Berezovsky v Michaels & Anor; Glouchkov v Michaels & Anor

Permission to appeal against a ruling on the meaning of allegedly defamatory words should be granted sparingly because such rulings are generally fact-oriented, but they remain appealable. A respondent seeking to set aside permission must show a compelling reason, such as the applicant having positively misled the court. A potentially arguable Convention point should not be excluded in advance when it is capable of being deployed. Matters pleaded in support of a substantive allegation may constitute an evidential narrative, even if they do not themselves require separate pleading.

Two libel actions were brought against Forbes Inc and its editor concerning an article published in 1996. Before Eady J, the claimants challenged pleaded Lucas-Box meanings and particulars of justification. The judge struck out several pleaded meanings and particulars, including allegations based on reasonable grounds for belief, suspicion of involvement in a murder, and later events concerning Aeroflot.

Keene LJ granted limited permission to appeal on one meaning issue. The defendants renewed applications concerning other pleading matters and sought to rely on the European Convention on Human Rights. The claimants sought to set aside the permission and, if the appeal proceeded, to expedite it. The central issues concerned the scope of permission, the appealability of rulings on meaning, and whether the struck-out pleading was arguable.

1. Disposition. Permission to appeal was granted on the meaning issue concerning the pleaded allegation that Mr Berezovsky was suspected of involvement in the murder of Vladislav Listiev, and on the other specified pleading issues. The application to set aside permission was refused. The appeal was not expedited.
2. Rulings on the meaning of allegedly defamatory words are usually fact-oriented. Permission to appeal should therefore be granted sparingly. That principle does not make such rulings unappealable. The present case was far removed from one in which it would be proper to set aside permission.
3. A grant of permission should be set aside only for a compelling reason, such as the applicant positively misleading the court. No such reason was shown. The fact that recent authorities had not been drawn to Keene LJ’s attention did not justify setting aside permission.
4. The defendants’ Convention argument under Articles 6 and 10 should not be excluded at the permission stage if the Convention was capable of being deployed. The court expressed no concluded view on the argument’s value and indicated that it should be used with care.
5. The challenge to the particulars concerning police suspicion of the Listiev murder had a realistic prospect of success because the pleaded matters arguably related to the claimant’s conduct and the repetition and conduct rules. The Convention argument itself did not presently assist the defendants.
6. The particulars concerning Aeroflot’s later withdrawal of facilities were arguably relevant to the separately pleaded allegation of actual corruption. Such matters could form part of a legitimate evidential narrative and need not necessarily be pleaded as an independent meaning or ground of justification.
7. The request for expedition was refused. One-third of the costs of the permission application was awarded, with the balance of costs in the appeal.

• High Court of Justice, Queen’s Bench Division: Eady J, on 10 November 2000, struck out specified Lucas-Box meanings and particulars of justification and refused permission to appeal.
• Court of Appeal (Civil Division): Permission granted on the indicated issues; the application to set aside permission and the request for expedition were refused.