Defamatory words - Words capable of defamatory meaning
Rothschild v Associated Newspapers Ltd: Queen's Bench Division (Mr Justice Tugendhat): 21 December 2011
The claimant was a member of the well known Rothschild banking family, who was a financier with substantial business interests. He provided financial advice to Russian oligarch OD, he was a member of the International Advisory Board of United Company Rusal PLC (Rusal), the world's largest alumina and aluminium producer, and the holder of shares in that company purchased for a sum in excess of $100m.
He was also a director of EN+ Group Ltd, which held substantial interests in a number of Russian metal, mining and energy companies, including a controlling stake in Rusal. Baron Mandelson of Foy was a prominent and very well known Labour politician. He served as a government minister between 2 May 1997 and 23 December 1998. Lord Mandelson was a close and long standing friend of the claimant. They regularly socialised and took holidays together. In August 2004, it was announced that Lord Mandelson had been appointed as the European Commissioner for Trade. As Commissioner, Lord Mandelson was responsible for the European Commission's Directorate-General for Trade. That was the body charged with designing, implementing and communicating European Union trade and commercial policy.
He left his post as Commissioner in October 2008 in order to return to the UK government as Secretary of State for Business Enterprise and Regulatory Reform. The claimant issued proceedings for libel on an article headed 'EXCLUSIVE: Mandelson, an oligarch and a £500m deal' which was published by the defendant in the Daily Mail 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 read: '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 defamatory meaning attributed to the article by the claimant was that there were strong grounds to suspect that he had facilitated the attendance of Lord Mandelson at a meeting between OD and American aluminium executives so that OD could close a £500m deal between Alcoa and Rusal by securing corrupt and improper disclosures and commitments concerning EU aluminium tariffs from Lord Mandelson.
The claimant applied to strike out the defences of justification and honest comment pursuant to civil procedure rule Pt 3.4(2)(b) and/or Pt 24. He further applied to vary the mode of trial to judge alone. The defendant applied to amend its defence, so as substantially to re-cast its defence of justification as well as to delete the plea of honest comment.
The claimant contended that the article contained a single specific allegation, namely one that was tied to Lord Mandelson's alleged attendance at the dinner to close the deal between Alcoa and Rusal. It further contended that even if the article was capable of bearing the proposed amended meanings, the particulars pleaded gave the defendant no real prospect of success in proving those meanings to be true.
The defendant submitted that the article contained a general allegation, or more than one allegation where there was a common string. It further submitted that although it could not justify the allegation that Lord Mandelson's trip to Moscow was for him to attend at the dinner to close the deal between Alcoa and Rusal, it could justify the general allegation, or the additional allegation that it had a common string.
The court ruled: In light of established authority it was clear that sometimes the publication complained of by the claimant would contain a single allegation, or a general allegation. However, in many cases, particularly where the complaint related to a book or newspaper article or a television programme, the allegations against the claimant might be numerous, and in those cases it would often be important to determine whether the allegations were separate or distinct or whether they conveyed a common string (see  of the judgment).
In the instant case, the defendant had been correct to submit that the article did include, as a significant theme, wider allegations about the inappropriateness of Lord Mandelson's relationship with OD and the claimant's facilitating role. It was not confined to the Alcoa dinner. The article was capable of bearing the defendant's amended meaning (see - of the judgment). Accordingly, the defendant would be permitted to amend its defence in the form proposed (see ,  of the judgment). Jeynes v News Magazines Ltd  All ER (D) 285 (Jan) considered.
The presumption was in favour of trial by judge alone (see  of the judgment). The claimant was not Lord Mandelson and his conduct did not involve any issue of public policy. Neither party was a public authority or arm of the state. Although it was not a case involving prolonged examination of documents, the case did require an understanding of matters of background which were of some complexity. A jury trial had to proceed at a pace of the slowest.
It could be assumed that a judge would either know, or quickly come to understand, the circumstances that formed the background of the events in question. Further, there was the advantage which always accrued from trial by judge alone in that the judge could determine the actual meaning of the words complained of by way of the trial of a preliminary issue, with all the potential benefits in time and costs saved that might follow (see - of the judgment). Accordingly, the mode of trial would be altered to be by judge alone (see  of the judgment). Thornton v Telegraph Media Group Ltd  All ER (D) 243 (Jul) considered.
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.