Elena Baturina v Times Newspaper Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Eady
Judgment Date31 Mar 2010
Neutral Citation[2010] EWHC 696 (QB)
Docket NumberCase No: HQ09D04581

[2010] EWHC 696 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Eady

Case No: HQ09D04581

Between:
Elena Baturina
Claimant
and
TIMES NEWSPAPERS LIMITED
Defendant

Romie Tager QC and Anna Coppola (instructed by Lass Salt Garvin) for the Claimant

Manuel Barca (instructed by Times Newspapers Ltd) for the Defendant

Hearing dates: 4–5 February 2010

Mr Justice Eady
1

The Claimant, Elena Baturina, is a citizen of the Russian Federation and the wife of Yuri Luzhkov, who has been the Mayor of Moscow for the last 18 years. She also conducts a property investment business through a corporate entity known as INTECO. She claims remedies in respect of articles contained in the Sunday Times for 27 September 2009. The first appeared on the front page under the heading "Russians' $100m London palace" and the second on page 3 under the heading "Yelena Baturina: bunker billionairess digs deep". These are said to contain allegations defamatory of the Claimant.

2

The Defendant, Times Newspapers Ltd, is the publisher of the newspaper and of the Times Online website, through which the articles were also published, although only for a very short period. They were taken down by 29 September.

3

There is no need to set out the content of the articles in extenso. It will suffice to say that their effect was to convey the allegation that a large mansion in Highgate, known as Witanhurst, had been acquired by the Claimant through an off shore company based in the British Virgin Islands referred to as "Safran Holdings". The purchase price was said to be £50m and mention was made of a further £50m to be spent on the property. Those allegations in themselves are not defamatory.

4

It has recently been recognised, on the Claimant's application to amend the particulars of claim, that her claim could only survive on the basis of setting up at least one viable innuendo meaning. Without a sustainable innuendo, the claim would be doomed to failure.

5

Reliance has been placed on a photo montage appearing alongside the page 3 article, which apparently shows the Claimant and her husband waving to onlookers. This has obviously been superimposed on a photograph of the house in question. A good deal of attention has been devoted to castigating the montage which has been described as a "blatant forgery". This is a point which should have been laid to rest long ago, but it is said to represent an issue fit to be tried by jury as being relevant to the aggravation of damages. It can plainly be referred to, for what it is worth, as part of the context, but it does not justify an allegation of dishonesty against the Defendant.

6

On the other hand, if the Defendant's primary submissions now before the court are accepted, the question of damages would not arise. By its application notice dated 16 December 2009, the Defendant seeks a ruling that the words complained of are incapable of bearing the pleaded meanings or any meaning defamatory of the Claimant. The natural and ordinary meanings originally pleaded were framed in rather curious terms. In paragraph 10, it was said that the words and photograph contained the imputation that "… the Claimant was the beneficial owner of Witanhurst … notwithstanding the fact that she is not the beneficial owner and/or that there was no evidence in the Jersey companies register or at the Land Registry or elsewhere that linked the Claimant with either Safran or Witanhurst". (The reference to Jersey arises because at one time it seems to have been thought that this was where the company was registered.)

7

In paragraph 13 of the original particulars of claim, the natural and ordinary meaning was also expressed as being "… that the Claimant was the beneficial owner".

8

In paragraph 14, it was alternatively alleged that the words conveyed the defamatory meaning "… that the Claimant had arranged for Witanhurst to be purchased by an off shore company using nominees as the shareholders and officers of that company in order to hide her interest as the beneficial owner".

9

There were also pleaded at the original paragraphs 18 and 19 of the particulars of claim two innuendo meanings. That in paragraph 18 was framed as follows:

"… that [the Claimant] had failed to declare her ownership of and interest in Safran and/or Witanhurst, pursuant to the Russian law."

This was pleaded on the basis of certain extraneous facts. As originally pleaded, these were to the following effect; namely, that on 18 May 2009 the President of the Russian Federation approved and promulgated a decree, numbered 561, which inter alia required officials and civil servants of the Russian Federation and members of their families to make available and publish their income, property and liabilities. Information so disclosed was published on the official websites of the Federation and made available to the media. Against this background, it was said that the Mayor of Moscow was the holder of an office requiring him and his family to publish their income, property and liabilities. It was pleaded that, accordingly, the Claimant, as the wife of the Mayor, was herself obliged to publish such a declaration. She had not declared that she was the beneficial owner of Witanhurst or Safran.

10

It was said that the Internet edition of the newspaper was likely to be accessed by persons in Russia and elsewhere, including in England and Wales, with an interest in prominent individuals such as the Claimant. It is also claimed that such persons, or some of them, would be aware that she had made no declaration of interest in either Safran or Witanhurst. Thus such persons would infer that the Claimant was in breach of the presidential decree.

11

Moreover, at paragraph 19, it was originally pleaded that the words and photograph would convey the additional innuendo meaning that "… she was insensitive and/or un-neighbourly by failing to openly identify herself as the beneficial owner of Safran and/or Witanhurst in the context of consulting locally and with any relevant bodies or other organisations in respect of the proposals for the extensive restoration, refurbishment and/or improvement of Witanhurst, which the first and second articles estimated might cost an additional £50 million". The extraneous facts relied upon for this innuendo were, so far as I understand it, to the effect that Witanhurst had remained unoccupied for many years and had become increasingly dilapidated. Thus, any proposals for its restoration, refurbishment, improvement and/or modernisation would be likely to prove controversial. In order to bring them about, sensitive and transparent discussions would be required with the immediate neighbours, and with local and heritage organisations such as the Highgate Society and the Victorian Society. At all events, it now appears that this rather contrived innuendo is to be deleted.

12

In the light of its comprehensive challenge to those pleaded meanings, the Defendant sought an order that the claim form and particulars of claim be struck out and/or that summary judgment be entered under CPR Part 24.

13

Against this background, Mr Barca for the Defendant submitted that the words were incapable of bearing any defamatory meaning and/or that the innuendo meanings, as originally pleaded, had no real prospect of succeeding. Alternatively, he submitted that their introduction was an abuse of the court's process "on proportionality grounds".

14

There was also a challenge to the original paragraph 20 of the particulars of claim, which pleaded that there had been republications of the defamatory words on various websites, "which, in at least 2 cases (viz. chaskor.ru on 28 September 2009 and the 5 October 2009 edition of Novaya Gazeta) drew attention to the absence of any reference to Witanhurst in the Claimant's said disclosure pursuant to the Russian Law". It was argued on behalf of the Defendant that there was no basis for establishing liability on its part for the "republications" there alleged. Since the Sunday Times articles had made no reference to the Russian decree in question, or to any declaration, any such allegations could not be categorised as "republications". They should be regarded as separate and independent.

15

Mr Barca also attacked the contents of the original paragraph 21 of the particulars of claim, which sought an order for the publication of a correction and apology to make clear that the Claimant was not the owner of Witanhurst and had no interest either in Witanhurst or the corporate owner.

16

Just before the hearing took place, there was a proposal for wholesale amendment of the particulars of claim. The draft submitted was dated 2 February 2010. Mr Barca contends that this, if permitted, would do nothing to improve the strength of the Claimant's position.

17

On 28 September 2009, the press department of the Claimant's company INTECO wrote to the editor of the Sunday Times. The complaint was that it was untrue that either the Claimant or INTECO had bought Witanhurst or "had any relations with the company registered as the owner of Witanhurst". The editor was asked to publish a "disclaimer", the last sentence of which was rather obscure and has never been clarified. It may be that this was brought about by language difficulties, but it is remarkable that the meaning has never been explained in the succeeding months. It stated that the Claimant "… is beside the purchase and reconstruction of the said mansion". I suspect that this is intended to mean that she had nothing to do with it.

18

Also on 28 September 2009, a press release was issued by INTECO, which contained a statement by Mr Terebkov (who has prepared a witness statement for use in the present application). This made the rather cryptic observation:

"We do not rule out that the names of the...

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