Mohamed Amersi v BBC

A truth defence in libel must plead primary facts capable of establishing the substantial truth of the defamatory meaning. Where the meaning alleges reasonable grounds to suspect corruption, the defence must identify the case the claimant has to meet with the particularity required for a serious allegation, but it need not plead every detail of concealed wrongdoing.

Individual allegations need not establish the defence independently if they are relevant and supportive components of a coherent wider case. A defendant may rely on the claimant’s own pre-action statements where the defence is otherwise sustainable. Material which merely reports a third party’s conclusions, rather than pleading primary facts, is not a proper basis for a truth defence.

The claimant brought a libel claim concerning BBC publications conveying that there were strong grounds to suspect his involvement in corrupt Telia telecommunications deals. The BBC relied principally on a defence of truth and sought permission to amend it. The claimant applied to strike out parts of the defence, while the BBC sought further information about the claimant’s reply.

The applications concerned pleaded allegations about lavish entertainment of politically exposed persons, lobbying, a US$135,000 payment to Aigul Nuriyeva, alleged arrangements intended to incentivise politically exposed persons, and the termination of the claimant’s relationship with Telia.

1. Outcome. The application to amend the defence was granted. The application to strike out was refused except in relation to the pleaded termination of the claimant’s engagement with Telia. The claimant was ordered to provide further information about the terms agreed with Telia for entertainment; the remaining requests were refused or postponed.
2. A truth defence must establish the substantial truth of the defamatory imputation. Here, that required proof of corrupt Telia deals, the claimant’s involvement, and strong grounds to suspect that he knew or ought to have known of the corruption. Where the defence relies on inference, sufficient primary facts capable of proof must be pleaded.
3. The requirement for the particularity of an indictment does not require every detail of alleged corruption to be pleaded, especially where the relevant facts may lie principally within the claimant’s knowledge. The pleading must nevertheless identify the precise nature of the allegation and enable the claimant to know the case to be met. The pleading requirements in serious fraud allegations and truth defences are not materially inconsistent.
4. The pleas concerning lavish entertainment, lobbying, the US$135,000 payment and deals allegedly structured to incentivise politically exposed persons were relevant components of the wider truth defence. They did not each have to establish corruption independently. The BBC could rely on the claimant’s pre-action statements where the pleaded defence was already sustainable.
5. The termination allegation was struck out. Whether Telia ended the relationship because of the Norton Rose Fulbright review relied on the review’s views and Telia’s reaction, rather than primary facts establishing the defamatory meaning. It was also insufficiently connected to the truth defence and likely to generate unnecessary satellite litigation.
6. The request for details of general challenges faced by businesses in Kazakhstan and Uzbekistan was disproportionate and unnecessary. Details of the agreed entertainment terms were reasonably necessary because the claimant had made a positive averment that all entertainment complied with those terms. Requests concerning the US$135,000 payment were premature pending amended statements of case.