The Hon Nathaniel Philip Victor James Rothschild v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 10 February 2012 |
| Neutral Citation | [2012] EWHC 177 (QB) |
| Court | Queen's Bench Division |
| Date | 10 February 2012 |
| Docket Number | Case No: HQ10D02547 |
[2012] EWHC 177 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ10D02547
Hugh Tomlinson QC and Justin Rushbrooke (instructed by Schillings) for the Claimant
Andrew Caldecott QC and David Glen (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing dates: 23, 24, 25 and 26 January 2012
The Claimant ("Mr Rothschild") sues the Defendant ("ANL") for libel on an article headed "EXCLUSIVE: Mandelson, an oligarch and a £500m deal" which was published in the issue of the Daily Mail dated Saturday 22 May 2010 and online ("the Article"). The Article was described as a 'special investigation', and extended over the front page and pages 2, 8 and 9 of that issue. The headline on page 9 reads: "Revealed: the astonishing story of the night Lord Mandelson was flown to Moscow by private jet to join a billionaire friend desperate to strike a deal that cost British jobs".
THE PARTIES AND OTHERS NAMED IN THE ARTICLE
The individuals named in the Article include the following.
Mr Rothschild describes himself as a member of the well known Rothschild banking family, who is a banker and businessman. He is the Co-Chairman of Vallar Plc, a company listed on the London Stock Exchange, and the Chairman of JNR Ltd, an investment advisory business primarily focussed on emerging markets and the metals, mining and resources sector. He states that he provides financial advice to Mr Deripaska, that he is a member of the International Advisory Board of United Company Rusal PLC ("Rusal"), and (through a company controlled by him) the holder of shares in Rusal purchased for a sum in excess of $100 million. He is also a director of EN+ Group Ltd, which holds substantial interests in a number of Russian metal, mining and energy companies, including a controlling stake in Rusal.
Mr Deripaska controls Rusal and other major Russian businesses through his ownership of EN+ Group and Basic Element. He is amongst those commonly referred to as Russian oligarchs. Rusal is incorporated in Russia and the world's largest alumina and aluminium producer.
Since 2006 Mr Rothschild and Mr Deripaska, together with Mr Peter Munk, have also had business interests together. Mr Munk is the Chairman and founder of Barrick Gold Corporation ("BGC"). BGC is incorporated in Canada and is one of the largest gold mining companies in the world. The business interests that they have in common include a project for the development of a port in Montenegro, which is mentioned in the Article, and other projects which are not mentioned. Three of those projects were not mentioned in the Article, but are of significance to these proceedings. One was a project for the exploitation of mines in Tajikistan and Kyrgyzstan. Another was a project for taking over a Russian gold producing company, Polymetal, for which they ultimately made an unsuccessful bid at a sum of $900 million. A third was an interest in a gold mine called Jerooy which had until a short time before been licensed to an English company Oxus Gold Ltd.
Baron Mandelson of Foy (formerly Peter Mandelson) is a prominent and very well known Labour Politician. He served as a government minister between 2 May 1997 and 23 December 1998; between 11 October 1999 and 24 January 2001; and subsequently between 3 October 2008 and 11 May 2010. Lord Mandelson is, and has for many years been, a close and long standing friend of Mr Rothschild. They regularly socialise and take holidays together. In August 2004, it was announced that Lord Mandelson had been appointed as the next European Commissioner for Trade. He formally resigned his seat for the Hartlepool constituency on 8 September 2004, and commenced his term of office as Commissioner on 22 November 2004. He left his post as Commissioner on 3 October 2008 in order to return to the UK Government as Secretary of State for Business Enterprise and Regulatory Reform.
As Commissioner, Lord Mandelson was responsible for the European Commission's Directorate-General for Trade. That is the body charged with designing, implementing and communicating EU trade and commercial policy. The Directorate-General's stated remit includes: defining the trade interests of the EU in defensive and offensive terms; negotiating bi-lateral, regional or multilateral agreements with third countries; monitoring the implementation of international agreements and tackling unfair practices; devising and monitoring internal and external policies which have a bearing on the EU's trade and external investments (including policies relating to inter alia, the single market, consumer, energy, competitiveness and competition).
Those who hold public office are obliged to conform to certain standards of conduct, not only in the performance of their public functions, but also in their private lives. In the case of Commissioners these standards were at the relevant time set out in the Code of Conduct for Commissioners SEC (2004) 1487/2, pursuant to Article 213(2) of the EC Treaty. The general requirements of this Code, in so far as they relate to private life, are so obvious as hardly to need stating. They are set out in its Introduction, which includes the following:
"The Treaty articles on the Commission make special reference to the complete independence enjoyed by Members of the Commission, who are required to discharge their duties in the general interest of the Community. In the performance of their duties they must neither seek nor take instructions from any government or from any other body.
In addition, the general interest requires that in their official and private lives Commissioners should behave in a manner that is in keeping with the dignity of their office. Ruling out all risks of a conflict of interests helps to guarantee their independence…"
The events in question in this action took place around the World Economic Forum ("WEF") held at Davos in Switzerland on 26 to 29 January 2005. 29 January was a Saturday. On Sunday 30 January Mr Rothschild flew in his own plane from Switzerland to Moscow with Mr Munk, Lord Mandelson and others, including Mr Sebastian Taylor, who is a personal friend of Mr Rothschild. He had no business interests relevant to these proceedings. On the Sunday evening, after the dinners in Moscow described below, Mr Rothschild, Lord Mandelson, Mr Munk and Mr Taylor all flew with Mr Deripaska, in Mr Deripaska's private plane overnight from Moscow to Abakan in Siberia ("the Siberian trip"). On Monday the party went visiting together in Siberia, and enjoyed other activities. On Tuesday Lord Mandelson flew back to Brussels in Mr Rothschild's plane (which had followed them from Moscow to Abakan), while the other members of the party flew on to Tajikistan and Kyrgyzstan for meetings with the Presidents of those states, and other high officials, to discuss the business of the possible joint venture between them in mining.
OVERVIEW OF LIBEL AND THE COURSE OF THIS ACTION
It is important that I stress at the start of this judgment that neither Lord Mandelson, nor Mr Deripaska, nor any of the other persons mentioned above, are claimants in this action. The only persons mentioned who have given evidence, apart from Mr Rothschild himself, are Mr Munk and Mr Taylor (and the Article does not refer to Mr Taylor). Nothing in this judgment should be taken as a criticism by me of anyone who is not a party to the action. That would not be fair, because no one other than Mr Rothschild and ANL has been represented in court, or has made any representations to me about the matters in question.
Mr Rothschild sues for libel on the whole Article. But the Article includes much that does not relate to himself.
A claimant who sues in libel must show that words have been published about himself which are defamatory of him. For the purposes of this action, the definition of "defamatory" can be taken to be words that tend to lower the claimant in the estimation of right thinking members of society. It follows that a claimant cannot complain of a publication which is defamatory of someone other than himself. And he cannot complain of publications about himself which are inaccurate, but which are not defamatory (however offended he may be about the inaccuracy). The whole Article is relevant to Mr Rothschild's claim, but most of it is relevant only as the context in which statements about him were made.
Since the Article is primarily about Lord Mandelson, it is particularly important to keep in mind that the claimant is Mr Rothschild, not Lord Mandelson or anyone else. And this action is not about whether the deal referred to cost British jobs, nor about tariffs or EU law. It is a libel action.
There is no dispute in this case that ANL did publish words about Mr Rothschild which are defamatory of him. The main issue between the parties is as to the meaning of the words ANL published, and whether they are true, or substantially true.
In a libel action what a publication means, in particular a long publication, is often a matter of dispute. Meaning is a central issue in most libel actions for two main reasons. First, if the claimant succeeds, the meaning of the words complained of determines how seriously the claimant has been defamed, and so the measure of any damages the claimant may be entitled to. Second, a defendant who is sued for libel has a complete defence if he can prove that the words complained of are substantially true (the defence is known as "justification" or "truth"). To determine whether or not words are true, or substantially true, it is first necessary to determine what those words mean. The law sets out how the...
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The Hon Nathaniel Philip Victor James Rothschild v Associated Newspapers Ltd
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