A decision of the Court of Appeal on 15 December 2011 ( EWCA Civ 1534) finally brought to an end one of the most fascinating libel cases in recent years. The case, concerning a Russian State television broadcast on the RTR satellite channel about the murder in November 2006 of Alexander Litvinenko, had all the hallmarks of a cold war thriller.
Boris Berezovsky, represented by Carter-Ruck, won £150,000 libel damages against Vladimir Terluk in February 2010; the appeal, which included an attempt to introduce evidence from Andrei Lugovoy, the man wanted by the British authorities for the murder, failed on every count.
The story began when Mr Berezovsky, a political opponent of the Putin regime in Russia, was granted political asylum in the United Kingdom in September 2003. A man named Vladimir Terluk had mysteriously turned up at hearings in Bow Street Magistrates court in 2003 and had volunteered information to Alexander Litvinenko that suggested to Mr Litvinenko that Mr Berezovsky might be in danger. Mr Terluk said he was from Kazakhstan and that he was seeking asylum in London. Nothing more was heard from Mr Terluk until April 2007, when the Russian State broadcaster RTR broadcast a sensational news piece accusing Mr Berezovsky of Mr Litvinenko’s horrific murder. His motive was said to be that Mr Litvinenko was a witness to a conspiracy in 2003 to avoid Mr Berezovsky’s extradition to Russia and obtain political asylum in the UK by procuring false testimony about an FSB assassination plot from a man the programme makers named “Pyotr”. The story told by “Pyotr” on the programme, though false, made it easy for Mr Berezovsky’s friends who had met him in 2003 to identify him as Vladimir Terluk.
Mr Berezovsky sued RTR and Vladimir Terluk. For months nothing was heard from Mr Terluk who was said to be in hiding in London under the protection of Scotland Yard. RTR tried and failed to get the case struck out on the grounds that Russian law prevented it from defending the case. After the Judge in July 2008 refused its application and ordered RTR to serve a defence, RTR retreated back to Russia and played no further part in the case.
Meanwhile, in March 2008, the Russian Federation General Prosecutors Office, determined to undermine Mr Berezovsky’s asylum status, issued its own criminal charges based on Mr Terluk’s claims, accusing Mr Berezovsky of having exerted psychological pressure on Mr Terluk with the aim of making him provide false testimony about an FSB assassination plot in order to help Mr Berezovsky obtain asylum. Mr Terluk was named the victim in the Russian criminal case. From that moment, the long arm of the Russian State Prosecutors’ Office was visible at every twist and turn in the English court proceedings.
When RTR failed to serve a Defence and with Mr Terluk still having failed to acknowledge the proceedings, Judgment was entered in default. A hearing date was set for March 2009 to have an assessment of damages; a mini-trial in effect. Then, out of the blue, just before the hearing, Mr Terluk turned up at Carter-Ruck’s offices with papers, wishing to set aside the Judgment. He had met with Russian Prosecutors on 27 February 2009; they had offered to help him. The Judge allowed the case to proceed to trial.
In its Judgment, the Court of Appeal described the “welter of activity” pursued by the Russian Prosecutors in the case. They turned up at hearings, provided Mr Terluk with documents, tried to pass papers privately to the Judge and prepared applications for him. Mr Terluk also had help from a Georgian “McKenzie friend”, a woman named Ms Margiani, who valiantly appeared in court with Mr Terluk and made submissions for him, as Mr Terluk himself apparently spoke little English despite having lived in this country since 1999.
At trial in February 2010, the Russian Prosecutors turned up en masse to help Mr Terluk, requested a set of ear-phones to follow the simultaneous translation of the proceedings and at one stage asked to cross-examine Mr Berezovsky. The Judge thought that a step too far.
After two weeks of hearing evidence the Judge found unequivocally in Mr Berezovsky’s favour. He said that there was no evidence before him that Mr Berezovsky had any part in the murder of Mr Litvinenko, and that the central allegation that was directly attributable to Mr Terluk in the programme (the claim that a false confession was procured from Mr Terluk in order for Mr Berezovsky to obtain asylum and avoid extradition) was false. The Judge said the allegation was “calculated to put at risk Mr Berezovsky’s refugee status and leave to remain in the United Kingdom” and awarded Mr Berezovsky £150,000 in damages ( EWHC 476 (QB)).
Mr Terluk appealed on seven grounds, saying the damages were too high and the trial was not fair because it was conducted without a jury and without him having legal representation. Using funding from a Russian organisation called the Moscow Bureau for Human Rights, Mr Terluk found legal representation for his appeal.
He sought to introduce what he claimed to be fresh evidence from Andrei Lugovoy, the man elected to the lower house of the Russian parliament after the British authorities announced in May 2007 that he was wanted to stand trial for the murder of Alexander Litvinenko.
The appeal failed. The Court of Appeal observed that Mr Terluk was “not assisted by his perjured evidence at trial that he was not Pyotr” and found that Mr Lugovoy’s evidence, in which he sought to implicate Mr Berezovsky in the murder was “not sensibly capable of belief”. The Court found that, given Mr Lugovoy’s own contact with the prosecutors in the context of Mr Litvienko’s killing and Mr Terluk’s contact with them in the context of this case, if Mr Lugovoy’s present account were genuine, Mr Terluk would have been armed with it at trial.
The Court refused to interfere with the damages award.
Mr Berezovsky has expressed his hope that justice will one day be done for Mr Litvinenko’s widow Marina and their son Anatoly.