SloutskerOn 16 July, Mr Justice Warby awarded Vladimir Sloutsker, a former Russian senator and President of the Israel Jewish Congress, £110,000 in damages at the conclusion of his long-running libel action against Russian journalist Olga Romanova ([2015] EWHC 2053 (QB)).  A permanent injunction against Ms Romanova was also awarded.

This case is of particular significance because it was brought by a claimant based out of the country but with a substantial reputation in England, against a defendant living in Russia, for allegations published online and originating outside of the jurisdiction of the English courts.

Background

Mr Sloutsker, an international businessman and resident of Israel, was forced to take legal action following the online publication by Ms Romanova of extremely serious and defamatory allegations, namely that he had ordered the fabrication of evidence in the criminal prosecution of her husband, Mr Kozlov, and had put out a contract for his murder to be carried out whilst he was being transferred to prison.

The allegations were published in an online blog written by Ms Romanova on the website of the Moscow-based radio station Echo Moscow and were repeated in two articles on the Russian website gazeta.ru, all of which were published in 15 November 2011.  They were again broadcast on Russian-based radio station Radio Liberty in March 2012.  All remain available online.

Despite some delay in the service process in Russia, the proceedings were brought to Mr Romanova’s attention in October 2013 by a summons from a Moscow court.  The documents reached her, or Mr Kozlov, in Moscow in July 2014.  Ms Romanova instructed UK solicitors and disputed jurisdiction and applied to set aside service supported by witness evidence in September 2014.

Finding that the English Courts had jurisdiction and Ms Romanova would be given a fair opportunity to defend herself, The Judge sought to overcome the inherent but not insuperable difficulties of conducting proceedings in an ostensibly foreign court, by agreeing to extend the timetable to afford Ms Romanova every opportunity to comply.

In early January 2015, Ms Romanova instructed her solicitors to come off the record, although they stayed on as her address for service and forwarded correspondence to her from the court and Mr Sloutsker’s solicitors.   However, between 13 January 2015 and 19 June 2015, Ms Romanova did not in any way engage with the proceedings and did not communicate with the court or the Mr Sloutsker’s solicitors at all.

In the intervening period, The Judge entered judgment in default of Defence in 29 May 2015 and fixed a remedies hearing for 13 July 2015.

On 19 June 2015, Ms Romanova broke her silence by sending a letter to the Court stating that the she could not engage with the proceedings for various reasons, including a limited ability to speak, read and write in English (meaning she had to rely on Mr Kozlov for translations), an impecunious financial position and an inability to obtain pro-bono representation or conduct the litigation in person. She also claimed that she had a meritorious defence, but failed to provide any evidence.

Ms Romanova’s letter was originally not copied to Mr Sloutsker’s solicitors but was provided to them by the Court six days before trial.  Mr Sloutsker subsequently adduced evidence in opposition of her assertions.

The damages hearing took place on 13 July 2015. The Judge heard submissions from Adrienne Page QC of 5RB and evidence from Mr Sloutsker.

Judgment

Regarding the issue of jurisdiction, having already found in his interlocutory judgment that the online publications constituted a “real and substantial tort” in this jurisdiction, The Judge determined that the Courts of England and Wales were “clearly the appropriate place in which to try the claim”.

The Judge assessed Ms Romanova’s letter to be “pleas for clemency” and “not at all persuasive”. He attached real importance to the form of the letter, stating that it made no judicial application (i.e. to adjourn the hearing or set aside the service) and did not carry a statement of truth.  He stressed that he “was not attaching weight to mere formalities… [a statement of truth] makes a witness statement a distinctly different thing from a letter, falsehoods in witness statements carry particular consequences.”

The Judge analysed the assertions made in her letter and concluded that Ms Romanova;s language difficulties did not comprise a significant obstacle, noting that she was an educated woman who was a Professor of Journalism and had “positively asserted an ability to read and write the English language” and, in her own witness statement (in support of her application to set aside service) “indicated a relatively high level of skill in English”.

Dealing with her financial position, the Judge rejected Ms Romanova’s claim that financial limitation had prevented her from accessing justice in his court and preferred the evidence adduced by Mr Sloutsker’s solicitors, namely the fact Ms Romanova lives in a high value home and enjoyed expensive holidays five times a year.  He found this be a better guide to Ms Romanova’s true financial position.

On her claim regarding the merits, the Judge found that the Ms Romanova “has yet put forward cogent material suggesting an arguable defence on the merits”.   In her absence, the Judge tasked himself to consider what the available material suggests as to the merits, concluding that the “the merits are not strong.”  This view was strengthened by new material adduced by the Mr Sloutsker’s solicitors including an interview given by Mr Romanova to Peter Oborne for a Channel 4 documentary entitled “Russia: Vlad’s Army” broadcast on 4 November 2011 – significantly only a day before the publication of the allegations.  In the interview, Ms Romanova gave an account of events which is wholly inconsistent with her allegations in the present matter, naming the Russian security service, the FSB, as acting on the direction of President Putin, and being the originators of the trumped up charges against her husband, and responsible for his consequential imprisonment.  The production of this new evidence made the Judge “considerably more sceptical…of the merits of a defence of truth.”

Having examined each of the points made in her letter, the judge found that he was not persuaded that Ms Romanova had been deprived of a fair opportunity to contest the claim and moved to rule on remedies.

Extent of publication & aggravated damages

The Judge referred to his March interlocutory judgment and confirmed that the online publications “could easily have reached as many as 60,000 readers in this jurisdiction, and the [radio] Programme appears likely to have been heard or read here by several thousand at least”.

This finding was based on the fact that Mr Sloutsker was well-known as a Russian senator and that in 2001 there were nearly 248,000 from countries where Russian is spoken living in the UK.  Given Mr Sloutsker’s strong ties to the Jewish community, particularly in London, and the fact that he is well-known internationally as a successful business man, the Judge was satisfied that he had a “real and substantial reputation in this jurisdiction at the time of first publication, which is likely to have grown since”.

In oral evidence, Mr Sloutsker confirmed his plans to relocate to London in the next couple of years and remarked that the allegations were “serious and harmful” and that he lives “in fear of the danger that at any time they be brought up in the context of my business dealing or will surface so as to cast a shadow over me”.  The Judge deemed this to be a legitimate ground of complaint by way of aggravation of damage.

Assessment

The judge ruled that the appropriate global award of damages to compensate for the injury to reputation, and to feelings, and to ensure adequate vindication of these serious allegations is £110,000.

Injunction

The Judge acceded to Mr Sloutsker’s request for an injunction prohibiting Ms Romanova from further publishing the imputations complained of or similar imputations in this jurisdiction, against “an individual who declares her upmost respect for the English court”.

Comment

The issue of jurisdiction remains at the forefront of libel law, and this judgment confirms the Courts’ willingness to compel publishers of libellous content to this jurisdiction.  In this case, it was the extent of the publication and the significant Russian and Jewish communities in the UK (and Mr Sloutsker’s ties to them) which permitted a claim being brought here.

The size of the award, one of the largest in recent times, demonstrates that the courts are prepared to lead the way in cracking down in libellous material published online, irrespective of the location of first publication, provided that publication can be established here.   In this regard, the courts will treat such publication as seriously as those made in more traditional media.

This is a welcome ruling in the face of efforts being made to prevent foreign claimants from bringing libel claims in the courts of England and Wales.

Christopher Hutchings (partner) and Michael Frost of Hamlins LLP acted for Mr Sloutsker in this case and instructed Adrienne Page QC of 5RB.