Mionis v Democratic Press SA and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Lord Justice Lindblom,Lady Justice Gloster |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1194 |
| Docket Number | Case No: A2/2015/0106 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2017 |
[2017] EWCA Civ 1194
Lady Justice Gloster
Lady Justice Sharp
and
Lord Justice Lindblom
Case No: A2/2015/0106
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
Sir David Eady (sitting as a High Court Judge)
HQ13D03108
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Rampton QC and Ms Jane Phillips (instructed by Mishcon de Reya) for the Appellant
Mr Andrew Caldecott QC and Mr Adam Speker (instructed by Howard Kennedy LLP) for the Respondents
Hearing date: 26 October 2016
Approved Judgment
Introduction
On 13 November 2013, in a settlement agreement, the terms of which were scheduled to a Tomlin Order, the parties to this appeal, with the benefit of expert legal advice, compromised libel proceedings brought by the appellant against the respondents. Within a relatively short period of time, the respondents published two articles, which the appellant claimed, and the respondents now concede, were published in breach of clause 3.2 of the settlement agreement.
On 5 December 2014, Sir David Eady, sitting as a High Court Judge, refused the appellant's application to lift the stay in the proceedings imposed by the Tomlin Order; he refused the appellant's application for an injunction to enforce clause 3.2 of the settlement agreement; and he also refused to make an order for an inquiry as to damages occasioned to the appellant by the breach of the terms of the settlement agreement.
The respondents do not seek to support the reasoning of the judge below that clause 3.2 of the settlement agreement was too vague and uncertain to be enforced by way of an injunction. Nor do they now contend, as they did below, that they did not breach its terms. Instead by their Respondents' Notice they argue that the court should uphold the judge's decision, because the terms of the relevant clause are too wide; and having regard to section 12 of the Human Rights Act 1998 ("the 1998 Act") and the importance of freedom of expression, it would be disproportionate and/or contrary to public policy to grant the appellant the relief that he seeks.
The appellant however argues that the settlement agreement was a contract freely entered into for good consideration, with the benefit of expert legal advice on each side; none of the recognised grounds for setting the contract of settlement aside are asserted, still less established, and the respondents chose to waive their Convention rights to freedom of expression. In those circumstances, the court has no role to play in determining the validity of the terms of the contract of settlement, whether by reference to section 12 of the 1998 Act or at all, and should now grant the injunctive relief that is sought.
The issue we have to resolve therefore, narrowly stated, is whether the judge was correct to find that the relevant clause of the settlement agreement was unenforceable; and to decline to lift the stay imposed by the Tomlin Order dated 13 November 2013 and refuse the application for an injunction. Underlying that issue, however, is how the court should approach the balance to be struck between the important public interests engaged in holding parties to a settlement agreement freely entered into, on the one hand, and the public interest in freedom of expression on the other.
Factual background
The appellant Mr Sabby Mionis, is a businessman and philanthropist who has dual Greek and Israel nationality. He lives in Tel Aviv and maintains a residence in London. Until 2009, he was the Chief Executive Officer of CM Advisors Ltd ("CMA"), which was the management company of CMA Global Hedge, an investment company listed on the London Stock Exchange. The respondents are all connected to a Greek language newspaper, Demokratia, (the newspaper), which is published in hardcopy and online. The first to fourth respondents are respectively, the publisher of the newspaper, the Chairman of the first respondent, a journalist who writes for the newspaper and the newspaper's editor-in-chief.
In 2010 the former French Finance Minister Christine Lagarde passed a spread sheet (now known as the Lagarde list) containing the names of approximately 2000 Greek citizens linked to bank accounts held at the Geneva branch of HSBC, in confidence, to the Greek government, with a view to helping Greek officials identify individuals who had been involved in tax evasion. On 27 October 2012, the contents of the Lagarde list were published in print in Greece and online by Hot Doc magazine. It is common ground that the existence of the list, and issues surrounding it, were, as the appellant described it, in his pleaded claim for libel "a matter of intense public interest" in Greece, and elsewhere.
Between 29 October 2012 and 13 May 2013, the newspaper published a series of 18 prominent articles about the appellant (the original articles) and his connection with the Lagarde list. The original articles all appeared on the front page of the website edition, and most appeared on the front page of the hardcopy edition; six were accompanied by a cartoon of the appellant. I will limit my reference to the content of these and subsequent articles to matters it is necessary to outline for the purposes of this appeal.
The original articles repeatedly linked the appellant with a €500,000,000 bank account featured in the Lagarde list. For example, the first article, published on 29 October 2012, stated that a "female secretary" managed the €500,000,000 fund on the appellant's behalf. Another article published on 10 January 2013 referred to the appellant as "the protagonist in the "Lagarde list"". A third published on 22 February 2013 is titled "Who does Mioni's half a billion lead to now!"
The original articles published from 9 January 2013 added a further specific allegation, that the appellant quickly moved to liquidate CMA once his illegitimate activities had been revealed by the Lagarde list. For example, an article published on 10 January 2013 stated that CMA "was liquidated in a haste of panic at the end of 2010, when the leak of data from the Geneva branch of the private HSBC bank was made known i.e. the data now known as the "Lagarde list"". Another article published on 11 January 2013 stated that the appellant, along with a senior CMA employee, "hastily liquidated CMA Global Hedge".
The appellant's denial of wrongdoing and explanation of both the fund and the winding down of CMA was reported in the newspaper with evident disbelief. An account of the appellant's denial in an article published on 3 December 2012 was headed "What does the mysterious entrepreneur say about the account?" In an article dated 6 March 2013, the appellant's explanation was reported as including a number of "half truths" and "misrepresentations of reality".
A number of additional relevant features of the articles can be summarised as follows:
a. Repeated description of the appellant as a "businessman". These included numerous references to the appellant as a "Greek-Israeli businessman".
b. Repeated references to the appellant's relationship with Mr Stavros Papastavrou, a lawyer known to have acted for the appellant. For example, in the article published on 29 October 2012, the appellant was reported as confirming that Mr Papastavrou was involved in handling the Lagarde list fund on his behalf. Articles published on 11 December 2012 and 6 March 2013 describe Mr Papastavrou as the vice-director and legal councillor of CMA. The 6 March 2013 article also reported the appellant as confirming that Mr Papastavrou operated one of the appellant's company accounts "as a plenipotentiary for purely personal reasons of [the appellant's] own".
c. A reference to the fact that the appellant owned a house on the island of Antiparos.
d. References to Bermuda, including a number of references to "the Bermuda Triangle" and descriptions of CMA as "CMA Bermuda". For example, an article published on 11 December 2012 stated that "the CMA fund, based in Bermuda was headed by Mr Mionis and the legal councillor (as well as, for a period, vice managing director) was Mr St. Papastavrou". An article published on 3 December 2012 was titled "Earthquake in the…Bermuda Triangle".
e. A number of descriptions of the appellant which he says have strongly anti-Semitic overtones. In an article dated 9 December 2012, the appellant was described as "the characteristic type of Greek Jew entrepreneur who changes appearance depending on his business situation". The same article reports the appellant's school friends as describing him as "devious". These were accompanied by the above-mentioned frequent references to the appellant as a "Greek-Israeli businessman". The appellant was also variously described as "the mysterious entrepreneur", the "mysterious Sabby Mionis of a thousand faces" and "a mysterious Greek-Israeli businessman".
The appellant's case from the outset was that, taken as a series, these articles falsely portrayed him as the 'chief fixer' of tax evasion on a huge scale who, in an effort to avoid detection once the Lagarde list became public, shut down CMA in an attempt to avoid his conduct being detected; and that the articles form part of a campaign against him which is, at least in part, motivated by anti-Semitism.
In accordance with the Pre-action Protocol for Defamation, the appellant's solicitors sent a letter before action to the respondents, dated 15 May 2013, complaining of both the online and hard copy publications of the articles in the jurisdiction. The letter before claim dealt in considerable detail with the substance of the allegations made against the appellant, saying for example, that CMA...
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