Panagiotis Koutsogiannis v The Random House Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 18 January 2019 |
| Neutral Citation | [2019] EWHC 48 (QB) |
| Docket Number | Case No: HQ18M00776 |
| Court | Queen's Bench Division |
| Date | 18 January 2019 |
THE HONOURABLE Mr Justice Nicklin
Case No: HQ18M00776
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Rushbrooke QC and Julian Santos (instructed by Harbottle & Lewis LLP) for the Claimant
Alexandra Marzec (instructed by Simons Muirhead & Burton LLP) for the Defendant
Hearing date: 12 December 2018
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.
THE HONOURABLE Mr Justice Nicklin
This libel action arises from publication, in 2017, of a book titled “ The Spider Network” by the Defendant (“the Book”). The author was David Enrich, Financial Enterprise Editor of the Wall Street Journal. The Book concerned the infamous Libor ‘rigging’ scandal. On the front cover of the Book, potential readers were told it was, “ The Wild Story Of A Maths Genius, A Gang Of Backstabbing Bankers, And One Of The Greatest Scams In Financial History”.
The Claimant has spent a career working in banking. He joined UBS Investment Bank (“UBS”) as an interest rate derivative trader. From around January 1999 to August 2012, the Claimant held the post of Global Head of Cross Currency Basis Swap Trading at UBS.
The Claim Form was issued on 28 February 2018. The Amended Particulars of Claim were served on 20 March 2018. Paragraph 3 contained the words selected for complaint by the Claimant. They are set out in the Appendix to this judgment.
The Claimant contends the words complained of bear the following defamatory meanings:
i) the Claimant as part of a gang of back-stabbing bankers and one of the greatest scams in financial history, dishonestly and criminally conspired with other employees of UBS to skew, rig and/or manipulate Libor (the London Inter-bank Offered Rate) on a plentiful number of occasions, in order to benefit his own trading positions and thus benefit financially, defrauding a very large number of normal people with mortgages, car loans or credit card bills, pension funds, municipalities and corporate bodies in the process, and depriving them of money that was rightfully theirs;
ii) as a result of such misconduct, the Claimant was investigated and banned by the UK Financial Regulator, the Financial Conduct Authority (“FCA”), from performing any influential role in the British financial industry because he was dishonest and lacked integrity, his punishment later being vacated on appeal owing to an odd system for handling appeals; and
iii) also as a result of such misconduct, the Claimant was fired by his employer UBS.
On 20 June 2018, Deputy Master Bard ordered the trial of the following preliminary issues:
i) what meaning the words complained of bear; and
ii) insofar as the words complained of referred to the Claimant, whether those words, or any of them, were a statement of opinion.
No defence has yet been filed, but the Defendant has set out a statement of its case on the preliminary issues. In summary, the Defendant contends:
i) the words complained of do not bear, would not be understood to bear and are not capable of bearing the Claimant's meanings;
ii) in order to ascertain the proper meaning to be attributed to the words complained of they must be read in the context of the Book as a whole;
iii) specifically, as to context, the Court should have regard to further passages of the Book (which I have set out in italics in the Appendix); and
iv) many of the passages complained of by the Claimant do not refer to him either expressly or implicitly.
In consequence, the Defendant contends that, when read in their proper context of the Book as a whole, the passages selected for complaint by the Claimant meant that:
“the Claimant was involved in a network of collusive behaviour, whereby he, along with many other traders, brokers and bank employees all over the world, deliberately tried to nudge Libor to positions beneficial to their own or their employers' trading positions.”
The Defendant's primary submission is that the words complained of bear no other imputation defamatory of the Claimant. In the event that the Court were to find further defamatory imputations critical of the Claimant's conduct suggesting, for example, that he had behaved “ improperly and/or immorally and/or unethically” then the Defendant contends that such imputations would be understood by readers to be expressions of opinion.
This is the judgment following the trial of these preliminary issues.
Meaning: The Law
There has been no dispute as to the legal principles. They are well-established and very familiar.
The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D–E, per Lord Diplock.
The following key principles can be distilled from the authorities: see e.g. Slim v Daily Telegraph Ltd 175F; Charleston v News Group Newspapers Ltd [1995] 2 AC 65, 70; Gillick v Brook Advisory Centres [2002] EWCA Civ 1263 [7]; Charman v Orion Publishing Co Ltd [2005] EWHC 2187 (QB) [8]–[13]; Jeynes v News Magazines Ltd & Anor [2008] EWCA Civ 130 [14]; Doyle v Smith [2018] EWHC 2935 [54]–[56]; Lord McAlpine of West Green v Bercow [2013] EWHC 1342 (QB) [66]; Simpson v MGN Ltd [2016] EMLR 26 [15]; Bukovsky v Crown Prosecution Service [2017] EWCA 1529 [2018] 1 WLR 18; Brown v Bower [2017] 4 WLR 197 [10]–[16] and Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB) [20]:
i) The governing principle is reasonableness.
ii) The intention of the publisher is irrelevant.
iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues' gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning).
As to the Chase levels of meaning, see Brown v Bower [17]:
They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. In Charman v Orion Publishing Group Ltd, for example, Gray J found a meaning of “ cogent grounds to suspect” [58].
Context is particularly important when the words complained of are part of a book. The ordinary reasonable reader is taken to have read the whole of the book: Brown v Bower [10]. Specific guidance in relation to ascertaining the meaning of a book was provided by Gray J in Charman v Orion:
[11] It appears to me to be...
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