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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Berezovsky & Anor v Forbes Inc & Anor  EWCA Civ 1251 (31 July, 2001)
Cite as:  EWCA Civ 1251,  EMLR 45
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr. Justice Eady)
Strand, London, WC2A 2LL
Tuesday 31st July, 2001
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
| BORIS BEREZOVSKY and NIKOLAI GLOUCHKOV
|- and -
|FORBES INC. and JAMES W. MICHAELS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. D. Browne QC and Mr. M. Nicklin (instructed by Messrs. Peter Carter-Ruck & Partners for the Respondents)
Crown Copyright ©
LORD JUSTICE SEDLEY:
"Keeping the old KGB busy
The authors of "Godfather of the Kremlin" are, of course, well known to the editors of Forbes and highly regarded here – but after you've read the article that starts on page 90, you will understand why we have omitted their names.
It reads like fiction, but this is the true story of the brilliant, unscrupulous Boris Berezovsky, a close associate of President Boris Yeltsin and a man who parlayed an auto dealership into Russia's most formidable business empire. Berezovsky stands tall as one of the most powerful men in Russia. Behind him lies a trail of corpses, uncollectible debts and competitors terrified for their lives.
A number of Forbes editorial staffers were involved in the reporting and picture-gathering over a period of many months. As one of them put it: "In Moscow, asking questions about Berezovsky was like being back there in pre-Gorbachev days. At the very mention of Berezovsky's name, people would look around furtively, lower their voices and try to change the subject."
Russians have good reason to be afraid of Berezovsky and people like him: Emulating the old communist bosses, the new crime bosses use KGB-trained assassins and enforcers. In the prevalence of brutality and extralegal power grabs, Russia hasn't finished paying the price of those 70 years of communism.
This is one of the finest pieces of reporting I have seen in my half-century in journalism."
"A. That Berezovsky is, or there are reasonable grounds to believe that he is, a corrupt and unscrupulous businessman who, through corrupt and unscrupulous dealings in business and politics (as set out below), has amassed a large personal fortune and become one of the most powerful men in Russia;
B. That Berezovsky has been, or there are reasonable grounds to believe that he has been, willing to use violence to advance his business interests and, in particular, that (a) he had dealings with criminal gangs which dominated the car industry in Russia, through which he made the foundation of his wealth and (b ) he asked General Korzhakov to 'terminate', that is, kill, Gusinsky, a business rival and others;
C. That Berezovsky was suspected of involvement in the murder of Vladimir Listiev."
In relation to the second claimant they were:
"A. That Glouchkov is, or there are reasonable grounds to believe that he is, a corrupt businessman who was engaged in corrupt dealings as set out below, including in relation to the Russian car manufacturer Avotvaz;
B. That Glouchkov is and was closely associated with Berezovsky who is, or there are reasonable grounds to believe that he is, a corrupt and unscrupulous businessman who through corrupt and unscrupulous dealings has amassed a large personal fortune."
"I would strongly wish to discourage appeals … on which the decision seems to me to lie essentially within the province of the judge in chambers. This rule [RSC O.82, r. 3A, the forerunner of CPR 53, PD 4.1] is intended to lay down a swift and inexpensive procedure in chambers to eliminate meanings which the words are plainly incapable of bearing."
On this, in Geenty v Channel Four Television  EMLR 524, 532, the same judge commented:
"I do not in any way resile from that general approach … but as Millett LJ pointed out in argument, there is a significant difference between the Hinduja case and the present case, in that in the former the judge ruled that the words were capable of the disputed meaning, thus leaving it to the jury to make the final decision, whereas here, on the judge's ruling, one of the two meanings relied upon is ruled out once and for all, from which it follows that the Court of Appeal should be a little less reluctant to interfere with the latter situation than in the former."
"12.-(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which –(i) the material has, or is about to, become available to the public; or(ii) it is, or would be, in the public interest for the material to be published;(b) any relevant privacy code."
It follows, in Mr Robertson's submission, that the repetition rule and the conduct rule, which in English common law deny a defence to a publisher who simply recycles a libel and insist that an allegation of reasonable suspicion has to be defended by attributing it to the claimant's own conduct, are incompatible with the Articles 6 and 10 of the Convention, particularly in the light of the decisions of the European Court of Human Rights in Bladet Tromso v Norway (2000) 29 EHRR 125 and Bergens Tidende v Norway (2001) 31 EHRR 16. An article written ethically and honestly is now to be judged not by making nice distinctions of pleaded meaning but according to a broad judgment whether, having regard to those true facts and fair comments which the article contains, it is necessary in a democratic society to restrict the journal's freedom of expression by making its publisher and editor liable for its inaccuracies. This argument stands free of s.5 of the Defamation Act 1952; but as a fallback Mr Robertson argues, on similar grounds, that s.5 now has to be read so that "distinct charges" include lesser and greater meanings of the same words.
"It seems to me that allowance for exaggeration is already made in the English law of defamation. This is to be found in the principles governing fair comment in cases of exaggerated opinions: see, for example, Silkin v. Beaverbrook Newspapers  1 WLR 743. In cases of statements of fact, a certain amount of exaggeration would be accommodated by the basic rule of justification that a defendant only has to prove the defamatory allegations to be substantially correct. It is sometimes expressed by saying that a defendant must prove the "sting" of the libel. That principle sits alongside the statutory provisions contained in section 5 of the Defamation Act 1952, which in themselves may assist a defendant to escape liability in circumstances when he has over-stated his case"
He was not deflected from this view by the Bladet Tromso case; but he had apparently not been shown the Bergens Tidende case, to which we shall come. He went on:
"Where I would differ from Mr. Robertson is over his submission that the European decision impacts on the court's approach to the determination of meaning. He suggests that a reasonable reader might say to himself that a less serious meaning should be attributed to the words complained of because a discount has to be allowed for exaggeration. I asked for his assistance on how that submission applied to the present facts. One example he gave was the allegation to the effect that Mr. Berezovsky appeared to leave behind him a trail of corpses. It is difficult to identify, however, what it is that one would be left with if one stripped out the exaggeration. What is the reasonable reader to assume is to be taken at face value and what is to be dismissed as exaggeration? How can one tell? What would the reasonable reader decide is the bedrock allegation once exaggeration has been excised? These questions pose, to my mind, real difficulties.
I should resist any temptation to become unduly intoxicated by the heady atmosphere engendered by the Human Rights Act. I ask myself to what extent, if any, English law fails to accommodate the policy considerations expounded in the Strasbourg jurisprudence. Having thought about it, I am not persuaded that there would be any incompatibility between it and the well known tests that an English judge has hitherto been required to apply on applications of this kind."
"It may be necessary in some cases to consider with some care the extent to which the boundary between assertions of fact requiring justification and comment as drawn by domestic law has been affected by the passage of the Human Rights Act 1998 and European jurisprudence."
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."
The right which it sets out is not absolute: it is conditioned, among other things, by the reputations and rights of others. In Douglas v Hello!  2 WLR 992 this court made it clear that for this if for no other reason s.12(4) of the Act adds little if anything to the legal armoury of the press: regard for the Article 10 right inexorably involves regard for the qualifications to it. It remains therefore for national legal systems to set their own thresholds of defamation and justification, subject always to the Convention standard of proportionality and (although Article 13 is omitted from the Convention rights scheduled to the Act) the right to a legal remedy for breaches.
"A. That Berezovsky is a corrupt and unscrupulous businessman who, through corrupt and unscrupulous dealings in business and politics (as set out below), has amassed a large personal fortune and become one of the most powerful men in Russia;
B. That Berezovsky has been willing to use violence to advance his business interests and, in particular, that he had dealings with criminal gangs which dominated the car industry in Russia, through which he made the foundation of his wealth.
It will be for the jury to say how far these allegations, if proved, draw the sting.
"5.86 In 1998, Aeroflot decided not to renew any of the facilities with Andava, Grangeland and Forus. This formed part of its attempt to distance itself from companies in which Berezovsky and/or Glushkov had an interest. Instead, it arranged credit facilities with two Russian banks and transferred its treasury management services to another service provider. In the Annual Report for 1998, Okulov, the General Director of Aeroflot:
i) emphasised the general duty of the directors of Aeroflot to take steps to safeguard the assets of Aeroflot and to prevent and detect fraud and other irregularities; and
ii) stressed that the company had been re-structured, both in terms of its management and the way that it cooperated with some of its partners, so as to bring the 'necessary transparency and efficiency' to the airline. The new board of directors of Aeroflot in February 1999 had approved a programme to stabilise the financial and economic operations of the company."
Eady J said of it, and of its corresponding paragraph in the Glouchkov pleadings:
"It relies upon matters in the 1998 annual report. Mr. Browne argues that those matters are not relevant to justification of any of the meanings pleaded. I agree they should come out. Also, more specifically, the facts postdated the publication of the article. It is thus clear that they cannot constitute reasonable grounds for suspicion, since that is a matter that has to be judged as at the time of publication."