Terluk v Berezovsky

A speaker who gives an interview in the sure apprehension that it will be broadcast in the jurisdiction intends or authorises the republication and may be liable for its defamatory content. The ordinary meaning of words is assessed in their full context. Words may impute participation in a dishonest scheme even where the claimant is not named in every allegation.

On an appeal, the discretion under Civil Procedure Rules 1998 rule 52.11(2) must be exercised to do justice. The Ladd v Marshall criteria remain important considerations, rather than inflexible conditions. An appellate court will not disturb a libel award unless it substantially exceeds the range a reasonable jury could have regarded as appropriate.

Terluk v Berezovsky was a libel claim arising from a Russian-language television broadcast available in the United Kingdom. The appellant, interviewed under the name Pyotr, alleged that the respondent and his associates had tried to procure a false confession of an assassination plot in order to secure asylum and resist extradition.

Eady J held that the appellant was responsible for the meaning that the respondent was party to that dishonest scheme. He rejected justification and awarded £150,000: [2010] EWHC 476 (QB). The appellant challenged defamatory meaning, liability for republication, the refusal of fresh evidence, justification, privilege and damages.

1. Appeal dismissed. The court dismissed the grounds for which permission had been granted and refused permission on the remaining grounds.
2. The judge was entitled to find that the appellant's words bore the defamatory meaning that the respondent had participated, through associates, in a scheme to obtain a false confession in support of his asylum claim. Read in the context of the entire interview, the appellant's final reference to the respondent directing that the witness's conditions be accepted implicated the respondent in the alleged scheme.
3. The appellant was liable for the broadcast republication. He knew that he was being filmed and recorded for a pre-arranged television interview, and the surrounding facts made it inescapable that he appreciated it would be broadcast in the United Kingdom. On those facts he had intended or authorised republication. The court therefore did not decide whether reasonable foreseeability alone would suffice. Laws LJ nevertheless observed, obiter, that modern defamation law might more appropriately focus on knowing or deliberate action than carelessness.
4. Under Civil Procedure Rules 1998 rule 52.11(2)(b), the appellate discretion to admit fresh evidence is governed by the overriding objective. The criteria in Ladd v Marshall [1954] 1 WLR 1489 remain important considerations. The proposed evidence was not apparently credible and its admission would not serve the interests of justice.
5. The justification ground failed because the defence had to prove the actual defamatory imputation, not merely the appellant's account of conversations with the respondent's associates. The absolute-privilege argument also failed: objectively, the interview was a television interview, not part of a criminal investigation. The damages award was high but did not substantially exceed the range reasonably open to a jury, and was upheld.

• Court of Appeal (Civil Division) Dismissed the appeal on the permitted grounds and refused permission on the renewed grounds: [2011] EWCA Civ 1534.
• High Court of Justice, Queen's Bench Division Eady J gave judgment for the claimant in a libel action and awarded £150,000: [2010] EWHC 476 (QB).