Justification – Specific examples of wider allegations which are justified on facts
Rothschild v Associated Newspapers Ltd: Court of Appeal, Civil Division: 19 March 2013
The defendant publisher published an article concerning the claimant in both its printed and online versions of a newspaper (the article). The claimant was a member of a well-known banking family and was himself a banker and businessman. D was an extremely wealthy Russian businessman who controlled a Russian company, R, which was the world's largest producer of alumina and aluminium. The claimant was a member of R's international advisory board. M was the chairman of a very large gold mining company and also a member of R's advisory board.
The claimant, D and M had had business interests in common for some years. P was a well-known politician who, at the relevant time, had been the European Commissioner for Trade. P's role involved the design, implementation and communication of EU trade and commercial policy. The claimant and P were close friends. The article concerned a trip to Russia made by the claimant, P and M. P, who did not have a visitor's visa, had dinner with a Russian government minister which had been arranged by the claimant with D's assistance. At the same restaurant, the claimant, D and M attended another dinner with executives of R and an American aluminium production company, A. A multi-million pound deal had earlier been concluded between R and A. That night, the claimant, D, P and M flew to Siberia on D's private jet and stayed at D's chalet for two nights (the Siberia trip).
While there, the party visited an aluminium smelter and foil plant. P returned to Brussels on the claimant's private jet. The article did not reference the Siberia trip but did reference the Moscow dinner. The claimant issued proceedings seeking damages for libel. The meaning which the judge found the article to bear, which both referred to the claimant and was defamatory of him was: (i) that the claimant had flown P to Moscow in his private jet when he had no official reason to go there and where they were to attend a dinner held for the purpose of closing the deal between R and A in circumstances where the claimant had, or ought to have, foreseen that (a) it would bring P's public offices and personal integrity into disrepute and expose him to accusations of conflict of interests, and (b) it would give rise to reasonable grounds for suspecting that the claimant had acted as he had so that P would engage in improper discussion with the representatives of R and A regarding EU tariffs on aluminium imports into the EU (the first meaning); and (ii) that the incident was an example of how the claimant had sought to impress and keep D close to him (the second meaning).
In establishing that meaning, the judge accepted that the words complained of had included a general allegation that the claimant's alleged conduct in relation to the dinner in Moscow was an example of how the claimant had acted to impress D. The judge decided that the defence of justification had been met as the defendant had established that the words complained of had been substantially true in the meaning which he had found them to bear. Accordingly, the claim was dismissed. The claimant appealed.
It was common ground that P had neither attended that dinner nor discussed EU tariffs on aluminium nor assisted with the deal, but that he had looked in to say hello to D. Consequently, the first meaning attributed by the judge to the words complained of was false and could not be justified as a self-standing allegation. Therefore, the justification defence rested on the second meaning. The claimant contended that there was a mismatch between the meaning found by the judge, which related to a specific incident, and the basis on which he had found justification, which had related to a general charge. The claimant submitted that the judge's meaning included the formulation set out in the second meaning and that that was not to be treated as a free-standing meaning.
However, if it was so to be treated, the second meaning was not defamatory at all. Insofar as the second meaning was held to bear any defamatory sting, it paled into insignificance beside the gravity of the article's essential accusation. That had been understated by the judge at part (ii) of the first meaning; its true meaning had been that the claimant had 'rushed' P to a dinner meeting in Moscow at which discussions were to take place to conclude a deal for the sale of aluminium plants; and he had done so in order to provide 'improper reassurance' about the future of EU tariffs on imports of aluminium. Such criticism of the claimant as the second meaning contained fell so far short in gravity of that essential accusation that it could not substantially justify the sting of that charge. The appeal would be dismissed.
(1) On the facts, the judge had correctly pitched the sting of the Moscow dinner. The language of the article was the language of suspicion, albeit very strong suspicion, but no more. The judge had clearly been entitled to conclude as he had at part (ii) of the first meaning (see ,  of the judgment).
(2) Although the greater part of the article was taken up by the Moscow dinner, it had not been confined to one event. The judge had been right to conclude that it had contained the wider themes to which he had referred. The dinner had been an example of the cross-currents of the relationship between the claimant and P. That was what had been conveyed by the judge in his second meaning. On the face of it, out of context, there was nothing disreputable about seeking to impress and keep D close. However, that ignored the judge's finding that the dinner had been an example of the claimant's facilitating role. The sting of the second meaning was the implicit accusation that the claimant had been prepared to use his long-standing friendship with P as a means by which to impress and keep D close to him, and in doing so he should have foreseen that he would bring P's public offices and personal integrity into disrepute (see , ,  of the judgment). Warren v Random House Group Ltd  2 All ER 245 applied; Grobbelaar v News Group Newspapers Ltd  4 All ER 732 applied; Turcu v News Group Newspapers Ltd  All ER (D) 34 (May) considered.
(3) The claimant's conduct was coloured by the context established in the judge's findings. Inherent in those findings was the conclusion, critical to the justification defence, that in acting as he had, the claimant had known or should have foreseen that he would expose P to suspicion or accusations of conflict of interest and improper discussions – suspicions or accusations which in fact eventuated. The judge's plain finding that the claimant had known or should have known that that would happen was no more fragile than any of his other conclusions. That was the sting of the Siberia trip; the sting of the proved instance of the general charge.
However, it was also, in essence, the sting of the published, unproved instance – the Moscow dinner. Part (ii) of the second meaning, which had correctly pitched the dinner sting, demonstrated as much. Once the proved instance of the general charge – the Siberia trip – was understood against the whole background of the evidence, the claimant had had no more reputation to lose by the false tale of the Moscow dinner (see ,  of the judgment). Berezovsky v Forbes Inc  All ER (D) 452 (Jul) applied. Decision of Tugendhat J  All ER (D) 104 (Feb) affirmed in part.
James Price 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.