Berezovsky and Another v Forbes Inc. and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LADY JUSTICE HALE,Lord Justice Sedley |
| Judgment Date | 31 July 2001 |
| Neutral Citation | [2001] EWCA Civ 409,[2001] EWCA Civ 1251 |
| Docket Number | Case No: A2/2000/3743,A2/00/3743 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2001 |
[2001] EWCA Civ 1251
Lord Justice Aldous
Lord Justice Sedley
Lady Justice Arden
Case No: A2/2000/3743
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr. Justice Eady)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. G. Robertson QC, Ms H. Rogers and Ms S. Mansoori (instructed by Messrs. Pinset Curtis Biddle for the Appellants)
Mr. D. Browne QC and Mr. M. Nicklin (instructed by Messrs. Peter Carter-Ruck & Partners for the Respondents)
The judgment which follows is the judgment of the court.
1. Forbes magazine is a long-established and reputable periodical published in the United States of America for an educated and prosperous readership. Just under 2,000 of its 765,000 copies circulate in the United Kingdom. In its issue of 30 December 1996 it carried a major article which the second appellant, Mr Michaels, described editorially as “one of the finest pieces of reporting I have seen in my half-century in journalism”. It concerned the first claimant, Mr Berezovsky, who is described by his own counsel as a Russian tycoon with extensive business and media interests, and the second claimant, Mr Glouchkov, formerly the deputy managing director of the Russian airline Aeroflot.
2. It is the case of the two claimants, the respondents to this appeal, that the article without factual justification accuses them both, but Mr Berezovsky especially, of involvement in crime of the most serious kind. Forbes contend – or wish to contend – that the article justifiably recounts that the claimants are suspected of crime but does not go so far as to accuse them of it. Whatever meaning the jury accord it, however, Forbes say that the publication is entitled to the protection of qualified privilege; a plea which the claimants meet both by contesting its availability and by asserting malice. Forbes also rely, though without particularity, on section 5 of the Defamation Act 195They lastly deny any injury to reputation. The case has already reached the House of Lords where, by a majority of 3 to 2, their Lordships ( [2000] 1 WLR 1004) held that England was a permissible forum for this litigation.
3. It is not necessary to reproduce the contentious article in full. It was introduced by a trailer at the top of the front cover: “The most powerful man in Russia (No, not Boris Yeltsin)”, and by an entry on the contents page which read: “Boris Berezovsky. Russia, these days, is a bubbling cauldron of criminal organisations – Sicily on a giant scale”. The editorial read:
“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.”
4. The Lucas-Box meanings pleaded by Forbes were these:
“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.”
5. On the claimants' application to strike out the material passages of the defence Eady J, setting out his reasons in a full and careful judgment, held that the limited meanings pleaded by Forbes were unsustainable. The article in its context, he held in effect, could have meant only, as the claimants asserted it did, that Mr Berezovsky was a gangster boss who had amassed his fortune by having political and business rivals murdered and by large-scale fraud and intimidation; and that Mr Glouchkov was an associate of his, with a conviction for theft of state property, who had helped him to steal funds from Aeroflot and Avtovaz. The judge accordingly struck out numerous passages of the defences (there are technically two actions, but they have proceeded as one throughout). Of these, Forbes with the permission of this court now seek the reinstatement of an important handful in the Berezovsky action: head (C) of the Lucas-Box meanings, quoted above; paragraph 5.48, setting out reasons why the police suspected Berezovsky of responsibility for Listiev's murder; and paragraph 5.86, recounting Aeroflot's recent measures to distance itself from the claimants' business interests.
6. The principal question for this court is whether Eady J was right to exclude the lesser meanings on which Forbes relied as their first line of defence. It poses as an initial issue the question of the respective roles of the judge of first instance and of this court in relation to the limits of meaning. It also raises the consequential question of whether partial justification is possible not of a distinct charge which is part of a larger libel but of a lesser charge than that which the libel makes.
7. For the claimants Mr Desmond Browne QC submits that meaning is, as Lawton LJ once called it, a jury question for the judge, and one in which an appellate court should accordingly be exceedingly slow to intervene, limiting itself to cases of egregious error or, more mundanely, cases where the judge is plainly and obviously wrong. This court, he reminds us, has in recent years reiterated its reluctance to encourage interlocutory appeals on meaning. In Hinduja v Asia TV Ltd [1998] EMLR 516, 523 Hirst LJ said:
“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 [1994] 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.”
8. For Forbes, Mr Geoffrey Robertson QC contends not simply that this judicial self-denial is today inappropriate but that the meaning of meaning in defamation actions has itself been altered by the Human Rights Act 199Both, he submits, have to be reoriented towards the enlargement of press freedom. The argument derives support from the statutory obligation of the English courts since 2 October 2000 to act in accordance with the European Convention on Human Rights and to construe legislation so far as possible in conformity with it, having proper regard to relevant decisions of the European Court of Human Rights (Human Rights Act 1998, ss.6, 2 and 3). It relies too on s.12, which provides among other things:
“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...
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