In the case of Mionis v Democratic Press SA  ([2017] EWCA Civ 1194) a businessman and financier who settled a libel claim against a Greek language newspaper with a confidential deal under which the publication promised, among other things, not to publish anything which referred to him or his immediate family has won an injunction intended to enforce the agreement.

The Court of Appeal held that the judge at first instance, Sir David Eady, had erred in concluding that the relevant clause in the settlement agreement was unenforceable because it was too vague and uncertain about the scope of the obligations it imposed, and agreed to grant the injunction Sir David had refused.

Businessman Sabby Mionis, who holds Greek and Israeli citizenship, and was until 2009 the chief executive of CM Advisers Ltd, the management company of CMA Global Hedge, an investment company listed on the London Stock Exchange, had sued Democratic Press SA, its publisher, editor-in-chief, and a journalist over a series of some 18 articles which appeared in the Greek language newspaper Demokratia between October 2012 and May 2013.

They concerned the so-called “Lagarde list” – information passed to the Greek government in 2010 by France’s then Finance Minister, Christine Lagarde, with a view to helping the authorities identify individuals involved in tax evasion, and were published on the front page of the newspaper’s website and most of them also appeared the front page of the hard copy editions.

Mr Mionis claimed the newspaper’s articles formed part of a sophisticated campaign and included “gratuitous and deeply offensive personal attacks” on him.

He sued in London on the publications which took place within the jurisdiction of England and Wales – although the newspaper is not published in hard copy in the UK, the defendants accepted that it might have been read here on the internet by a few people.

Under the settlement, reached a few months later, the defendants agreed to a number of undertakings – they would publish an article, with a photograph of him, the truth of which he would warranted, and would not repeat the offending allegations.

Clause 3.2 stated they they would not publish, in any jurisdiction, any articles or statements which “refer to” Mr Mionis or his “immediate family”.

But Mr Mionis then returned to court, claiming that the defendants had breached the agreement struck in the settlement with two articles, published in January and June 2014, which, he said, clearly referred to him, although he was not named, and applying for an injunction to enforce the terms of the settlement.

Sir David Eady rejected the application ([2014] EWHC 4104 (QB)).

Mr Mionis appealed, and on 31 July 2017 the Court of Appeal – Lady Justice Gloster, Lady Justice Sharp and Lord Justice Lindblom – overturned that decision, and granted the order he sought.

Lady Justice Sharp, with whom the other two judges agreed, rejected the contention put by Mr Mionis that as the newspaper had voluntarily limited its rights to publish to the extent specified in clause 3.2 of
the settlement agreement, it had waived its right to freedom of expression – and that it therefore followed that that article 10 of the European Convention on Human Rights and section 12 of the Human Rights Act 1998 were irrelevant to the issues raised in the appeal, and the issue between the parties is a straightforward one of contractual enforcement.

Section 12 of the 1998 Act explicitly required the court to consider Article 10 before granting relief which might affect the exercise of the right to freedom of expression – and did so regardless of whether that the relevant restriction appeared in a contract between private parties, she said.

The court had a policing jurisdiction to uphold Convention rights from which parties could not derogate. But the fact that the parties had voluntarily entered into an agreement which restricted their Article10 rights could be an important part of the analysis which section 12 required the court to undertake. Sharp LJ said

“Whilst each case must be considered on its facts, where the relevant contract is one in settlement of litigation, with the benefit of expert legal advice on both sides, particularly where Article 10 issues are in play in that litigation, it seems to me that it would require a strong case for the court to conclude that such a bargain was disproportionate and to refuse to enforce it other than on ordinary contractual or
equitable principles” [67]

On the issue of the injunction, the judge said there were two important elements in deciding the question: the right to freedom of expression, and the contractual rights of the parties in relation to the settlement on the other.

It was axiomatic that the right to freedom of expression was a Convention right of fundamental importance, which had been consistently recognised as such both in Strasbourg and domestic jurisprudence. Sharp LJ said

“The courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction,” [102]

Special emphasis is placed on the protection of statements of a political nature, as well as statements on wider issues of legitimate public concern, to which the court had to have particular regard by virtue of section 12 (4) of Human Rights Act 1998.

But Article 10(2) allowed restrictions on those rights for the protection of the reputation and rights of others, which included, in this case, the private rights of the parties under an otherwise validly constituted contract of settlement – something to which the law attached considerable importance.

Except in well-defined circumstances, such contracts would normally be enforced.

The issue was one of proportionality, particularly whether the restrictions in clause 3.2 of the settlement agreement were a disproportionate interference with the respondents’ Article 10 rights.

But the analysis after a settlement agreement was freely entered into, and the parties have waived their respective rights, was not the same as that which arose at the interim stage say, in a contested privacy or defamation action.

There was an important public interest in parties to litigation, including this kind of litigation, being encouraged to settle their disputes with confidence that, if need be, the court would be likely to enforce the terms of a settlement freely entered into on either side.

There was nothing disproportionate on the facts in this case in holding the newspaper to its bargain.

This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.