A2/00/3743

Neutral Citation Number: [2001] EWCA Civ 409
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Eady)
                            Royal Courts of Justice
Tuesday, 6th March 2001
B e f o r e :

LORD JUSTICE SEDLEY

LADY JUSTICE HALE 
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BORIS BEREZOVSKY

‑ v ‑

(1) JAMES W MICHAELS
(2) FORBES INC

and

NIKOLAI GLOUCHKOV

‑v‑

(1) JAMES W MICHAELS
(2) FORBES INC
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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0171‑421 4040
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MISS H. ROGERS and MISS S. MANSOORI (instructed by Messrs Biddle, London, EC2) appeared on behalf of the Applicants/Defendants.
MR. D. BROWNE Q.C. (instructed by Messrs Carter‑Ruck & Partners, London, EC4) appeared on behalf of the Claimants.
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J U D G M E N T 
1.	LORD JUSTICE SEDLEY: This is a pair of libel actions, brought in the one instance by a wealthy businessman and former politician, Mr. Berezovsky, and in the other by the former deputy managing director of the Russian airline Aeroflot, Mr. Glouchkov, in each case against Forbes magazine, an American publication, and its editor, for libel committed in a hard hitting article published in 1996.
2.	Before Eady J on 10th November 2000, each of the claimants sought rulings on the Lucas‑Box meanings pleaded by the defendants. They sought to strike out some of the particulars of justification and also sought the disclosure and inspection of some tapes held by the defendants. The defendants for their part sought security for costs. Little of that has now reached this court. The proposed appeal concerns Eady J's decision to strike out some of the pleaded Lucas‑Box meanings in each of the actions, but for present purposes it is in the Berezovsky action that the issues arise. In the meantime, the question of forum has been to their Lordships' House, where by a majority their Lordships declined to strike out the actions on the ground that they should have been brought, as the defendants claimed, in the United States or nowhere.
3.	The Lucas‑Box meanings are set out in detail by the judge at page 5 of his full and lucid judgment. In summary, they are that the two claimants are or, less vulnerably, that there are reasonable grounds to believe that they are, in Berezovsky's case a corrupt businessman, willing to use violence, involved with criminal gangs which in recent years have dominated the car industry, and specifically that he asked a general to kill a named competitor and was suspected of involvement in the murder of Vladislav Listiev, a Russian broadcaster and producer who had made the exposure of organized crime his business; in Mr Glouchkov's case, that he was or was reasonably believed to be a corrupt executive, particularly in relation to the car industry, and an associate of Berezovsky.
4.	Of the defence based upon reasonable grounds for belief the judge made this comment:
“It is well known that this formula appears regularly in defences put forward by media defendants and sometimes as a somewhat forlorn device intended to help them out of the difficulty that they have made allegations they cannot prove. On other occasions, however, the phrase can genuinely reflect the sting of the published allegations.”
5.	The judge reminded himself, uncontroversially I think, that he was concerned only to strike out pleaded meanings which the words could not sensibly bear in the eyes of the readership of Forbes magazine; that is chiefly, say the defendants, American business people. Mr Geoffrey Robertson QC for Forbes went on before the judge to argue that educated Americans know about the Sullivan defence, and therefore know that much of what they read about public figures may well be false but, because it is published without malice, not actionable. Mr Robertson also submitted, in the light of the Strasbourg case, Bladet Tromso & Stensaas v Norway [2000] 29 EHRR 125, that a degree of exaggeration is itself protected under the Convention. This much Eady J took to be consonant, so far as English law was concerned, with the defence of fair comment, but not to have anything to do with the right approach to the ascertainment of meaning. He remarked at page 13 of the judgment:
“I should resist any temptation to become unduly intoxicated by the heady atmosphere engendered by the Human Rights Act. I ask myself to what extent, if any, English law fails to accommodate the policy considerations expounded in the Strasbourg jurisprudence. Having thought about it, I am not persuaded that there would be any incompatibility between it and the well known tests that an English judge has hitherto been required to apply on applications of this kind.”
6.	Accordingly, he proceeded to examine the 53 page defence pleading by the criteria familiar to English practitioners.
7.	Mr. Desmond Browne QC for the claimants did not object to the allegations to the extent that they are purportedly factual; that is, to the extent that they asserted criminal activity and so forth. His objection was and is to the fallback allegations that there were reasonable grounds to believe these things or, in the case of the Listiev killing, that Mr. Berezovsky was suspected of it. His objection was also, in the light of the pleaded particulars, to the allegation that Mr Berezovsky had asked a general to kill certain of his business rivals. All of these allegations the judge ordered to be struck out. In short, those relating to reasonable grounds for belief he held to be outside the tenor and content of the article. Its allegations, in other words, were direct allegations of corruption or worse and fell to be justified as such. The allegation about the general was struck out because the article did not actually mention him; but the judge left in the pleading the particulars of justification, for reasons which will in due course be apparent. He refused permission to appeal.
8.	Miss Rogers, who appeared below with Mr. Robertson and appears before us today, submits that the way that the article is framed makes it possible that readers would deduce no more than that the two claimants were suspected, and on tenable grounds, of crime. In relation to the allegation about the murder of Listiev, Keene LJ, on sight of the papers, accepted that this was arguable and gave permission to appeal on this ground, the ground of meaning, alone. Miss Rogers now renews her other grounds. They concern some but by no means all of the passages struck out by Eady J. The application is opposed by Mr. Browne not only on these issues but in relation to the partial grant of leave by Keene LJ. He seeks to have it set aside on the ground that Keene LJ did not have his attention drawn to two recent decisions of this court, to the effect that permission to appeal should be given only exceptionally in relation to rulings on meaning. I will not travel through them. They are set out by him in his skeleton argument and we have looked at them.
9.	For my part, I am not prepared to set aside the partial grant of leave on this ground. Apart from anything else, Keene LJ had before him Eady J's judgment, in which well known dicta of Hirst LJ are cited concerning the nature of the judge's task in ruling on meaning. He also, and in particular, had Eady J's written refusal of permission to appeal with its reference to the Hinduja case. From the former alone, however, it seems to me to follow that permission to appeal will be granted sparingly in relation to such rulings, fact oriented as they generally are. It does not follow for a moment that a ruling of a first instance judge on meaning is unappealable, and Mr. Browne would not seek to put it that high.
10.	Having looked at the case law relied on by Mr. Browne, I do not think that it would have deflected Keene LJ from the partial grant of permission which he gave. For what it is worth, I too would have granted permission as he did. This case is a long way from the sort of case where it is proper for a respondent to seek to set aside a grant of permission to appeal. It requires, on authority, a compelling reason, such as the positive misleading of the court by the applicant for permission. If litigation in this field continues to be conducted as if it were warfare, then this kind of skirmishing will continue to attract a heavy price in costs for clients.
11.	What is perhaps more problematical is the ancillary issue raised by Miss Rogers. This is Keene LJ's limitation of his grant of permission on the first ground (that is the one relating to the striking out of paragraph 5C of the pleading) to the narrow meaning issue, ground 1, excluding ground 2, which is an attempt to deploy the European Convention on Human Rights through the Human Rights Act in support of the argument.
12.	Taking this briefly, it seems to me that if to any extent the Convention is capable of playing a part in the argument, it should not be a priori excluded by a limitation of the grant of leave. I say nothing about the true value of the Convention under this head, but if it is capable of deployment, counsel should not be prevented from deploying it. Accordingly, I would, for my part, enlarge the grant of permission to include this element on the first main head.
13.	Miss Rogers next renews her application for permission to appeal against two other elements struck out by Eady J. One is paragraph 5.48 of her pleading, which sets out over the better part of a page particulars of why the police had grounds to and did suspect Mr. Berezovsky of the Listiev murder. The judge struck out the paragraph for these reasons:
“That again, Mr Browne submits, and I agree with him, offends the principles in Shah to which I have made reference. There is nothing pointing to the claimant's conduct; nor are there reasonable grounds objectively judged. There will have to be a consequential deletion in para 5.46 as well.”
14.	The argument which had been deployed in support of striking out this paragraph was that it offended against the repetition and conduct rules of libel pleading. Miss Rogers first seeks to argue that to strike it out will infringe the defendants' Convention right to a fair trial under Article 6 and a right to freedom of expression under Article 10 if they cannot run this part of their case. I have to say that this much of the argument seems to me at the moment to go nowhere. The entire law of libel in this country represents an endeavour to assure both of those rights, not only to defendants but to their antagonists. The submission so far seems to me to do no more than beg the question which I think is Miss Rogers' next and only real ground of appeal under this head, namely that the substance of the particulars did relate to Mr. Berezovsky's conduct and did not infringe the repetition and conduct rules of libel pleading.
15.	Having read and now heard briefly argued Mr. Browne's case to the contrary, and without reading out the full pleaded paragraph, it is sufficient to say that Miss Rogers' argument in favour of the restoration of this paragraph has a realistic prospect of success. The fact that I do not include in that prospect my own present view of the Convention argument is not a reason for shutting it out if something can be made of it. It is perhaps a reason for using the Convention with care, if at all. For the rest, I would give permission to appeal against this element of the strike‑out as well.
16.	Lastly, Miss Rogers renews the application in relation to paragraph 5.86 (which replicates paragraph 5.76 of the Glouchkov defence). This reads:
“In 1998 Aeroflot decided not to renew any of the facilities with Andava, Grangeland and Forus. This formed part of its attempt to distance itself from companies in which Berezovsky and/or Gloushkov had an interest. Instead, it arranged credit facilities with two Russian banks and transferred its treasury management services to another service provider.”
17.	It goes on to spell out the manner of the dissociation. The judge said of this in his judgment:
“It relies upon matters in the 1998 annual report. Mr Browne argues that those matters are not relevant to justification of any of the meanings pleaded. I agree they should come out. Also, more specifically, the facts postdate the publication of the article. It is thus clear that they cannot constitute reasonable grounds for suspicion, since that is a matter that has to be judged as at the time of publication.”
18.	The ground of appeal on this ruling in section 7 of the notice is that the judge was wrong to strike it out. The meaning that there were reasonable grounds to suspect Mr. Berezovsky of corruption had already been struck out. The only question was whether or not the matters alleged in this paragraph were reasonably capable of supporting the different assertion that Berezovsky was corrupt and/or unscrupulous; that is to say, the meaning in paragraph 5A which was part of the initial pleading. The judge would have found, say the applicants, had he correctly approached the question, that the matters alleged were clearly capable of supporting that meaning.
19.	It is, it seems to me, arguable that if this part of the defence went to anything, it was to the factual assertion of corruption for the reason given, that the allegation of omnibus grounds for belief had by now been struck out. But what, I have to say, surprises me is that it was thought that the facts set out in this paragraph needed to be pleaded at all in this connection. In any other branch of the law they would be regarded as part of a legitimate evidential narrative in support of a separately pleaded allegation. It would feature nowadays in exchanged witness statements so that nobody would be taken by surprise. However, it having been pleaded and struck out, Mr. Browne would be, at trial, in a position to say that it could not be led in evidence. It may therefore be that the defendants need, if they can, to restore this passage to an already dense and circumstantial pleading if they are able to tell their story as they consider it needs to be told. For this rather more pragmatic reason, I would grant permission to appeal on the striking out of that paragraph as well.
20.	Lastly, Mr. Browne has asked us, if this appeal is to go ahead – and it is – to expedite it on the ground that already several years have gone by since the publication. I would do no such thing. There is a queue of litigants, all of whom need their case tried at the earliest available moment. The time involved in this case has been taken up in part with a forum shopping issue, which was not an easy one to resolve and in which the division of opinion in their Lordships' House indicates that there was something to be said on both sides. The rest has been taken up with interlocutory matters which, although Mr. Browne complains of them, he initiated. The result will be that, sooner or later, the case in its finally pleaded form will go to trial. Whether it will be any better or worse than if it had gone to trial as initially formulated, with the possibility of pointing out to the jury, if it were the case, that all kinds of things were pleaded which it had been quite impossible to sustain, is not now worth speculating about. This winding road has been embarked upon and had better be followed to its end.
21.	For those reasons I would grant permission as I have indicated, and would not expedite the appeal.
22.	LADY JUSTICE HALE: I agree.
Order: Permission granted as indicated in the judgment with one‑third of costs; application to strike out refused. Balance of costs to be costs in the appeal. (Order not part of the judgment of the court)