Terluk v Berezovsky

An interviewee who speaks knowing that the interview will be broadcast in the United Kingdom intends or authorises that republication and may be liable for it. Whether reasonable foreseeability alone suffices where the claim is founded on republication remains open. Justification requires proof of the defamatory imputation, assessed in context, rather than merely proof that reported conversations occurred.

Fresh evidence on a civil appeal is governed by judicial discretion exercised under the overriding objective. Reasonable diligence, probable important influence and apparent credibility remain the relevant considerations. Privilege depends on the objective nature of the occasion. An appellate court should interfere with libel damages only where the award substantially exceeds the most that could reasonably be thought appropriate. Personal injury awards provide a reference point without prescribing a precise correlation.

Boris Berezovsky, the claimant, had obtained political asylum in the United Kingdom. The State-owned Russian Television and Radio Broadcasting Company, the first defendant, broadcast a programme in the United Kingdom concerning the murder of Alexander Litvinenko, an associate of the claimant. The programme included an interview with a disguised speaker called Pyotr. Vladimir Terluk, the second defendant, initially denied being that speaker, but his identity was accepted on appeal. His words alleged that the claimant participated through associates in procuring a false account of an assassination plot to support his asylum claim.

Following a trial without a jury, Eady J rejected justification and awarded £150,000 against both defendants: [2010] EWHC 476 (QB). The broadcaster took no part in the appeal. Terluk challenged defamatory meaning, responsibility for the broadcast republication, the required proof of justification, privilege and damages. He also sought to introduce statements from Andrei Lugovoy, who was wanted in the United Kingdom for Litvinenko’s murder, and other evidence. The court considered the permitted appeal grounds, renewed permission applications and the application to admit fresh evidence.

1. The appeal on the permitted grounds was dismissed. Permission on the remaining grounds and admission of fresh evidence were refused. Read in context, the interviewee’s closing words plainly implicated the claimant in the alleged conspiracy. Elaborate reasons for that obvious meaning were unnecessary. Justification required proof, on the balance of probabilities, of the claimant’s participation through his associates in procuring a false statement. Proof merely that particular meetings and conversations occurred would not establish that imputation (paras 19–21, 56–59, 72).

2. The defendant knew that he was being filmed and recorded and appreciated that the interview would be broadcast in the United Kingdom. By giving the interview with that knowledge, he intended or authorised the republication. Liability therefore followed whichever proposed test applied. The court left open whether reasonable foreseeability alone sufficed where republication constituted the cause of action. Its tentative preference for locating defamation within privacy and freedom of expression, and focusing on knowing or deliberate conduct, was unnecessary to the decision (paras 22–29).

3. Admission of fresh evidence was governed by the discretion in CPR 52.11(2)(b), exercised according to the overriding objective. The criteria in Ladd v Marshall [1954] 1 WLR 1489 remained important considerations, rather than rigid rules constituting the court’s power. They effectively covered the relevant considerations: reasonable diligence, probable important influence on the result and apparent credibility (paras 31–33).

4. The diligence and credibility questions overlapped. If Lugovoy’s account had been genuine, the extensive links between him, the Russian prosecutors and the defendant would have brought it before the trial judge. His earlier accounts contradicted it, while independent police evidence substantially undermined the underlying justification case. His proposed evidence was not sensibly capable of belief. Considering its probable influence was unnecessary, and admission would contradict the overriding objective. The court added that litigant-in-person status did not justify an objectively different approach. Other proposed evidence had already been used or was publicly available before trial. Objections concerning the absence of a caution or lawyer failed because the police had been gathering intelligence, rather than interviewing a suspect (paras 37–55).

5. Privilege depended on the objective nature of the occasion, rather than the defendant’s beliefs. The interview was for a television broadcast, not a criminal investigation. The investigation principle relied on from Evans v London Hospital Medical College therefore did not assist. The objective approach in Adam v Ward applied (paras 60–62).

6. The appellate approach stated in Kiam v MGN applied to the judge’s damages award. Intervention required an award substantially exceeding the most reasonably thought appropriate. John v MGN Ltd did not prescribe a precise correlation with personal injury damages. The judge adequately addressed gravity, the prolonged absence of correction, the attempt to establish truth, distress and vindication. Although high, £150,000 did not justify interference. With no appeal by the broadcaster, the court left unresolved the allocation of damages between defendants having different responsibilities (paras 63–71).

• Court of Appeal (Civil Division): In [2011] EWCA Civ 1534 , the court unanimously dismissed the appeal on the permitted grounds concerning republication and damages. It refused the remaining permission applications and admission of fresh evidence.
• Court of Appeal (Civil Division), earlier applications: On 25 November 2010, permission concerning refusal of an adjournment was granted, but that appeal was dismissed; permission concerning trial without a jury was refused. On 13 December 2010, permission concerning meaning, justification and privilege was refused on paper, permission concerning damages was granted, and further steps were directed concerning republication and fresh evidence. On 23 March 2011, permission concerning republication was granted, and the renewed applications and fresh-evidence application were adjourned for an inter partes hearing with appeal to follow if permission was granted.
• High Court, Queen’s Bench Division: Eady J gave judgment for the claimant on 10 March 2010 after trial without a jury, awarding £150,000 against both defendants: [2010] EWHC 476 (QB) . A default judgment entered against both defendants on 4 December 2008 had been set aside in July 2009 only as against Terluk, leaving damages alone to be assessed against the broadcaster.