Alvaro Sobrinho v Impresa Publishing SA
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 22 January 2016 |
| Neutral Citation | [2016] EWHC 66 (QB) |
| Docket Number | Case No: TLJ/15/0654 |
| Court | Queen's Bench Division |
| Date | 22 January 2016 |
[2016] EWHC 66 (QB)
Mr Justice Dingemans
Case No: TLJ/15/0654
IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Desmond Browne QC and Jonathan Barnes (instructed by Gresham Legal) for the Claimant
Matthew Nicklin QC and Victoria Jolliffe (instructed by Carter-Ruck) for the Defendant
Hearing dates: 7 th, 8 th and 9 th December 2015
INTRODUCTION
This is a libel claim brought by Alvaro Sobrinho ("Mr Sobrinho") against Impresa Publishing SA ("Impresa"), a company incorporated in Portugal which publishes the weekly Saturday Portuguese newspaper "Expresso".
Mr Sobrinho was born in Angola and is a citizen of both Angola and Portugal. He is ordinarily resident in the Canton of Vaud, Switzerland. He is an international banker who has operated mainly in Angola. Mr Sobrinho was employed as a banker by Banco Espirito Santo ("BES") which was, until August 2014, the second largest bank and financial institution in Portugal. BES also operated in Angola and in 2000 created a subsidiary called Banco Espirito Santo Angola ("BESA"). Mr Sobrinho was Chief Executive Officer and President of the Executive Board of BESA from 2000 until December 2012. In 2013 he became Executive Chairman of Banco Valor, another bank operating in Angola. Mr Sobrinho is also the founder and chairman of the Planet Earth Institute ("PEI"), a charity registered in England and which is based in London.
Expresso is a weekly newspaper which is printed in Portugal. It is described as the Portuguese equivalent of the Sunday Times or Sunday Telegraph, and is known for its probing political reporting. Expresso has a hard copy circulation of just under 90,000 in Portugal. There was a hard copy circulation of 136 in England and Wales for the relevant edition.
Impresa also owns and maintains websites. The content of published editions of Expresso was available on one of the websites to subscribers, leitor.expresso.pt ("the subscriber website"), but there was also provided open free access to certain articles on another website, expresso.sapo.pt ("the open website"). There were 52 digital subscriptions in the jurisdiction of England and Wales for Expresso for the subscriber website. There is data which shows the extent of the access to part of the article on the open website. The article could also be accessed through Factiva, a business information and research service, which operated a website which was available in leading institutions including the British library and some universities.
The libel claim is brought in respect of an article published in the 7th June 2014 edition of Expresso on the front and other pages. The article was also available on the subscription website through subscriptions from 7th June 2014, and from 9 December 2014 part of the article published on 7th June 2014 was available on the open website. Although the article was published on the front and other pages of the newspaper meaning that some of the subsequent pages could have been read on their own, and although only part of the article was published on the open website, the Claimant originally complained only of the publication of the whole of the article.
Mr Sobrinho became aware of the publication of the article and wanted a retraction and apology. After some pre-action correspondence in both England and Portugal in which the possibility of pursuing proceedings in more than one jurisdiction was referred to, Mr Sobrinho commenced libel proceedings in England on 4th July 2014, saying in evidence that the response to his solicitors' correspondence had left him no option but to commence proceedings. However the Claim Form and was not endorsed with permission to serve out of the jurisdiction, and the Claim Form was therefore amended and reissued and was served with the Particulars of Claim on 14 July 2014.
On 15th July 2014 a criminal complaint for libel against the journalists, the photographer and officers of Impresa was lodged in Portugal.
In August 2014 BES collapsed and required a bail out from the central bank in Portugal. BES was later restructured into two parts, a new bank and an old part with the debts. The BES collapse threatened the Portuguese economy and caused huge public concern and anger. The collapse was extensively reported in Portugal, and was an issue of such importance that the Parliament in Portugal held a Parliamentary inquiry into the causes of the requirement for the bail out of BES. This inquiry started in October 2014.
On 5 September 2014 Impresa issued an application to strike out the English proceedings. So far as the proceedings in Portugal were concerned it appears that in the period up to December 2014 some of the named journalists made statements setting out their limited involvement with the articles and some of the other named parties did not make statements.
On 18 December 2014 Mr Sobrinho gave evidence to the inquiry in Parliament in Portugal. Mr Sobrinho's evidence was televised on 1 or 2 channels, and Mr Sobrinho thought that it might have been available on You Tube. He said that it was " an unprecedented opportunity to put the record straight". The evidence shows that there was extensive coverage of Mr Sobrinho's evidence by the media in Portugal. Mr Sobrinho said in evidence that the result of the coverage was that it clarified the situation to friends and institutions.
It appears that in Portugal the public prosecutor decided not to pursue the complaint for criminal libel made by Mr Sobrinho, meaning that the proceedings in Portugal would not be pursued to Court unless Mr Sobrinho issued civil proceedings. There is a 6 month time limit for bringing civil proceedings for compensation in Portugal following the lodging of the criminal proceedings.
On 9th February 2015 Mr Sobrinho issued civil proceedings in Portugal for libel, claiming damages in the sum of 500,000 euros. The extent to which those proceedings sought compensation for damages suffered in respect of the publication in England is in issue before me.
At the same time there was continuing media coverage of the Parliamentary inquiry and the report produced on 29 April 2015 by the inquiry. On 30 April 2015 Mr Sobrinho discontinued his civil proceedings in Portugal. He explained in his witness statement that he had discontinued the libel proceedings in Portugal because " as a result of the public inquiry in Portugal and the coverage it received" Mr Sobrinho felt " that I have achieved all that I could expect to have achieved through proceedings there, perhaps more". In evidence Mr Sobrinho said that it became clear as a result of the Parliamentary inquiry that it was the activities of other individuals which had led to the collapse of BES.
THIS HEARING
Impresa complain about the commencement of libel proceedings in England in respect of a circulation and distribution which they contend was " miniscule" when compared to the circulation and distribution in Portugal. Impresa particularly complain of the continuation of the libel proceedings in circumstances where proceedings in Portugal against Impresa in respect of the same article have been discontinued. Mr Sobrinho contends that he has a reputation in England as a philanthropist and as chairman of the Board of Trustees of PEI which he wants to vindicate, and that by discontinuing the proceedings in Portugal he was acting reasonably and properly.
By order dated 10th June 2015 Master McCloud ordered the trial of preliminary issues relating to: (1) the meaning of the words complained of; (2) whether section 1 of the Defamation Act 2013 ("the 2013 Act") was satisfied; and (3) whether the action should be dismissed as an abuse of process.
It is only fair to Mr Sobrinho to record that in the event that the action continues, the issue on liability to be determined will be whether Impresa have a defence under section 4 of the 2013 Act (publication on matter of public interest). Impresa do not seek to justify the meaning of the article.
Before the hearing the Claimant's legal advisers gave notice that they wished to amend the Particulars of Claim to adjust the meaning of the article which had been pleaded, and it was common ground that this amendment should be permitted subject to the issue of costs, which were reserved. I therefore granted permission to amend the Particulars of Claim to plead the full meaning contended for by the Claimant.
During the course of the hearing, following submissions from Mr Nicklin QC about the way in which the Claimant's case had been pleaded, the Claimant sought permission to re-amend the Particulars of Claim to rely on the publication of part of what was pleaded as the original article on the open website, and to make some re—amendments to factual matters. Although the general nature of the re-amendment was addressed in submissions, there was no written re-amendment available at the conclusion of the hearing. I therefore directed the Claimant to produce the draft re—amendment and submissions in support of that re-amendment, and I also directed the Defendant to address the proposed re-amendment in further submissions, and I will address that application to re-amend the Particulars of Claim below.
At the hearing I had evidence in the form of witness statements and there was cross examination of some witnesses as to fact. There was also expert evidence from Dominic Minett ("Mr Minett") and Nicholas Priest ("Mr Priest") about the proper translation of the Portuguese article. There was an agreed translation apart...
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