ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(THE HONOURABLE MR JUSTICE EADY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE RAFFERTY
| Vladimir Terluk
|- and -
Mr Desmond Browne QC and Mr Matthew Nicklin (instructed by Carter Ruck Solicitors) for the Respondent
Hearing dates : 1-3 November 2011
Crown Copyright ©
Mr Alexander Litvinenko
"[O]n 7 October 2006, the Russian journalist Anna Politkovskaya was murdered. She had been the Chechen correspondent of the Novaya Gazeta and was known as a critic of the Chechen war and of Mr Putin's presidency. Reports appeared shortly afterwards to the effect that President Putin had made comments about the murder during a trip to Germany on 10 October. He apparently suggested that it might have been ordered by those living abroad and hiding from Russian justice the motive being to create anti-Russian feelings around the world. Some took this to be a reference to Mr Berezovsky. Without mincing his words, Mr Litvinenko shortly thereafter accused Mr Putin of ordering her murder. This took place at a Politkovskaya commemoration at the Frontline Club in London. Whatever else may be said about him, that no doubt took considerable courage. He first fell ill on 1 November and died a horrible death on 23 November. Afterwards, it was established that he had ingested polonium-210, which is a rare radioactive isotope. It destroyed his bone marrow, other organs and his immune system. Mr Berezovsky had visited him several times in hospital before his death. The funeral took place on 7 December 2006 at Highgate Cemetery."
THE ALLEGED LIBEL
"[Pyotr] And this Sasha said to me, straight off, 'We recognise you. You're a KGB colonel. And I recognise you for sure: you were following me two days ago at Heathrow.' And Boris Berezovsky told me Litvinenko that is that he'd seen me at the Prosecutor General's Office in Russia and you'd been assigned to make an attempt on Berezovsky's life.
[Comment] Pyotr says he tried to explain that no way was he an agent and he was trying to get political asylum himself. Litvinenko replied that it didn't matter. 'Confess that you have to poison Berezovsky with a toxin hidden in a fountain pen and we'll pay you two million pounds.'
You had to confess to murder?
[Pyotr] Yes, yes, to Berezovsky's murder, and they presented it as if I'd decided not to do this and met up with them and told them all about it.
[Comment] Litvinenko immediately explained that this would be a strong argument for the British court. If they're even trying to kill Berezovsky here, that means he's going to be persecuted for his political convictions and there's no way he should be sent back to Russia.
[Pyotr] They needed my confession to help Boris Berezovsky when his case came to court; to help his lawyers make a sensational announcement, you know, and put Boris Berezovsky in a stronger position so they would not extradite him that's what they were basically trying to achieve.
[Comment] But Pyotr refused. Litvinenko proposed another meeting and increased the payment to 5 million. In all, there were more like ten meetings and the pay eventually went up to 40 million. Pyotr recalled one of the final meetings, in particular. They were sitting in a sushi bar, by coincidence, drinking coffee.
[Pyotr] Litvinenko went to get coffee and we were sitting with Dubov. That evening they made up their minds to take action and obviously slipped something into my coffee.
[Comment] 'My head started to spin', Pyotr says, 'I couldn't concentrate.' Litvinenko invited him to meet his lawyer, supposedly for a consultation. The lawyer asked him to explain in detail what Litvinenko was basically proposing. Evidently, they then recorded Pyotr's story on tape.
[Comment] And at the end of August 2003, articles appeared in the British press with the headline, 'Attempt on Berezovsky's life'. The extradition trial was brought to a halt and the oligarch was given political asylum in early September. Soon after, Litvinenko phoned Pyotr and said, 'you've got problems, come to my office.'
[Pyotr] At our meeting in the office, Berezovsky's lawyer told me, 'young man, 70% of Boris Berezovsky's success in obtaining political asylum is down to the information you gave to Alexander Litvinenko.' Then I realised that by somehow putting together all sorts of tapes they could send something somewhere and get someone wanting to look into it.
[Comment] During that meeting, they again proposed to him: tell people you're an FSB agent and you're planning to kill Litvinenko and Dubov. Pyotr refused and said basically, I don't want to have any more meetings with you.
[Pyotr] Then Alexander Litvinenko went crazy. He grabbed the edge of the oak table and in front of everyone literally banged his head on the table several times, shouting: 'Don't you understand that if we don't get this confession, they'll extradite Dubov to Russia and all of us will follow? Alexander Litvinenko rang Berezovsky and started to discuss the situation that had developed and I heard Berezovsky tell him, 'Agree to all his conditions'.
[Comment] But he didn't offer any conditions, he just went home. Then they started making threatening phone calls and watching his flat."
DEFAMATORY MEANING THE JUDGE'S VIEW
"i) the Claimant was a knowing party to a criminal conspiracy to avoid his extradition and obtain political asylum in Britain by procuring a false confession from the so-called Pyotr (first by offering him massive bribes and then, when he refused to comply, by drugging him) that there was an FSB plot to poison the Claimant and hence he would be in mortal danger if returned to Russia; and
ii) the Claimant had been a party to the murder by poisoning of Alexander Litvinenko because the latter had been a witness to the said conspiracy and the procurement of the false confession from Pyotr; alternatively by his conduct the Claimant had given strong cause to suspect that he had been guilty of doing so; and
iii) the Claimant had been a party to threats which made Pyotr fear for his life."
"61. Mr Terluk seems to me to be accusing Mr Berezovsky, albeit indirectly through others, of having offered him massive payments to tell a false story to help him gain refugee status. He also makes the allegation of drugging. But he does not himself make the suggestion that Mr Berezovsky was behind the murder...
62. In those circumstances, Mr Terluk can be fixed with responsibility for the first of the defamatory meanings listed above but not the second.
63. It is also Medvedev, rather than Mr Terluk, who says that ' they started making threatening phone calls and watching his flat'. It is quite possible that the story originates from Mr Terluk, but it is equally possible that it did not. This means that I have to exempt him from liability for the third of the pleaded meanings also. Only the First Defendant can be shown to be responsible for that."
GROUND B DEFAMATORY MEANING
GROUND E REPUBLICATION
"[The defendant] claims, however, that he thought he was being interviewed by someone from the Russian prosecuting authorities rather than by a television interviewer. He denies also having spotted any television camera or recording equipment. That is implausible, not least because of the special lighting arrangements that were made. I received expert evidence from Mr Anderson to the effect that a camera and operator would have been located about six feet behind him and that an obvious microphone would have been placed to his left. There would also have been a powerful light to his left pointing at Mr Medvedev (in fact reflected off his shaven head) and on to the net curtains behind him. This left the back of Pyotr's head in relative shadow."
Little wonder that the judge concluded at paragraph 59 that he had "no doubt that 'Pyotr' was indeed Mr Terluk and that he must have known that he was being filmed and recorded".
GROUND G FRESH EVIDENCE
"Unless it orders otherwise, the appeal court will not receive... (b) evidence which was not before the lower court."
The impact of the CPR on the established approach set out in Ladd v Marshall has been considered in a number of cases. It is clear that the discretion expressed in CPR 52.11(2)(b) has to be exercised in light of the overriding objective of doing justice (see for example Hertfordshire Investments Ltd v Bubb  1 WLR 2318 per Hale LJ as she then was at paragraph 35, Sharab v Al-Sud  EWCA Civ 353 per Richards LJ at paragraph 52). The Ladd v Marshall criteria remain important ("powerful persuasive authority") but do not place the court in a straitjacket (Hamilton v Al-Fayed (No 4)  EMLR 15 per Lord Phillips MR as he then was at paragraph 11). The learning shows, in my judgment, that the Ladd v Marshall criteria are no longer primary rules, effectively constitutive of the court's power to admit fresh evidence; the primary rule is given by the discretion expressed in CPR 52.11(2)(b) coupled with the duty to exercise it in accordance with the overriding objective. However the old criteria effectively occupy the whole field of relevant considerations to which the court must have regard in deciding whether in any given case the discretion should be exercised to admit the proffered evidence. It seems to me with respect that so much was indicated by my Lord the Chancellor (then Vice-Chancellor) in Banks v Cox (17 July 2000, paragraphs 40 41):
"In my view, the principles reflected in the rules in Ladd v Marshall remain relevant to any application for permission to rely on further evidence, not as rules, but as matters which must necessarily be considered in an exercise of the discretion whether or not to permit an appellant to rely on evidence not before the Court below."
Mr Andrei Lugovoy
"Because their interests coincide, Mr Terluk has been assisted both before and during the trial by a team from the Russian prosecutor's office. Four to five people have accompanied him throughout the hearing. One or two of the team have been sitting in the silk's row and asked for the opportunity to cross-examine Mr Berezovsky. I thought that a step too far. But they were able to assist Mr Terluk by presenting him with lists of questions to ask the witnesses in cross-examination. They also prepared applications for him to be allowed to introduce new evidence in the middle of the trial."
With respect to the judge this measured account hardly does justice to the welter of activity pursued by the prosecutors. They were involved in the application in July 2009 to set aside the judgment obtained in default. They assisted in the preparation of the defendant's defence. They sent documents directly to the judge with a request that he keep them to himself. They applied to the judge to have the proceedings stayed pending the conclusion of the criminal proceedings in Russia. Documents disclosed by the defendant included many supplied by the prosecutors' office, which also supplied documents to the defendant. The extent of their participation in the trial itself is graphically demonstrated by substantial passages extracted from the transcript by Mr Browne's junior showing the responses of judge, counsel, and Ms Margiani to their repeated interventions.
"153. Unhappily, Mr Terluk decided to hand over documents disclosed by Mr Berezovsky in these proceedings to the Russian prosecutors in breach of his obligation of confidentiality. This despite being given clear information about this rule in letters dated 28 August and 9 October 2009. Mr Terluk made expressly clear his contempt for the English court when he said at the trial, 'If you don't want me to have them, do not send them to me but, if I have them, I will decide myself what to do with them'. The disclosed documents have been used to further the criminal proceedings in Russia and also to launch civil proceedings there at the suit of Mr Terluk (presumably funded by the Russian government).
154. The civil claim was launched against Mr Berezovsky, Mr Dubov and Mr Goldfarb..."
"to see whether it would be possible to take in unexamined pens and cigarettes and to see if there was some place within the premises where someone posing as a journalist would be able to get sufficiently close to Berezovsky to drip fluid from the pen onto his clothing or shoe and then light a cigarette, blowing smoke in the direction of the liquid" (Litvinenko statement, paragraph 28).
The defendant was telling Mr Litvinenko about an actual plot to murder the claimant.
"asked lots of questions in minute detail about what went on at the hearing [sc. at the Magistrates Court]. He asked about the layout of the building, Berezovsky's security detail, the general security and how members of the public were shown in and out... [He] was asking about how people were searched when they entered, if they used metal detectors, if they checked inside folders and if they examined pens... [H]e had never been tasked or asked to carry out an assassination... [H]e realised that Smirnoff [sic] worked for the Russian Security Services and that he was being used by him..."
It is the claimant's case on the facts that the defendant was instructed to carry out a reconnaissance for a possible assassination attempt, not an actual assassination (see judgment paragraph 65). That is what the defendant described to Mr Litvinenko, on the latter's statement; and it is what the defendant described to DS Rose. The coincidence is stark, as is the contrast between those materials on the one hand and the defendant's justification case together with Mr Lugovoy's new account on the other. DS Rose, who gave evidence before the judge, had not seen Mr Litvinenko's statement (or that of Mr Goldfarb) when he spoke to the defendant (judgment paragraph 68). The defendant asserted before Eady J that the Rose Note was bogus and "probably manufactured by the police" to help the claimant (judgment paragraph 70). The judge concluded (paragraph 158) that it would be "perverse" to hold that DS Rose was lying or had concocted a false record.
"160. The evidence of Mr Litvinenko, Mr Goldfarb, Mr Dubov, Mr Levtov and Mr Menzies [for the claimant] is in all essentials consistent and plausible. I am not only asked to disbelieve Mr Rose, a senior police officer, but also Messrs Levtov and Menzies, who are two experienced practising solicitors. They are officers of the court and appeared to me to be scrupulously careful as to their professional responsibilities. Nor can I see why they would have any motive to mislead the court and put their careers in jeopardy.
165. Mr Terluk did himself no favours in cross-examination. Although articulate and never lost for words, he was truculent and evasive throughout. As often as not, he simply failed to engage with the questions he was being asked and tried to quip his way out of difficulty. This tactic made it very difficult to take what evidence he did give at face value. He tended to dismiss anyone who gave evidence inconsistent with his story as a liar in Mr Berezovsky's pay. He also accused Mr Browne of being a disgrace to his profession and even of 'palming' one of the documents he was passed by Mr Terluk in court. He seemed to be directing his performance more to the team of Russian prosecutors than the court; this plainly was not calculated to boost his credibility."
Other Fresh Evidence
GROUND C PROOF OF JUSTIFICATION
"So far as Mr Terluk is concerned, therefore, the central issue remaining in the case is whether he can prove on the balance of probabilities that Mr Berezovsky, indirectly through his associates, in particular Mr Litvinenko and Mr Goldfarb, attempted to bully and browbeat him into making a false statement to assist in Mr Berezovsky's asylum claim in 2003."
GROUND D PRIVILEGE
GROUND F DAMAGES
"173. First, I have found on the evidence that Mr Terluk is only responsible for what he actually said on the programme... There is no truth in any of the allegations, but I am not persuaded that Mr Terluk (as opposed to RTR) is to be held responsible for publishing them all. He may have been a party to the entirety of the messages proclaimed in the programme: on the other hand, he may have been confined to a subsidiary role.
174. Secondly, the aggravation has been different in the case of each Defendant. In Cassell v Broome  AC 1027, 1063F-H, 1090D-E, it would appear that Lord Hailsham and Lord Reid were of opinion that, in such circumstances, any joint tortfeasor will only be liable for the lowest common denominator (that is to say, only to the limit of their joint responsibility). In Hayward v Thompson  1 QB 47, 62E-G, on the other hand, Lord Denning MR thought this unsatisfactory. He seemed to think that in the case of a joint publication, such as a newspaper article, one should not draw fine distinctions as between one defendant and another. I do not read the judgments of his brethren (Sir George Baker and Sir Stanley Rees) as expressing a view on this point either way. Accordingly, the law in this respect cannot be definitively stated.
175. I have indicated that the words complained of bear each of the Claimant's pleaded meanings and that, in respect of each of those meanings, the allegations are false. Nevertheless, I plan to compensate in respect of only the first of those meanings for the reason that Mr Terluk cannot be shown to have published all the allegations. I propose to ignore individual aggravating factors, as something of a distraction, because I think the lowest common denominator approach is likely to be preferred by a modern appellate court not least because it is more compatible with Article 10 of the European Convention on Human Rights. There would seem to be an inhibiting or 'chilling' effect on freedom of expression in so far as the law may render each individual contributor to an investigative story liable for the words or conduct of other people. In a genuine case of 'joint enterprise', that may be appropriate, but I am not persuaded that this is such a case. Yet I do not believe that for the purposes of this case I need to resolve this dilemma."
"176. What I propose to focus upon is the seriousness of the allegation and the fact that it has gone uncorrected for about three years. The figure selected needs to compensate for distress, as well as the fact that the allegation was calculated to put at risk Mr Berezovsky's refugee status and leave to remain in the United Kingdom. It needs also to serve the purpose of vindication. Obviously, many people have fixed views about Mr Berezovsky and most will not change them as a result of this judgment. He is nevertheless entitled to his remedy as reflecting the court's clear and unequivocal finding, on the evidence, that the relevant allegations are false.
177... I have concluded that there should be judgment for the Claimant and that an appropriate award in respect of these joint tortfeasors is £150,000. It would have been higher if I were also compensating for the equally unfounded allegation that he was responsible for the death of Mr Litvinenko."
Lady Justice Rafferty: