Sabby Mionis v Democratic Press SA and Others
| Jurisdiction | England & Wales |
| Judge | Sir David Eady,SIR DAVID EADY |
| Judgment Date | 05 December 2014 |
| Neutral Citation | [2014] EWHC 4104 (QB) |
| Docket Number | Case No: HQ13D03108 |
| Court | Queen's Bench Division |
| Date | 05 December 2014 |
[2014] EWHC 4104 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir David Eady
Sitting as a High Court Judge
Case No: HQ13D03108
Richard Rampton QC and Jane Phillips (instructed by Mishcon de Reya) for the Claimant
Adam Speker (instructed by Reynolds Porter Chamberlain) for the Defendants
Hearing date: 12 November 2014
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.
On 13 November 2013, the parties to this libel action entered into a confidential settlement agreement scheduled to a Tomlin order of the same date. Each side had the benefit of advice from experienced London solicitors during the negotiations. It was part of the agreement that it should be governed and construed in accordance with English law (clause 12.1) and that any dispute arising out of it should be subject to the exclusive jurisdiction of the English courts (clause 12.2). The Claimant now alleges that the Defendants are in breach of its terms and seeks an injunction against each of them, with a view to enforcement, and also an inquiry as to damages occasioned by the alleged breaches. The terms of the settlement were to be regarded as confidential, subject to certain specified exceptions, which included such disclosure as was "necessary to implement and/or enforce any part of the settlement agreement" (clause 11.3.4).
The background concerns a series of articles published in the Greek language newspaper Demokratia from 29 October 2012 to 13 May 2013, which are said on the Claimant's behalf to form part of "a sophisticated campaign against him" and to have included "gratuitous and deeply offensive personal attacks upon him". There were altogether 18 such articles, all of which were published on the front page of the newspaper's website and most of them on the front page of the hard copy editions. The claim was limited, as I understand it, to such publications as took place within the jurisdiction of England and Wales. It is accepted that the newspaper is not published here in hard copy but the Defendants accept that it may have been read here "by a very few people on the internet".
The subject matter of the articles was the so called "Lagarde list", which had been passed in 2010 by the then Finance Minister of France, Mme Lagarde, to the Greek government with a view to helping the relevant authorities to identify any individuals involved in tax evasion. The list consisted of a spreadsheet containing the names of approximately 2000 Greek citizens linked to bank accounts held at the Geneva branch of HSBC. Although I understand that the list had originally been passed in confidence, it was published in full (both in hard copy and online) on 27 October 2012 by Hot Doc magazine. The contents of the list thus became widely known and this underlies an innuendo meaning pleaded in the libel action.
The Claimant is described as a businessman and philanthropist. He was until 2009 the chief executive of CM Advisers Ltd ("CMA") which was the management company of CMA Global Hedge, an investment company listed on the London Stock Exchange. The essential and oft repeated theme of the articles sued upon, it is said, is that he had knowingly and dishonestly facilitated tax evasion on a large scale and that, following publication of the list, he immediately sought to shut down his businesses in order to cover his tracks. The Claimant denies the truth of any of these charges and the libel proceedings were commenced in June 2013.
The settlement agreement was entered into a few months later. As the second Defendant put it in his witness statement (at para. 19), this was "purely a business decision" for the Defendants. (They had made a challenge to the jurisdiction of the court which remained outstanding at the time of the settlement agreement and was never resolved.) The Claimant agreed to forego any damages or costs because, he says, he wanted to bring the campaign to an end so that he "could sleep well at night". What he obtained thereby, in particular, were the Defendants' undertakings (i) to publish an article (accompanied by a photograph of him) the truth of which he warranted in all material respects (clause 2.2), (ii) not to repeat the offending allegations (clause 3.1), and (iii) not to publish, in any jurisdiction, any articles or statements which "refer to" the Claimant or his "immediate family", a concept expressly defined as including his mother, father, brother or children, but subject to certain exceptions as to reports of court proceedings or parliamentary inquiries (clause 3.2).
In exchange for these concessions the Defendants were relieved of the pressures of litigation. Mr Rampton QC borrowed a phrase of Bean J from Small v Turner [2013] EWHC 4362, at [9]. Until the settlement, he said, they had been "staring down the barrel of an extremely expensive defamation action".
It will be noted that the restrictions imposed upon the Defendants' future conduct went in certain respects beyond anything the court would have been able to grant if the Claimant had proceeded successfully to trial. The standard form of injunction, when granted at the close of a successful libel claim, would prevent only publication of the words complained of and "any similar words defamatory of the claimant" (emphasis added). Specifically, however, these Defendants are not permitted to refer to the Claimant or members of his family in any way; they are not merely prevented from publishing words that are defamatory, false, in breach of privacy or otherwise prima facie unlawful. That does not mean in itself that the terms of the agreement are unenforceable. Parties are, in general terms, allowed to negotiate an agreement, by way of settling litigation, which goes wider than the scope of legal remedies obtainable from the court.
It is now suggested by reference to a witness statement from the Claimant's solicitor, that there have been breaches of clause 3.2. The first breach relied upon is to be found in two articles published in the issue of Demokratia dated 20 January 2014 (both in hard copy and online). The second breach alleged relates to the edition dated 23 June 2014. The second Defendant has explained in his witness statement that, in his view, "… we took sufficient steps to disguise the Claimant and his brother's identity to satisfy our obligations under the settlement agreement". Evidence has been produced from some 20 witnesses, however, to say that they read the 23 June article as referring to the Claimant in the light of their background knowledge of him and of the Lagarde list. Moreover, submits the Claimant, any reasonable reader with some knowledge of the rather notorious background would understand these articles to refer to the Claimant (and the June article also to his brother).
The solicitor's witness statement explains that the Defendants' original allegations about the Claimant had become common knowledge and, in particular, the often repeated assertion to the effect that he was behind half the money referred to in the Lagarde list. As Mr Rampton put it, the Defendants made him the "central character" or "chief fixer". It had been said, for example, on 29 October 2012 (in the first of the articles complained of) that a female secretary was named on that list and that she managed half a billion Euros on behalf of the Claimant. He himself was reported as confirming that she did indeed handle the money together with one Solomon Levy and a lawyer called Stavros Papastavrou (who is known to have acted for the Claimant). He denied, on...
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