Berezovsky v Russian Television & Radio Broadcasting Company & Anor

A court should decline jurisdiction, or otherwise intervene, only where compelling evidence shows that a party cannot have a fair trial or meaningfully advance its case. The party seeking that exceptional relief bears the burden of proving the relevant foreign-law restrictions, their practical consequences, and the defence it wishes to advance. A substantial publication in England of seriously defamatory allegations concerning a person resident here is ordinarily justiciable. It is not excluded merely because the defendant is subject to legal restrictions in another country, or by an unsubstantiated assertion that the claim is disproportionate or amounts to libel tourism.

The claimant brought a libel claim concerning a Russian television broadcast transmitted on a freeview channel available throughout the United Kingdom. The broadcast alleged that he had participated in a criminal conspiracy, procured false evidence and was responsible for the murder of Alexander Litvinenko.

The first defendant applied for the court, as a matter of discretion, to decline jurisdiction. It argued that the interviewee, identified as “Pyotr”, was a Russian state-protected witness and that disclosure which might identify him would expose the defendant to criminal liability under Russian law, making a fair trial impossible. The central issues were whether that protected status and its legal consequences had been established, what defence the defendant wished to advance, and whether the claim was non-justiciable.

1. Application refused. The first defendant had not established that Pyotr was a state-protected person, or that disclosure of his identity would expose it to prosecution under Russian law. The evidence was materially hearsay, lacked confirmation from the relevant Russian authority, and was contradicted by documents identifying the alleged protected person.
2. The burden rested on the defendant because refusal of jurisdiction was exceptional. It had to provide cogent and compelling evidence of the alleged status, the consequences under Russian law, and the defence which it wished to advance. It had not identified whether it intended to rely on justification, privilege, or evidence from Pyotr to establish either defence.
3. Even if a defence of privilege were contemplated, identification of the source would not necessarily be required. The court referred to the principles in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and the possible protection afforded by section 10 of the Contempt of Court Act 1981.
4. The court had jurisdiction over a tort allegedly committed through substantial publication in England. The case fell outside the concern addressed in Jameel (Yousef) v Dow Jones Inc [2005] QB 946. It was neither a claim lacking sufficient value to justify litigation nor “libel tourism”. The claim was therefore permitted to continue, although a further application was not excluded if stronger evidence were produced.