The Hon Nathaniel Philip Victor James Rothschild v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice McCombe,Mr Justice Eady |
| Judgment Date | 19 March 2013 |
| Neutral Citation | [2013] EWCA Civ 197 |
| Docket Number | Case No: A2/2012/0631 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2013 |
[2013] EWCA Civ 197
Lord Justice Laws
Lord Justice McCombe
Mr Justice Eady
Case No: A2/2012/0631
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Honourable Mr Justice Tugendhat
Insert Lower Court NC Number Here
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Price QC and Mr Justin Rushbrooke (instructed by Schillings Solicitors) for the Appellant
Mr Andrew Caldecott QC and Mr David Glen (instructed by Reynolds Porter Chamberlain) for the Respondent
Hearing dates: 13 December 2012
INTRODUCTION
This is an appeal, with permission granted by myself on 20 April 2012, against the judgment of Tugendhat J ([2012] EWHC 177) handed down on 10 February 2012. The action was a claim for damages for libel. After a four day trial Tugendhat J gave judgment for the defendants, Associated Newspapers Ltd (ANL). He upheld a defence of justification which (in its final form) had been added by amendment after a vigorous interlocutory contest. The judge introduced the case thus:
"… Mr Rothschild sues… 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 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'".
It is convenient at the outset to identify two general issues, though they will need a good deal of refinement. The first is whether in its true meaning the defamatory material in the article was essentially concerned only with the single specific incident which occupied most of the text, or whether it distinctly included a wider or more general defamatory charge of whose sting the single incident was no more than an example. If the former, the plea of justification should have failed: it is common ground that the article's description of the single incident was false in critical respects. The second broad issue is whether, assuming the article includes a more general libel, proof of its truth will justify the whole. It may only do so if the defamatory sting of the wider charge is as grave as that of the specific charge, and the latter is properly seen as no more than an example of the former. I shall address the law as fully as the case requires in due course.
DRAMATIS PERSONAE
The judge gave thumbnail sketches (judgment, paragraphs 3 — 7) of the individuals involved in the events behind the article sued on. Mr Rothschild, the claimant/appellant, is a member of the well known banking family and himself a banker and businessman. Amongst other things he provides, and in 2005 provided, financial advice to Mr Deripaska, of whom more directly. Mr Rothschild is a member of the International Advisory Board of a Russian company to which I will refer as Rusal. Rusal is the world's largest producer of alumina and aluminium. It is controlled by Mr Deripaska, who also controls other very substantial Russian businesses. He is extremely wealthy; and is what is often referred to as a "Russian oligarch". Mr Munk is chairman of a very large gold mining company. Since 2006 he, Mr Deripaska and Mr Rothschild have had business interests in common, including the exploitation of mines in Tajikistan and Kyrgyzstan and the acquisition of a Russian gold production company, Polymetal. Lord Mandelson is the well known Labour politician. He and Mr Rothschild have been close friends for many years. Lord Mandelson has at various times served as a government minister. He was European Commissioner for Trade between 22 November 2004 and 3 October 2008. He was in post in that office at the time of the events material to this case. It is useful to set out the judge's account of the Trade Commissioner's responsibilities:
"7. 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)."
The judge was at pains to stress (paragraph 10) that neither Lord Mandelson nor Mr Deripaska (nor others involved in the story, save of course Mr Rothschild) was a claimant. "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…" The judge was plainly right to say so. But the narrative of the case, founded on the evidence accepted by the judge, must inevitably throw light on the conduct and character of participants in the relevant events.
OUTLINE FACTS
I will have to revisit some of the detail, but what follows will suffice to introduce the case.
The setting for the article in the Daily Mail was a trip to Russia at the end of January 2005. On Sunday 30 January Mr Rothschild, Lord Mandelson, Mr Munk and a Mr Taylor flew from Switzerland to Moscow, arriving in the evening. Lord Mandelson, who had no visa to visit Russia, had dinner with a Russian government minister: a dinner arranged by Mr Rothschild with the assistance of Mr Deripaska or his office. Mr Rothschild and Mr Munk attended another dinner at the same restaurant, with Mr Deripaska and executives of Rusal and also of Alcoa, an American aluminium producer. A multimillion pound deal — referred to as "the £500m deal" — had earlier been concluded between Rusal and Alcoa for the sale of Russian aluminium plants to Alcoa. Although Lord Mandelson looked in on the Alcoa dinner before the Russian minister arrived to say hello to Mr Deripaska, it was common ground at the trial that he did not attend the dinner itself and did not discuss EU tariffs on aluminium or assist with the £500m deal.
That night, Sunday 30 January 2005, Mr Rothschild, Lord Mandelson, Mr Munk, Mr Taylor and Mr Deripaska all flew to Siberia in Mr Deripaska's private jet, leaving Moscow at about midnight. Mr Rothschild's own plane went there too. The party stayed in Mr Deripaska's chalet, spending the Monday night there. They accompanied Mr Deripaska on a visit to an aluminium smelter and foil plant. On the Tuesday morning Lord Mandelson returned to Brussels on Mr Rothschild's plane: he had to get up at 3 am to travel 150 kilometres to the airport. The others went on to Tajikistan and Kyrgyzstan, to discuss projects for various joint ventures.
As I will show, the trip to Siberia is a crucial element in the case: ANL's defence of justification depends in large measure on what the court makes of it.
THE MEANING OF THE ARTICLE ATTRIBUTED BY THE JUDGE
The Daily Mail article complained of is very long. The judge set out much the greater part of it at paragraph 22 of his judgment, and I shall have to return to certain passages. Mr Price QC for the appellant referred to the text in order to show that its whole content was effectively concerned with the Alcoa dinner. At paragraph 29 the judge set out the meaning which he found the article to bear:
"29. The meaning which I find the Article to bear, which both refers to Mr Rothschild and is defamatory of him, is as follows:
(a) Mr Rothschild flew Lord Mandelson (at that time the EU Trade Commissioner) in his private jet to Moscow in January 2005 when he had no official reason to go there, and where, unknown to EU officials, he and Mr Rothschild were to attend a business dinner held for the purpose of closing a multimillion pound deal ('the Alcoa deal') attended by representatives of Rusal and the American aluminium producer Alcoa, and by a gold magnate Mr Munk (another member of the advisory board of Rusal) ('the Alcoa dinner'), in circumstances in which he (Mr Rothschild) must or ought to have foreseen that this would (as in fact it did):
(1) bring Lord Mandelson's public offices and personal integrity into disrepute, and expose him to accusations of conflict between his duties as EU Trade Commissioner and his private interest in the enjoyment of private jets and other luxuries, and thus in pleasing those from whom he accepted such generous hospitality: and
(2) give rise to reasonable grounds for suspecting that Mr Rothschild had done this so that Lord Mandelson would engage, and that Lord Mandelson had engaged, in improper discussion with the representatives of Rusal and Alcoa about tariffs on aluminium imports from Russia into the EU, and thereby shown to Rusal and Alcoa that he was well disposed towards, and thus assisted in the closure of, a deal between them for the sale of two of Mr Deripaska's Russian based Rusal factories to Alcoa.
(b) This incident is an example of how Mr Rothschild sought to impress and keep close to him Mr Deripaska, the billionaire businessman who controlled the Russian aluminium producer Rusal, of whose advisory board Mr Rothschild is a member."
I should also set out paragraph 30:
"30. In reaching my conclusion on meaning, I have...
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