Mardas v New York Times Company and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady,THE HONOURABLE MR JUSTICE EADY |
| Judgment Date | 17 December 2008 |
| Neutral Citation | [2008] EWHC 3135 (QB) |
| Docket Number | Case No: HQ08X00896 & HQ08X00875 |
| Court | Queen's Bench Division |
| Date | 17 December 2008 |
[2008] EWHC 3135 (QB)
The Honourable Mr Justice Eady
Case No: HQ08X00896 & HQ08X00875
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Desmond Browne QC and Victoria Jolliffe (instructed by Stockler Brunton) for the Claimant
Geoffrey Robertson QC and Guy Vassall-Adams (instructed by Finers Stephens Innocent) for the Defendants
Hearing date: 21 November 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady :
There are now two actions before the court (HQ08X00896 and HQ08X00875). They are claims brought by Mr John Alexis Mardas against, respectively, the New York Times Company and the International Herald Tribune SAS. He alleges that defamatory articles were published within this jurisdiction, both in hard copy and on line.
Despite an admission in its defence, International Herald Tribune now denies that any publication took place in this jurisdiction by way of hard copy. It has been explained in evidence that the original admission was made in error. It is admitted that publication occurred on line and, what is more, it continues to this day.
The Master struck out both actions on 10 June 2008. Permission to appeal was granted by Sir Charles Gray on 10 August 2008. The Master founded his decision on case management considerations, lack of proportionality and the decision of the Court of Appeal in Jameel (Yousef) v Dow Jones Co Inc [2005] QB 946.
Both actions concern the publication on 7 February 2008 of an article by Allan Kozinn under the heading “Meditation on the Man Who Saved the Beatles”. The words complained of are as follows:
“The Beatles' first encounter with the Maharishi was at a lecture in London, not long after the release of 'Sgt Pepper' … At the time the Beatles, especially Lennon and Harrison, were still trying to tap into the cosmic subconscious, or eternity, or whatever, by using LSD. The Maharishi's transcendental meditation techniques promised to get them there without the chemicals. They agreed to attend a retreat in Bangor, Wales, at the end of that August, and it was during the retreat that they learned that Brian Epstein, their manager, had died of a drug overdose.
The Maharishi helped them through the shock with Hindu philosophy about the continuing life of the soul, and a few months later, in February 1968, the Beatles flew to Rishikesh to devote themselves fully to his instruction. Also there at the time were Mike Love of the Beach Boys, Donovan and the actress Mia Farrow and her sister Prudence (immortalised in a Beatles from the same batch as 'Sexy Sadie'.
Ringo Starr left after the first week, saying he was unable to eat spicy food. Mr McCartney left about three weeks later, and Lennon and Harrison left about two weeks after that, after hearing rumours that the Maharishi had made sexual advances to one of the women in the ashram. Lennon, as the group's designated defiant loudmouth, went to the Maharishi and said 'We're leaving', adding only – as he reported the story in interviews – 'If you're so cosmic, you'll know why'.
In the years since Lennon's death, in 1980, Harrison and Mr McCartney reconsidered the accusations against the Maharishi. Mr McCartney has noted that the rumours of sexual impropriety were raised by Alexis Mardas, a supposed inventor and charlatan who had become a Beatles insider. 'Magic Alex', as he was known, had agendas of his own, and may have fabricated (or at least exaggerated) the story. (Mr Mardas has never commented on the incident.) During the 1990s both Harrison and Mr McCartney were suitably convinced of the Maharishi's innocence that they reconciled with him and offered apologies …
Meanwhile you have to wonder whether the Beatles' future might have played out differently if Magic Alex hadn't been in Rishikesh to spread rumours about the Maharishi. Instead of unravelling, as they did during the White Album sessions and throughout 1969, maybe meditation would have left them so prolific and contented that they'd have continued together, releasing a double album every six months or so.”
The natural and ordinary meanings are pleaded as follows:
i) the Claimant was a conman and trickster who had falsely claimed to be an inventor;
ii) the Claimant, for his own personal interests and advantage, had made up and spread false allegations that the Maharishi had made sexual advances to one of the women in the ashram;
iii) had the Claimant not made up and spread the rumours about the Maharishi, the Beatles might well have continued together as a group for longer than they did and produced many more recordings.
In the New York Times action the application was issued on 8 May of this year seeking orders to the effect that:
i) the court should not exercise its jurisdiction to try the claim;
ii) the court should set aside the claim form and dismiss the action; alternatively
iii) the proceedings should be stayed generally; or
iv) the action should be struck out as having no realistic prospect of success and/or as an abuse of the process of the court.
Reliance is placed on CPR Parts 1, 3, 11 and 24.
The application in the International Herald Tribune action was issued on 4 June, shortly before the application in the New York Times case was due to be heard before the Master. Reliance was placed in this instance on CPR Parts 1, 3 and 24.
So far as the International Herald Tribune was concerned, the Master decided that there was no realistic prospect of establishing that there had been publication of the offending words in hard copy. What he said was this:
“8. I have come to the conclusion in this case, and am satisfied, that the claimant stands no real prospect of success in establishing that there was a hard copy publication in the International Herald Tribune.
9. On the one hand, there is evidence from Mr Stockler, the claimant's solicitor, signing a statement of truth on the particulars of claim saying it was published. On the other hand, there is extensive evidence from the International Herald Tribune, and in particular Mr Marino, that it was never published at all. It is true that there are potential holes to be picked in some of the evidence that Mr Marino gives. He exhibits front pages only of newspapers, he exhibits front of newspapers which plainly were for sale in France, not in England, but what is clear from Mr Marino's evidence, not the real evidence of the newspapers, but nevertheless sufficiently real evidence from Mr Marino himself, is that this article never appeared in the newspaper itself.
10. If evidence is needed to support that then, on the following day, there was a 'flagging', as it is called, of the article on the Internet – in other words, what I infer is being said editorially is, 'If you are interested in reading about the Maharishi', because the article was, as I have said, following the death of the Maharishi, 'you might like to look at the article that is published on our website'.”
As to the availability of the International Herald Tribune on line, the Master found that there were only about 27 hits. On the other hand, his conclusion in relation to the New York Times was that there were only four hits from England on the Internet publication, whereas there had been published approximately 177 hard copies.
On the basis of these findings of fact, which were by no means uncontested, the Master went on to conclude that the litigation represented an abuse of process. He expressed his conclusion as follows:
“21. When I look to see what would be taken up by this case in terms of money, in terms of costs, in terms of what is at stake, in terms of proportionality, and above all, I am bound to say, in terms of the court's resources, tying up twelve good men and true in a jury for four or five weeks possibly, and a court and a judge, to decide whether damages should be awarded and, if so, what damages should be awarded to a claimant in respect of matters that happened 40 years ago in respect of publication to, at most, a couple of hundred people, and probably not even that many, on the evidence before me I have come to the conclusion that these claims are an abuse of process and should be struck out, and I shall so order.”
In granting permission to appeal, Sir Charles Gray made the following succinct observations:
“… The contested questions as to the number of hard copy issues and Internet hits cannot be resolved on an application such as the present one.
Jameel v Dow Jones is authority for the proposition that a libel action may be struck out as an abuse of the process where the evidence is that the extent of publication within the jurisdiction is very small. Is there a real prospect that the Applicant would be able to satisfy the court that this is not such a case? In my judgment such a real prospect exists in the circumstances of this case. I think the instant cases are distinguishable on their facts from both Jameel and Kroch v Rossell [reported at [1937] 1 All ER 725], on both of which the Master placed reliance in his judgment. In my view it is at least arguable that the Applicant has a reputation in this country which he is entitled to seek to vindicate. I do not think it can be said that this is a case of forum shopping.
The concern of the Master about what he described as the monumental costs of these actions is understandable. However, I consider it to be well arguable that such considerations do not generally of themselves justify the striking out of actions as an abuse. I...
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