courts can understand my position, and I trust the Honourable Mr Justice Warby will take into account my current position when he reaches his final decision on the matter."
C. Adjourn or Proceed in the Defendant's Absence?
"Where a party fails to appear at the hearing of an application the court may proceed in their absence: CPR 23.11. This is a power that must be exercised in accordance with the overriding objective. Ms Page properly referred me to authority making it clear that the court should be very careful before concluding that it is appropriate to proceed in the absence of a litigant in person who is seeking for the first time to adjourn a hearing: Fox v Graham Group Ltd (26 July 2001) (Neuberger J); SmithKline Beecham Ltd v GSKline Ltd [2011] EWHC 169 (Ch) (Arnold J), [6]. That is not the situation here, however. The defendant has not sought an adjournment. …
Where a litigant fails to appear without giving a reason it is necessary to consider first whether they have had proper notice of the hearing date and the matters, including the evidence, to be considered at the hearing. If satisfied that such notice has been given, the court must examine the available evidence as to the reasons why the litigant has not appeared, to see if this provides a ground for adjourning the hearing."
(i) Language difficulties
"My native language is Russian, and I only have limited knowledge of English. I have found it very difficult to engage with the English courts in relation to my case because of my limited ability to speak, read and write in English. I have had to rely on my husband, Alexei Alexandrovich Koslov, to translate many of the email communications and documents I have received in relation to my case. My husband's knowledge of English, although slightly better than my own, is far from fluent. Furthermore, due to my financial position, I have also been unable to afford translators to work on my case. This has meant that I have been unable to read Russian translations of the court's documents. This includes the Honourable Justice Warby's written decision of 5 March 2015.
… I am unable to ascertain my legal position from these documents [provided to her by iLaw] due to language issues, my lack of legal representation and my lack of translation resources"
"I am able to speak some English and can read and understand English. In order to make this witness statement, I communicated with my solicitors in English and through a Russian lawyer in Russian. The statement was then drafted in English and I have been able to read and understand it and confirm that it is accurate."
(ii) Financial position
"On 1 April 2015, I received a court document from iLaw. It was my interpretation of this document that I had to pay 10,000 GBP to the English courts before I could proceed with defending my case. I viewed this as a completely unreasonable sum as I do not have the means to pay such a large sum of money."
(iii) Inability to obtain pro bono representation
"In April 2015, I reached out to Karinna Moskalenko, a Russian human rights lawyer, to see if she could help me with my case free of charge. I felt that I needed a lawyer's advice to see what I could do about my case, and Karinna Moskalenko is a personal friend. She consulted with a number of people to see if they could help me. On 20 April 2015, I also contacted Anna Stavinchkay, another Russian lawyer to see if she could advise me in relation to my case free of charge."
"Anna and Karinna spoke with each other, and on 2 June 2015 Karinna spoke with Peter Noorlander who is the Chief Executive Officer of the Media Legal Defence Initiative. The Media Legal Defence Initiative … then reached out to its pro-bono network but was ultimately unable to find lawyers to take on my case due to its complexity at this stage. I have tried every effort to find free legal defence, but to no avail, and I now believe it is impossible for my position to be fairly represented before the British courts."
(iv) Inability to conduct the litigation in person
(vi) Adverse impact of a judgment
"This case has now become like a runaway cart that I am unable to stop, and ultimately it is going to have an incredible financial and reputational impact on my life.
….
I am a reputable journalist in Russia, and I rely heavily on my good name as a journalist. A judgment against me from an English court would seriously affect my status as a journalist in my own country."
(vi) Merits
"I wish I was in a position to defend my rights as a journalist and justify the blog, articles and radio interview that are the subject matter of this case. However, it is simply not possible for me to do so without some form of legal representation.
I stand by my belief that Mr Sloutsker's claim is without merit, and that I practised responsible journalism in disclosing the information that I did."
"PO/C: Every Wednesday evening, a group of wives meet in this Moscow restaurant. Many of them say Russia's security service, the FSB, have arranged for their husbands to be jailed on trumped up charges.
Woman: [Speaking in Russian with sub-titles ..................]
PO/C: In some cases they say their husbands were jailed because they posed a political threat or just because the men who run Putin's Russia want a slice of their companies. The inspiration for these dinners was Olga Romanova, a financial journalist whose husband had been in prison for three years. I went back to Olga's to find out about her husband and her fight to free him. Until three years ago her husband Alexey ran a successful construction business. Then, Olga wrote an article about the business dealings of Mordashov, an ally of Vladimir Putin. She said that soon after an official close to Putin made a menacing call to Alexey's business partner who passed the message on.
OR: He told my husband he had to choose. Either he had to leave his wife who he had allowed to write about Putin or to stop being his business partner.
PO: So what happened next? What did your husband do when he was given this choice between divorcing you and getting out of the business?
OR: I was amazed he didn't even want to discuss us getting divorced. I thought he was more rational.
PO/C: Soon after, the FSB investigated him and he was sentenced to 8 years for fraud. In Russia, few people regard the courts as independent of the state.
PO: So who is it who is bringing charges against your husband?
OR: The K Department of the FSB. It's the same unit that has jailed people for political and commercial reasons before us and is still doing it now.
PO/C: Olga believes Putin was guilty of allowing businesses to be unfairly seized to enrich his allies.
OR: Putin's FSB cronies are ideologically loyal so they are allowed to earn infinite money."
"(2) is responsible for extrajudicial killings torture, or other gross violations of internationally recognized human rights committed against individuals seeking "
(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or
(B) to obtain exercise, defend, or promote internationally recognised human rights and freedoms …."
"The tragic and unresolved murders of Nustap Abdurakhmanov, Maksharip Aushev …. the death in custody of Vera Trifonova, the disappearances of Mokhmadsalakh Masaev… the torture of Ali Israilov… the near-fatal beatings of Mikhail Bekhetov … and the harsh and ongoing imprisonment of Michail Khodorkovsky, Alexei Kozlov … further illustrate the grave danger of exposing the wrongdoing of officials of the Government of the Russian Federation … or of seeking to obtain, exercise, defend, or promote internationally recognized human rights and freedoms."
Summary of conclusions
D. Damages
Legal principles
"Not merely can [the claimant] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."
i) Ms Page relies on the suggestion in Gatley paragraph 9.4 (above) that in assessing damages for injury to reputation account should be taken of the extent to which the defamatory charge has been persisted in. That must be qualified, it seems to me. Compensatable damage may continue because the defendant has not withdrawn or apologised for the defamation; but the court must be careful not to treat assertions that an allegation is true as conduct that in itself increases harm to reputation, or otherwise aggravates damages. Persistence in asserting the truth can aggravate injury to feelings, and is compensatable if the allegation is manifestly unsustainable. However, as pointed out by Lord Neuberger of Abbotsbury NPJ in Blakeney-Williams v Cathay Pacific Airways Ltd [2012] HKCFA 61, 62, [2013] EMLR 6 at [105], it is wrong in principle to award aggravated damages on account of a good faith defence of truth. (See also Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd [2012] HKCFA 59, [2013] EMLR 7 [132] (Ribeiro P)).
ii) Ms Page also relies on the fact that my March judgment was reported in the Russian media, in reports which included reference to the defendant's allegation that the claimant sought to have Mr Kozlovsky murdered. One of these is, by way of example, headed "London court to hear libel suit brought by ex-Russian senator Slutsker". The claimant's witness statement refers to this as a matter relevant to damages. In the course of argument however Ms Page has accepted that these reports are only relevant to the extent that their publication in this jurisdiction increased the injury to the claimant's feelings. Given my conclusions about the reach of the publications complained of, and the nature of the reports relied on, I accept that these reports will have been read by a substantial number of people in this jurisdiction. But I cannot attribute a significant element of any damages award to any hurt feelings suffered by the claimant on that account. The reports in evidence are fair and neutral accounts of the proceedings and my judgment. Whilst they will have brought the allegation to the attention of a reader who did not previously know of it, they will equally have informed such a reader that the claimant is suing the defendant for libel and that the case is going ahead.
Gravity
"I do not think that I am required, and Mr Singh does not ask me, to consider whether [the claimant's pleaded] meanings are apposite, in the sense of being the correct meanings of the words complained of. It seems to me that the claimants are entitled to rely on the judgment and on the terms of CPR 12.11. That may be just as well, because the task of assessing the meanings of a variety of different publications, some of which may have been read or heard by some publishees and others of which may have been read by other publishees, would be a protracted one.""
The extent of publication
"Even on the defendant's figures, however, and allowing for the qualifications she puts forward, the sting of the allegations made on each of the Blogpost, the Second Article and the Third Article could easily have reached as many as 60,000 readers in this jurisdiction, and the Programme appears likely to have been heard or read here by several thousand at least."
Evidence of harm
Assessment
E. The Claim for an Injunction
F. Overall Conclusions