Elena Baturina v Times Newspaper Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper,Lord Justice Sedley |
| Judgment Date | 23 March 2011 |
| Neutral Citation | [2011] EWCA Civ 308 |
| Docket Number | Case No: A2/2010/2180 and 2259 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2011 |
[2011] EWCA Civ 308
The Hon Mr Justice Eady
Before: Master of the Rolls
Lord Justice Sedley
and
Lord Justice Hooper
Case No: A2/2010/2180 and 2259
Case No HQ09D04851
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Romie Tager QC, and Justin Rushbrooke (instructed by Lass Salt Garvin) for the Appellant
Andrew Caldecott QC and Manuel Barca (instructed by TNL Legal) for the Respondent
Hearing dates: 1 st and 2 nd March 2011
The Master of the Rolls:
This is an appeal brought by Mrs Elena Baturina ("Mrs Baturina"), whose husband was until very recently the long-serving Mayor of Moscow, and a cross-appeal brought by Times Newspapers Limited ("TNL"), in relation to preliminary rulings made by Eady J, in connection with a libel action brought by Mrs Baturina against TNL. The alleged libel was contained in an article ("the article") which appeared on page 3 of the 27 September 2009 edition of the Sunday Times newspaper ("the newspaper"), which is published by TNL, and which also appeared on the "Times Online" website ("the website"), where it remained for two days.
The factual background
The article, which was trailed in a much shorter piece on page 1 of the newspaper, was captioned "Bunker billionairess digs deep" and subtitled "Russia's wealthiest woman is spending up to £100m to give her one of the biggest family homes in Britain". Above the caption were two photographs, side by side and, between them, occupying about a third of the page. The first showed the impressive exterior of a very large mansion with a superimposed photograph of Mrs Baturina with her husband apparently in front; the second photograph included an aerial view of the mansion, with a superimposed photograph of a model of what were implied to be proposed substantial underground extensions, together with a small location plan.
It is unnecessary to set out the whole contents of the article, or of the trailer. The essential point is that they both stated that Mrs Baturina, "Russia's richest woman", was "believed to be" the owner, of a house called "Witanhurst" ("the House") in Northwest London, which was described as London's largest residence after Buckingham Palace. The article suggested that Mrs Baturina had purchased the House through "a front company called Safran Holdings, based in the British Virgin Islands" for £50m, and that she intended to live there. The article contained more background, comment, and speculation, some of which was referred to by Mr Tager QC, who appears for Mrs Baturina, but such material takes matters no further, at least at this stage of the proceedings.
Within about three days of the article's publication, a representative of Mrs Baturina, a Ms Kolyuchaya, informed TNL that the article was inaccurate, and that it damaged Mrs Baturina's reputation, for reasons to which I will turn. To cut a relatively long story short, on page 24 of the 4 October 2009 edition of the newspaper, TNL published a brief statement headed "Clarification". After referring to the article by title and the fact that it reported that Mrs Baturina had bought the House, the statement ended: "We are told that this is not correct." This brief statement was also published on the website, where it remains.
There is nothing inherently defamatory in publishing a story that a claimant has purchased a house when she has not in fact done so. Accordingly, although her original statement of case seems to have proceeded partly on that basis, Mrs Baturina's claim is not based on the ordinary and natural meaning of the article. The sole reason Mrs Baturina now contends that the article was defamatory is founded on an alleged innuendo.
The alleged innuendo arises from a decree promulgated by the President of the Russian Federation on 18 May 2009, Decree Nr 561 ("the Decree"). Article 2 of the Decree required all officials and civil servants of the Federation to "post on the official web-sites", and provide to "all-Russian mass media", certain information about their assets and income. Article 2(a) extended to a "list of real estate belonging to the person …, his/her spouse and minor children by title or used by them, specifying the type, area and country of location of each object"; article 2(b) extended to a "list of transport vehicles …", and article 2(c) to "the declared annual income of the person …., his/her spouse and minor children."
Although it may ultimately turn out to be wrong, the only evidence in this case so far as to the effect of the Decree is from Ms Kolyuchaya, who is a Russian lawyer. That evidence is that, although it may not appear obvious to an English lawyer, the Decree would have been understood by Russians to require Mrs Baturina, as the spouse of an official, namely the Mayor of Moscow, herself to comply with article 2 of the Decree. As the Judge said, in the absence of any clear and cogent evidence to the contrary, it would be wrong not to proceed at this interlocutory stage on the basis that this evidence is correct.
In any event, it appears that Mrs Baturina did indeed apparently list the properties and the vehicles which she owned, and declare her income, in the manner stipulated by article 2 of the Decree. The list of properties in the declaration ("the declaration"), purportedly provided and published pursuant to the Decree, did not include the House.
Mrs Baturina's declaration appears to have received significant publicity in Russia, particularly in relation to her declared income. The evidence shows that it was commented on in a number of Russian websites, mostly on blogs, which concentrated both on the substantial size of her income and on the large amount by which it exceeded her husband's income.
Mrs Baturina's case is based solely on publication in this country and in Russia. Her pleaded contention was that the inference which would be drawn from the article was that she had "used nominees as the shareholders and officers of [Safran Holdings] to hide her interest as the beneficial owner" of the House, and that she "had failed to declare her ownership of and interest in Safran [Holdings] and/or [the House], pursuant to Russian law".
TNL issued an application to strike out Mrs Baturina's claim, or else for the grant of summary judgment in its favour. This resulted in her statement of case being fairly radically amended, and, although permission to amend had not been granted by the time the application came on before Eady J, the hearing before him proceeded on the basis of Mrs Baturina's proposed amended statement of case.
A summary of the relevant evidence
The evidence before the Judge (as supplemented before us without objection) included the following.
So far as publication in this country is concerned, the circulation of the newspaper was obviously extensive, apparently over 1 million copies. However, when considering Russian readership, it is very relevant that there are, it appears, around 400,000 Russians who reside (on a short- or long-term basis) in this country. The circulation of the newspaper was very small indeed—some five copies, including one via a "print on demand" service.
As for the website, it appears that there were around 30,000 hits on the electronic version of the trailer on page 1. Of those hits, just over half were from the United Kingdom, and just under 1,000 from Russia. As for the electronic version of the article on page 3, there were nearly 2,800 hits, of which nearly 1200 were from the UK and 400 from Russia. These hits do not necessarily equiparate to readers as some readers may return to the story or trailer – and, although much less than with the newspaper, some hits may represent more than one reader.
Mrs Baturina's statement of case referred to a large number of website "blogs" which were alleged to have referred to the contents of the article. All of those blogs appear to have originated from Russia, a substantial number of them do not refer to the article or its contents at all, and, of those that do, only one makes any link between the contents of the article and the declaration, and that link is in something of a throw-away line at the end of the blog.
The issues
TNL's arguments before Eady J, in so far as those arguments are maintained before us, are as follows:
• Mrs Baturina's case should be dismissed as TNL could not reasonably have foreseen why the article could be defamatory on the grounds now alleged;
• In any event, in all the circumstances, it is not just and reasonable to permit Mrs Baturina to pursue her claim in whole or, alternatively in part;
• In so far as Mrs Baturina can pursue her claim, she should be required to plead specific instances of individuals who understood the article to carry the innuendo she alleges.
The Judge decided that the claim should be permitted to proceed against two of the four classes of alleged readers of the article, but dismissed the claim in so far as it related to two other classes of reader. Essentially, therefore, he rejected TNL's case on the first issue, but upheld it in part in relation to the second issue. He also identified defects in Mrs Baturina's proposed amended statement of case, and indicated that it should be amended.
Mrs Baturina appeals against the decision, with a view to reinstating her claim in relation to the two classes of reader in respect of whom her claim stands dismissed under the second issue. TNL cross-appeals against the decision in relation to the first and second issue,...
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