High Court strike out high profile defamation action

Karpov v Browder and others [2013] EWHC 3071 (QB) 14 October 2013

The High Court last month struck out a libel claim relating to the high profile death of Russian auditor Sergei Magnitsky, concluding that the claimant had insufficient links to England and that any vindication would be insignificant given the worldwide denunciation of his conduct.  Mr Magnitsky was investigating a tax fraud against the Russian government when he was murdered in 2009.  The claimant in this case was a Russian resident who brought an action against four defendants campaigning for justice in respect of Mr Magnitsky.  The four defendants broadcast an interview on the BBC and posted an article and videos online on an English-language website, alleging that the claimant was implicated in murder, torture, kidnap and extortion.

The court had to bear in mind the following when coming to a conclusion:

  • Balancing the claimant’s right to respect for his private and family life under Article 8 of the European Convention on Human Rights (ECHR) with the defendants’ right to freedom of expression under Article 10 ECHR;
  • Whether the claimant was defamed as a result of the publications by the defendants;
  • Whether a real and substantial tort was committed in England; and
  • Whether jurisdiction to serve proceedings in England was established as a result of the claimant’s connection with, or reputation in, England.

The case of Jameel v Dow Jones shed some light on the above.  The court in that case confirmed that a claimant cannot instigate proceedings on the basis that it may vindicate him in respect of communications outside England.  If the court decided in this case, therefore, that any damage or vindication in England was negligible, they would be persuaded to strike out the claim if they considered the costs and implications of any trial would be out of proportion to any resultant award.

In respect of the consideration of whether a real and substantial tort was committed in England, the court took into account the fact that the claim had been dismissed in Russia, which was the natural forum for the claim.  Publication in England was limited and not all the parties to the claim were based there.  Additionally, only a minority of the views on the defendants’ relevant web pages occurred within England.

The Court concluded that, even though a sufficient connection with a jurisdiction could be established from cases where an offending publication both created and destroyed the claimant’s reputation in that jurisdiction, in this instance a sufficient link was not created and a real, substantial tort was not established.  The claimant was well renowned and had a status to protect in Russia, but he was not well recognised in England.  Regardless of the above, the claimant would be unable to establish meaningful vindication.  Although occurring outside England, the defendants’ campaign led to the widely spread belief that their allegations were well founded.  Any decision in an English court would not go far to disprove those convictions.

For the above reasons, Mr Karpov failed in his attempt to bring a claim in England.  The court in the present case did suggest an occasion on which a person may be successful in instigating a claim, referring to the case of Jameel (Yousef).  In that case, it was contended that, should “an unknown American who was about to visit an English town [be] erroneously described in the town’s local paper as a paedophile”, he ought to be able to bring an action to set the record straight.  Mr Karpov, however, had insufficient links and his claim appeared almost artificial.

Although not yet in force, section 9 of the Defamation Act 2013 will, when it becomes effective, give legislative backing to the notions followed in this case.  This section affirms that England and Wales must be ‘clearly the most appropriate place in which to bring [an] action’ in instances where defamation actions are brought against persons not domiciled either in the UK, an EU member state or a state party to the Lugano Convention.