Walter Tzvi Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point SA
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 08 July 2022 |
| Neutral Citation | [2022] EWHC 1763 (QB) |
| Docket Number | Case No: QB-2019-002482 |
| Court | Queen's Bench Division |
[2022] EWHC 1763 (QB)
THE HONOURABLE Mrs Justice Collins Rice
Case No: QB-2019-002482
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Sherborne & Mr Ben Hamer (instructed by Rechtschaffen Law) for the Claimant/Respondent
Mr Jonathan Price (instructed by Ince Gordon Dadds LLP) for the Defendants/Applicants
Hearing date: 9 th June 2022
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.
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 8 July 2022
Introduction
The Claimant, Mr Soriano, is a British-Israeli businessman, a British citizen domiciled in England. He says the preponderance of his assets, business and investments are here.
Le Point is a weekly French-language current affairs magazine, published in Paris and online by the First Defendant, ‘SEBDO’, a French company. The Second Defendant, M Leplongeon, is a French journalist employed by SEBDO. The Defendants are domiciled in France.
Mr Soriano brings a libel action complaining of an article written by M Leplongeon and published (in French) in the online edition of Le Point on 21 st June 2019. After a preliminary issues trial in November 2020, Nicol J ruled that the correct English translation, and natural and ordinary meaning, of the words complained of in that article, in so far as it relates to Mr Soriano, is:
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.
This, however, is the Defendants' application for a terminating ruling. They say this case should go no further, because of the unsatisfactory state of, and prospects for, the Claimant's pleadings and evidence on the issue of ‘serious harm’.
Legal Framework
The applicable legal framework is not materially disputed.
(i) Serious Harm
By section 1(1) of the Defamation Act 2013:
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
This is a distinct factor for libel claimants to establish, additional to the common law requirement to demonstrate the inherently defamatory tendency of a publication. It focuses on the actual impact of that publication, not just the meaning of the words.
The leading authority on section 1(1) is the decision of the Supreme Court in Lachaux v Independent Print Ltd [2019] 3 WLR 253. The ‘harm’ of defamation is the reputational damage caused in the mind of publishees, rather than any action they may take as a result. Nevertheless the existence, and seriousness, of the harm are factual questions, and facts must be established.
The relevant facts may be established by evidencing specific instances of serious consequences inflicted on a claimant as a result of the reputational harm. But they do not always have to be. Particularly where a general readership rather than identified publishees are involved, the test may also be satisfied by general inferences of fact, drawn from a combination of the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. Relevant factors may then include: the scale of publication within the jurisdiction; whether the statements have come to the attention of at least one identifiable person in the UK who knew the claimant; whether they were likely to have come to the attention of others who either knew him or would come to know him in the future; and the gravity of the allegations themselves.
Aspects of the inferential process have been explored in more detail in other leading cases. The well-established ‘grapevine’ or ‘percolation’ tendencies ( Slipper v BBC [1991] 1 QB 283; Cairns v Modi [2013] 1 WLR 1015) of defamatory publications, particularly online and through social media, may in an appropriate case be factored into an inference about scale of publication. Allowance may be made for the inherent difficulties of identifying otherwise unknown publishees who thought less well of a claimant, since they are unlikely to identify themselves and share that with him. And the likely identity, as well as the numbers, of at least some publishees may be relevant to the assessment of harm, for example where some may be particularly positioned to lose confidence in a claimant and take adverse action as a result.
Section 1(1) uses the language of causation prominently ( caused or is likely to cause). The ‘serious harm’ component of libel therefore contains an important causation element. The starting point, as with any other tort, is that an individual defendant is responsible only for harm to the claimant's reputation caused by its own publication — that is, the effect of the specific statement complained of in the minds of the readership of that statement. A claimant therefore has to establish a causal link between the item he sues on and serious harm to his reputation, actual or likely.
But at the same time, if a causal link is established, including inferentially, it is not possible for a defendant to diminish the seriousness of the harm (or the magnitude of the damage) caused simply by pointing to the publication of the same or similar allegations by different publishers or in different publications and claiming only a marginal exacerbation. This is the so-called ‘rule in Dingle’, the logic of which is to save claimants from falling between multiple stools, by stopping publishers blaming each other, or other publications, for the extent of the cumulative harm of their publications and so making it impossible in practice for the s.1(1) test to be established against any of them. It is a pragmatic solution to a problem of proving incremental degree, the fullest modern statement of which is found in Wright v McCormack [2021] EWHC 2671 in paragraphs 149 to 168.
The rule in Dingle has to be borne in mind in approaching the general inferential exercise of establishing causation of serious harm. If, however, a claimant seeks to meet the s.1 test by ascribing specific consequences to a particular publication, as evidence of serious harm caused, then those consequences must be ascribed in full to the effects of reading that publication alone (see Wright v McCormack at paragraph 163).
(ii) Terminating Rulings
The Defendants' application is brought for strike-out of pleadings or summary judgment in the alternative.
By Civil Procedure Rule 3.4(2):
The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
A court will strike out a claim under the first subparagraph if it is ‘certain’ that it is bound to fail, for example because pleadings set out no coherent statement of facts, or where the facts set out could not, even if true, amount in law to a cause of action. That calls for an analysis of the pleadings without reference to evidence; the primary facts alleged are assumed to be true. It also requires a court to consider whether any defects in the pleadings are capable of being cured by amendment and if so whether an opportunity should be given to do so ( HRH the Duchess of Sussex v Associate Newspapers Ltd [2021] 4 WLR 35 at [11]; Collins Stewart v Financial Times [2005] EMLR 5 at [24]; Richards v Hughes [2004] PKLR 35).
Pleadings may be struck out under the second subparagraph as an abuse of process if their effect is to seek to relitigate matters already determined against a party in the course of litigation.
The Defendants in the present case rely on both subparagraphs: they object that serious harm is inadequately pleaded; and that it is pleaded inconsistently with the determination of meaning by Nicol J.
By Civil Procedure Rule 24.2:
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial.
The proper approach of a court on an application for summary judgment was summarised in Easyair v Opal [2009] EWHC 339 (Ch) at [15] as follows:
i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success;
ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable;
iii) In reaching its conclusion the court must not conduct a ‘mini-trial’;
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual...
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