Berezovsky v Russian Television & Radio Broadcasting Company & Anor

In a defamation claim arising from a television broadcast, liability depends on the defamatory imputations for which each defendant is shown to be responsible. A contributor is not automatically liable for the programme’s wider allegations merely because his interview was used to support them. Where joint tortfeasors publish material but their individual responsibility differs, damages may be assessed by reference to the lowest common denominator of their joint responsibility. The court also confirmed that a claimant’s disputed or generally bad reputation does not prevent a defamation claim. Evidence of general bad reputation may be relevant to mitigation, but specific alleged misconduct is inadmissible for that purpose, subject to recognised exceptions such as relevant, unspent criminal convictions.

The claimant sued the Russian Television and Radio Broadcasting Company and Vladimir Terluk over a broadcast alleging that he had fabricated evidence to obtain political asylum, had been involved in the poisoning murder of Alexander Litvinenko, and had threatened the person interviewed as “Pyotr”. Default judgment had earlier been entered against both defendants. Judgment against Mr Terluk was later set aside, while the first defendant did not participate in the trial. The court therefore determined liability and damages against Mr Terluk, and damages against the first defendant. The central issues were the identity and responsibility of “Pyotr”, the scope of each defendant’s publication, the truth of the allegations, and the appropriate damages.

1. Liability. The court found that Mr Terluk was the person interviewed as “Pyotr”. He was responsible for the allegation that the claimant, through associates, had pressured him to give false evidence to support the asylum claim. He was not shown to be responsible for the separate allegations that the claimant was involved in Mr Litvinenko’s murder or had threatened Mr Terluk. The first defendant was responsible for the programme as a whole.
2. Justification. The defence failed. The contemporaneous evidence, particularly the police record of Mr Terluk’s account in 2003, was consistent with the claimant’s witnesses and substantially undermined Mr Terluk’s later version. There was no evidence providing reasonable grounds to suspect the claimant of involvement in Mr Litvinenko’s murder.
3. Reputation and evidence. A claimant does not lose the right to sue because he has a bad or controversial reputation. Under the rule in Scott v Sampson (1882) 8 QBD 491, evidence of general bad reputation may be admitted, subject to proper notice, only in mitigation of damages. Specific acts of misconduct are not admissible for that purpose. A relevant, unspent criminal conviction may be admitted, but the proposed foreign conviction evidence was excluded.
4. Damages. The court considered the competing approaches in Cassell v Broome [1972] AC 1027 and Hayward v Thompson [1982] 1 QB 47. It preferred, provisionally, assessment by reference to the lowest common denominator of the defendants’ responsibility. The approach was also regarded as more compatible with Article 10 of the European Convention on Human Rights. Judgment was entered for the claimant for £150,000.

The judgment itself records earlier procedural steps in the same proceedings:

• High Court (Queen’s Bench Division): default judgment was entered on 4 December 2008.
• High Court (Queen’s Bench Division): judgment against Mr Terluk was set aside in July 2009. The first defendant did not apply to set aside its judgment.
• High Court (Queen’s Bench Division): after a trial in February 2010, judgment was entered for the claimant on the relevant defamatory allegation, with damages assessed at £150,000.