Walter Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point (Sebdo)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill,Mrs Justice Hill DBE |
| Judgment Date | 23 December 2022 |
| Neutral Citation | [2022] EWHC 3370 (KB) |
| Docket Number | Case No: QB-2019-002482 |
| Court | King's Bench Division |
[2022] EWHC 3370 (KB)
Mrs Justice Hill DBE
Case No: QB-2019-002482
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
David Sherborne and Ben Hamer (instructed by Rechtschaffen Law) for the Claimant
Jonathan Price (Ince Gordon Dadds LLP) for the Defendants
Hearing date: 8 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 23/12/2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By two applications dated 14 January 2022 and 26 October 2022 the Claimant seeks specific disclosure from the Defendants.
The Claimant is a British-Israeli businessman, domiciled in England.
The First Defendant is the publisher of Le Point, a weekly French-language political and news magazine. Le Point is published in print and online. The Second Defendant was a journalist employed by the First Defendant.
On 21 June 2019 the First Defendant published an article on the Le Point website about the Claimant which had been written by the Second Defendant, entitled ‘ United States: Israeli agent targeted by Russian interference investigation’ (“the article”).
On 17 July 2019 the Claimant issued this claim for libel arising out of the publication of the article.
The application dated 14 January 2022 seeks an order requiring the Defendants to conduct further searches for documents by reference to specific terms and to conduct various other specific searches. It was supported by a witness statement from the Claimant's solicitor, Shlomo Rechtschaffen (“Rechtschaffen 2”). This was responded to by a witness statement from the Defendant's solicitor, Gareth Jones (“Jones 3”), to which Mr Rechtschaffen replied with a further statement (“Rechtschaffen 4”).
The application dated 26 October 2022 seeks information about those of the First Defendant's subscribers who have accessed the article within England and Wales. This was supported by a bundle of relevant correspondence between the parties.
The procedural history
On 20 November 2020, after a preliminary issue trial Nicol J determined the natural and ordinary meaning of the words complained of in the article, insofar as it relates to the Claimant, as follows:
“The Claimant is a spy or a spook and there are grounds to investigate whether he has directly or indirectly used surveillance, military methods or data interception technology in his work; whether he was involved in the surveillance of police officers investigating President Netanyahu; and whether he was involved in Russia's attempt to interfere in the 2016 election in the USA” (see [2020] EWHC 3121 (QB) at [30]).
On 22 January 2021 the Defendants filed their Defence.
On 24 March 2021 the Claimant filed a Reply.
On 14 October 2021 a Case Management Conference was held at which standard disclosure was ordered. The Defendants have since made standard disclosure.
On 8 July 2022 Collins Rice J dismissed the Defendants' application dated 23 February 2022 for strike out and/or summary judgment. She held that the Claimant's pleaded claim of serious harm was defective in that it was inconsistent with Nicol J's meaning judgment. She permitted the Claimant to amend his Particulars of Claim in respect of the issue of serious harm (see [2022] EWHC 1763 (QB)).
On 27 July 2022, 30 August 2022 and 28 September 2022 the parties filed and served, respectively, Amended Particulars of Claim (“APOC”), an Amended Defence and an Amended Reply.
It is relevant for the purposes of these applications that the Defendants have raised the public interest defence under s.4 of the Defamation Act 2013 (“the 2013 Act”) and denied that publication of the article has caused the Claimant serious harm. The public interest defence is heavily contested, as the Amended Reply at [17] onwards makes clear. Accordingly, the public interest defence and the serious harm element of the Claimant's claim are likely to be the central issues at trial.
The law
Applications for specific disclosure are governed by CPR 31.12, which provides that:
“(1) The court may make an order for specific disclosure or specific inspection.
(2) An order for specific disclosure is an order that a party must do one or more of the following things –
(a) disclose documents or classes of documents specified in the order;
(b) carry out a search to the extent stated in the order;
(c) disclose any documents located as a result of that search
Under Practice Direction 31A, paragraph 5.4:
“In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1. But if the party concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are complied with.
The White Book 2022, paragraph 31.12.2 makes clear that in deciding whether to exercise its discretion to make an order for specific disclosure, the court should have regard to:
(i) whether the party seeking the disclosure has made a prima facie case that the documents sought are relevant to a pleaded issue between the parties (i.e. whether they are likely to support the applicant's case or adversely affect the respondent's case); and
(ii) whether an order is in accordance with the overriding objective and is, in all the circumstances, proportionate.
Under CPR 31.4, the disclosure obligation extends to electronic documents, including emails and other electronic communications and databases pursuant to CPR 31.4.
The public interest defence under s.4 of the 2013 Act was recently considered by the Supreme Court in Serafin v Malkiewicz [2020] 1 WLR 2455 at [52]–[78]. Further, in Hijazi v Yaxley-Lennon [2020] EWHC 3058 at [41], Nicklin J observed that the focus is on the Court coming to “findings of fact about the investigations prior to publication” and on that basis whether the belief in the public interest of the publication “was objectively reasonable”.
In respect of serious harm, Sharp J (as she was then) noted in King v Grundon [2012] EWHC 2719 (QB) at [40] that “ one well-directed arrow [may] hit the bull's eye of reputation” and cause more damage than indiscriminate firing.
The application dated 14 January 2022
The application sought an order covering several items of specific disclosure.
Paragraph 1(a): search terms
Under this paragraph of the draft order the Claimant sought an order requiring that searches be conducted by reference to a series of specified search terms.
Mr Sherborne for the Claimant relied on the Defendants' disclosure statement indicating that they conducted searches for the purposes of standard disclosure using only the keyword ‘Soriano’. He submitted that unsurprisingly this resulted in very limited disclosure. Mr Price for the Defendants argued that his clients had been advised of their disclosure obligations under the CPR and had searched more widely than for material captured by the keyword ‘Soriano’. Mr Sherborne noted that the Defendants has not placed any evidence before the court, for example in Jones 3, about the nature of the searches conducted. He invited me to disregard submissions made about the search process in the absence of any evidence.
All the further search terms in the Claimant's draft order are said to be relevant to the public interest defence, which is one of the two key issues in the case: see [14] above.
Mr Sherborne submitted that the public interest defence is a subtle one, which is intrinsically fact-sensitive. It focusses on what was known by a Defendant prior to publication. Here, it will necessarily focus on the investigation undertaken by the Second Defendant in his role as a journalist at the First Defendant. Evidence obtained in his investigation is likely to be directly relevant to the objective reasonableness of the subjective belief of the Defendants under s.4(1)(b) of the 2013 Act. Proper disclosure of the material held and considered by the Second Defendant up to the point of publication is therefore essential for a fair determination of the s.4 issue.
He alighted on Mr Price's submission to the effect that the Second Defendant had already made disclosure of material that underpinned his belief for the purposes of the public interest defence. Mr Sherborne highlighted that the Claimant is entitled to disclosure which goes to the objective element of the belief test too, and which might show that the subjective belief was not reasonably held.
Mr Price for the Defendants relied on the three elements of the public interest defence as being that (i) the article was on a matter of public interest; (ii) the Second Defendant believed that publishing it was in the public interest; and (iii) the Second Defendant's belief was reasonable in all the circumstances, having regard to such steps as it was reasonable for him to take to verify the allegations. He submitted that it was only the third element to which the disclosure application could sensibly go. It became clear that this was common ground: see [25] above. Mr Price submitted that it remained unclear how it was said that compliance with the order sought would be likely to produce documents which are relevant to that issue. He also opposed the draft order on various practical grounds, as noted below.
The...
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