Sobrinho v Impresa Publishing SA

Under section 1 of the Defamation Act 2013, a claimant must prove on the balance of probabilities that publication has caused, or will probably cause, serious reputational harm. Injury to feelings alone is insufficient. Seriousness may sometimes be inferred from the allegation and scale of publication, but the inquiry is evidential and is not merely a numbers exercise.

A defamation claim is an abuse of process where it serves no legitimate purpose because no real and substantial tort has occurred in the jurisdiction. Vindication must concern the claimant’s reputation within that jurisdiction. The jurisdiction to strike out is exceptional, but may be exercised where prior vindication has removed any tangible advantage that could justify the cost and interference with freedom of expression.

The claimant, an international banker and chairman of an English charity, sued the Portuguese publisher of Expresso over an article alleging grossly incompetent governance of an Angolan bank and grounds for suspecting fraudulent misappropriation. The article had a large Portuguese circulation but a limited readership in England and Wales.

The court tried preliminary issues concerning the article’s natural and ordinary meaning, the serious-harm requirement in section 1 of the Defamation Act 2013, and abuse of process. It also considered an application to add publication of part of the article on an open website. The central questions were whether the English publication had caused or was likely to cause serious reputational harm, and whether continuing the claim served a legitimate purpose.

1. The claim could not proceed. The article bore two defamatory meanings. First, the claimant and the other directors had incompetently allowed loans of about US$5.7 billion without proper procedures, records or collateral, leaving most of the loan portfolio at risk and requiring an Angolan sovereign guarantee. Secondly, there were reasonable grounds to suspect that the claimant had fraudulently misappropriated many millions of dollars through suspect loans and cash withdrawals benefiting himself, his family and connected companies. The article had to be read as a whole through the eyes of the hypothetical reasonable reader. In context, the disputed Portuguese headline meant “pillaging”, rather than a neutral withdrawal.

2. Section 1 of the Defamation Act 2013 substantially changed the law. A claimant must prove on the balance of probabilities that the publication has caused, or will probably cause, serious harm to reputation. Injury to feelings, however grave, is insufficient. Evidence may be called by either party, and the court may draw inferences from the admitted evidence. Serious harm is not simply a question of readership numbers, although the gravity of the allegation and extent of publication remain relevant.

3. The English publication had not caused, and was not likely to cause, serious harm. The whole article probably had only about 55 readers in England and Wales. Adding the readership of the partial open-web publication did not justify an inference of serious harm. The evidence showed concern and upset but no demonstrated serious reputational damage attributable to the English publication. The claimant’s evidence to a Portuguese parliamentary inquiry, and the resulting media coverage available in England, had also restored his reputation.

4. The proceedings were a Jameel abuse of process. A defamation action must serve a legitimate purpose and concern a real and substantial tort in the jurisdiction. Any relevant vindication had to concern the claimant’s English reputation, not the wider Portuguese publication. Because the parliamentary coverage had provided effective vindication and removed the practical value of further proceedings, the claim was not worth the time, effort and expense.

5. Permission to re-amend the particulars to add the open-website publication was refused. That publication had caused no serious harm, and pursuing it would likewise have been an abuse of process. It was unnecessary to decide the limitation issue arising under section 8 of the 2013 Act and rule 17.4 of the Civil Procedure Rules 1998.

• High Court: The court determined the preliminary issues, found no serious harm and held that continuing the claim was an abuse of process.
• Master: By an order dated 10 June 2015, Master McCloud directed the trial of preliminary issues concerning meaning, serious harm and abuse of process.