Karpov v Browder & Ors

A foreign claimant may establish a real and substantial tort in England where publication creates and damages a reputation, but an imminent or substantial connection with the jurisdiction will ordinarily be required. The requirement is important but subject to the ultimate proportionality assessment under articles 8 and 10 of the Convention.

Defamation proceedings may be struck out as an abuse of process where they no longer serve the legitimate purpose of protecting reputation, having regard to vindication, the likely effect of judgment or injunction, causation, forum, cost and court resources. A justification defence to allegations of torture or murder must plead conduct and a sufficient causal connection. Motive alone, or foreseeable consequences of arrest and imprisonment, is insufficient.

The claimant, a former Russian police investigator, brought defamation proceedings against the defendants concerning publications alleging his involvement in corruption, the Hermitage Fund fraud, and the arrest, torture and death of Sergei Magnitsky.

The defendants applied to strike out or stay the proceedings as an abuse of process. The claimant applied to strike out parts of the justification defence, particularly allegations concerning his responsibility for torture and murder and material relating to an earlier fraud in which he was not alleged to have participated.

The central issues were whether the claimant had a sufficient English reputation or connection, whether the proceedings could achieve worthwhile vindication, the significance of prior Russian proceedings and earlier publications, and whether the pleaded justification was legally and factually adequate.

1. Abuse and proportionality. The claim was struck out as an abuse of process under CPR 3.4(2)(b) and the inherent jurisdiction. The court applied the approach in Re S (a child) (Identification: restriction on publication) [2005] 1 AC 593: neither article 8 nor article 10 has precedence, the specific rights must be intensely compared, the justifications for interference considered, and proportionality applied.
2. Connection with England. A foreign claimant may sometimes establish a sufficient reputation where publication both creates and destroys it, but ordinarily there must be a prior or imminent connection with the jurisdiction. The claimant’s limited visits and continuing publication did not establish a real and substantial tort. His reputation and damage were principally in Russia.
3. Vindication and other publications. Vindication and protection against repetition are legitimate purposes of a libel action. However, the likely inability of an English judgment materially to affect the claimant’s inclusion on the Magnitsky list, the extensive international publications, the limited scope of the pleaded issues, causation difficulties caused by delay, and the cost of a lengthy trial were relevant to abuse. Other publications remained irrelevant to damages under Dingle v Associated Newspapers [1964] AC 371, but could be considered when assessing whether continuation served a legitimate purpose.
4. Foreign proceedings and causation. The Russian proceedings did not create an estoppel. They were relevant because Russia was the natural forum and illustrated the limited English connection. The difficulty of separating actionable from time-barred and foreign publications was material, but was not by itself sufficient to strike out the claim.
5. Justification. A justification plea must identify a defamatory meaning capable of being justified and plead clear, relevant and sufficient particulars directed to the claimant’s conduct. The sting of the allegation must be proved. Motive alone did not justify torture or murder, and the pleaded link between arrest, imprisonment and death was inadequate. The references to the Rengaz fraud were also irrelevant and disproportionate. Parts of the Defence were struck out.