On 2 March 2022, the adjourned hearing of the trial of preliminary issues in the defamation case of Eurasian Natural Resources Corporation Limited (ENRC) v Tom Burgis and HarperCollins Publishers Limited took place. The hearing was listed for half a day: unusually, after closing submissions, Nicklin J announced that rather than reserving judgment, he would give an extempore judgment immediately after the lunch break. That afternoon he ruled that ENRC’s claim must be dismissed with judgment and costs for the defendants.
The claim arose from publication of the book Kleptopia, which includes a report of the suspicious deaths of three men: Andre Bekker, James Bethel and Gerrit Strydom. ENRC claimed that the relevant sections of the book would be understood by readers to mean that the company had had them murdered (or alternatively there were strong grounds to suspect it had had them murdered) in order to protect its business interests, because it wanted to prevent incriminating secrets from being revealed.
A trial of the following preliminary issues was ordered:
(1) Whether the statements complained of referred to ENRC;
(2) The natural and ordinary meaning of the statements complained of;
(3) Whether the statements complained of in any meaning found were defamatory of ENRC;
(4) Whether the statements complained of were or included a statement of fact or opinion.
Andrew Caldecott QC submitted for the defendants that the book could not bear the meaning pleaded. If the words complained of referred to ENRC at all, he said, they meant that ‘the deaths of Andre Bekker, Gerrit Strydom and James Bethel are suspicious and the cause of death in each instance remains open to question, which merits further investigation’.
But primarily, he submitted, the suggestion that an intermediate group holding company based in London would be understood by any ordinary reasonable reader to be a suspect for murder or would merit investigation for murder was wholly fanciful.
The relevant legal principles for determining the natural and ordinary meaning of a publication are long established and the judgment conveniently summarised them, noting that in this case, if the claim had not been dismissed, it might have been necessary to adduce evidence to determine whether this corporate claimant had in fact been identified by the allegations or whether it might be another company in the group of companies.
Can a company sue in relation to an allegation of murder? The court was referred to authorities back to 1859 confirming that a company, not being a real person, cannot commit ‘murder or incest or adultery’.
The claimant insisted that this argument was too wide and that the reputation of a company can be injured by imputing to them criminal practices even if they could not be sued in a criminal court.
Nicklin J agreed that the ability of corporations to commit criminal offences, from breaches of health and safety legislation to corporate manslaughter, had expanded significantly, but explained that the real question was what the ‘reasonable reader’ would understand was being asserted by the publication.
He gave the example of an asbestos company being accused of ‘murdering its employees’ as a statement that might not bear the literal meaning that the company was guilty of the criminal offence of murder but in context might bear a meaning defamatory of the company, such as that it had failed to provide adequate protective equipment and had therefore contributed to the deaths of its employees. It all depends, he said, on the precise nature of the allegation and the context in which it appears.
In this case Nicklin J said that the book suggested that ENRC was simply the corporate front for the illegal activities of ‘the Trio’, three businessmen from former Soviet republics who were behind the incorporation of ENRC and the flotation of ‘a chunk’ of it on the London Stock Exchange, and their subsequent decision to take it private again when the Serious Fraud Office started to investigate its affairs.
He was satisfied that the book suggested that the deaths of Bekker, Bethel and Strydom were suspicious, but held that a reader who concluded that the men had been murdered to silence them would be ‘avid for scandal’. In his judgment, the text did not bear the meaning pleaded by ENRC.
He noted that there were other meanings that were defamatory of ENRC, such that it was a corporate front for the Trio’s criminal activities, but that ENRC had made a deliberate decision not to complain of those meanings.
Recent events have highlighted that we need an anti-SLAPP (strategic lawsuit against public participation) law in this jurisdiction to stop claims being brought that are not about reputation but are part of a PR campaign or designed to deter further investigation. We need to redress the balance back in favour of free speech.
Caroline Kean is a partner at Wiggin and acted for Tom Burgis and HarperCollins; Taylor Wessing acted for ENRC
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