Media law

Focusing attention - By Amber Melville-Brown, Finers Stephens Innocent, LondonMax Mosley and Federation Internationale de l'Automobile v Focus Magazin Veriag GmbH Court of Appeal 29 June 2001The Court of Appeal has upheld a decision to dismiss a claim in defamation under section 8 of the Defamation Act 1996, confirming that a defendant may use this procedure immediately after proceedings have been issued - and notably before disclosure - and that the decision may be made on the basis of information before the court at that time.The action arose over the publication in a German language magazine of an interview which the claimants alleged suggested they had 'spent large sums of money for the purpose of destroying' the EEC Competition Commissioner during his investigation of marketing practices in Formula One motor racing.

At first instance, Mr Justice Morland had granted the application to dismiss the action, upheld by the Court of Appeal.

Section 8 of the Act allows the court to dispose summarily of an action where either the claimant's claim or the defendant's defence has no 'realistic prospect of success' and 'there is no reason why it should be tried'.The action arose over an article in a German language magazine with a circulation of about 900,000 and a readership in the UK of about 700, some 400 of which were by subscription.

Its total estimated readership was six million.

The words complained of were within a full-page interview with the then recently retired EEC competition commissioner.

In the interview, headed 'Once I needed police protection', and in response to a question 'Were there any threats against you personally?', was included this response: 'There was once a case when a Belgian steelworks had to close down as a result of one of our decisions, and I had strict police protection.

But the worst one was the proceedings over the marketing of Formula One.

It was very clear that certain people were spending a great deal of money to destroy me.

Fortunately, they did not succeed.'The claimants maintained that although they were not named, the words referred to them, meant that they had threatened the commissioner and had tried to destroy him, and that these allegations were false and defamatory of them.

Although a defamation claimant need not be named in the article complained of, the words must identify him.

Where he is not named the claimants can rely on material extrinsic to the article and known to its readers who would thereby identify him as the person referred to.

However, such a publishee should be identified in the pleadings, unless the extrinsic facts were 'so notorious' that a specific publishee could be inferred.In this case, the claimants did not name any individual publishees, explaining on appeal that at that early stage before disclosure, they did not have access to the defendant's own subscription list which would have given details of at least some of those who had read the magazine in the UK.

To understand how the claimants sought to show that they were the parties referred to, it is necessary to go into detail.The Federation Internationale de l'Automobile (FIA) is the world governing body for motor racing, including the famous Formula One World Championship.

Its president is Max Mosley.

The FIA had, prior to the interview, been under investigation by the department of the EC responsible for enforcing EU Competition laws.

At the material time this was under the control of the commissioner interviewed in Focus magazine.

During the investigation, the FIA issued proceedings in the European Court of Justice, alleging improper disclosure to the press of FIA confidential information by the commissioner's office.

The proceedings were settled, with the commissioner issuing a public statement expressing regret.The claimants in this action argued that this information was 'known to (at least a substantial number of) readers of the words complained of, who would therefore have understood these words to refer to the claimants...' They relied on 26 articles in nine different newspapers in the UK which publicised the dispute between the commissioner and the FIA.Immediately after proceedings had been served the defendants applied for summary dismissal of the claim, arguing that the words were not capable of referring to the claimants.

The 'crucial question' for the first instance judge was 'whether the claimants have no realistic prospect of establishing that some reasonable readers would understand 'certain people' in the words complained of to refer to the claimants.

He concluded they did not.

He accepted that if a person had read those UK articles, had retained that information and had then read the Focus article, 'he could reasonably have reached the conclusion that certain people, including Mr Mosley....

were the subject matter of the defamatory imputation.' But, he went on, 'the existence of such a person is fanciful and not realistic.' He considered that such a person would have to be a German first language speaker, living and/or working in the UK, who would have read the UK articles, retained that information, read the Focus article in German, and then have understood the words 'certain people' to refer to the claimants.

This, he held, was 'so far-fetched as to be fanciful'.The Court of Appeal upheld the first instance decision and did not accept the claimants' contention that the court at that early stage should also have regard to evidence which could reasonably be expected to be available at trial.

In the view of Simon Smith of London firm Schilling & Lom and Partners for the claimants, the decision to dismiss that case without regard to that potential evidence was 'premature'.

However, neither court accepted that, particularly given the fact that no application for disclosure of documents had been made.Kate Macmillian of Peter Carter-Ruck and Partners, acting for the defendants, told the Gazette: 'This was a victory for common sense.

The claimants were not able to produce a single person who had read the words complained of in Focus at the time of publication and who had understood them to refer to them.'This case highlights the importance of swift action on both sides.

While a defendant may apply immediately after proceedings have been served for them to be struck out, a claimant seeking to identify specific publishees may make an early application for disclosure of information that would assist in their identification, such as in this case the defendant's subscription list of Focus.

Clients nearly always want their solicitors to be legal crystal ball gazers.

Solicitors are conscious of the overriding objective within the Civil Procedure Rules, and are increasingly focussing their attention on the importance of front-loading litigation.