Berezovsky & Anor v Forbes Inc & Anor

A judge determining the permissible meanings of an allegedly defamatory publication must ask what a jury could sensibly understand the words to mean. The range should be assessed generously. The Court of Appeal may form its own view where the judge has restricted that range unnecessarily.

Freedom of expression does not entitle a publisher to justify only a lesser version of the defamatory sting. Requiring proof of the essence or substance of the allegation is a proportionate means of protecting reputation under article 10 of the Convention. Section 5 of the Defamation Act 1952 permits the separation of distinct charges, but does not treat lesser and greater meanings of the same words as distinct charges.

The claimants sued the publisher and editor of Forbes magazine over an article which allegedly accused them of grave criminality. The defendants pleaded lesser meanings, including that Mr Berezovsky was merely suspected of involvement in a murder, as well as justification, qualified privilege and section 5 of the Defamation Act 1952.

Eady J held that the pleaded lesser meanings were incapable of being borne by the article and struck out associated parts of the defences. The defendants appealed against the exclusion of the suspicion meaning and two related factual pleadings. The central issues were how a court should identify the range of meanings open to a jury, whether the Human Rights Act 1998 and article 10 altered that exercise, and whether section 5 permitted justification of a lesser meaning of the same words.

1. The appeal was dismissed unanimously. Sedley LJ delivered the judgment of the court, with Aldous LJ and Arden LJ.

2. When determining the legitimate range of meanings, the first-instance judge must form an impression of what a jury could sensibly understand the words to mean. The exercise calls for generosity rather than parsimony. A properly performed assessment will not ordinarily be reconsidered on appeal, because the jury remains the ultimate decision-maker. Where the judge appears to have restricted the available meanings unnecessarily, however, the Court of Appeal may examine the issue and reach its own view.

3. The Human Rights Act 1998 did not permit the court to adjust meaning so that words could bear a construction which no sensible reader could adopt. Article 10 of the Convention protects freedom of expression, but that protection is qualified by the reputation and rights of others. Requiring a publisher to justify the essence, substance or sting of a defamatory allegation was a proportionate restriction directed to protecting people against damaging and unjustified falsehoods. Exaggeration and inadvertent error could be addressed separately through fair comment and qualified privilege, with appropriate weight given to responsible journalism.

4. Section 5 of the Defamation Act 1952 could not be construed as treating lesser and greater meanings of the same words as distinct charges. It permitted disaggregation of genuinely distinct charges. Facts which went only part of the way towards proving the sting might mitigate damages, but did not justify a lesser version of the defamatory charge.

5. The article could not sensibly mean merely that Mr Berezovsky was suspected of responsibility for the murder of Vladislav Listiev. Its thrust was that he was responsible. The suspicion meaning and the pleading supporting it were therefore properly excluded.

6. The pleaded account of Aeroflot's later measures formed part of the defendants' narrative but was irrelevant to justification of the pleaded charge. Its removal did not prevent the defendants from presenting their account at trial. The paragraph was properly struck out.

1. Court of Appeal (Civil Division): The defendants' appeal was dismissed by [2001] EWCA Civ 1251. The exclusion of the lesser suspicion meaning and the related pleadings was upheld.

2. House of Lords: In an earlier jurisdictional stage of the same litigation, the House held by a majority of three to two that England was a permissible forum: [2000] 1 WLR 1004.

3. Queen's Bench Division: Eady J held that the defendants' pleaded lesser meanings were unsustainable and struck out the associated parts of the defences. No citation is stated in the judgment.