Terluk v Berezovsky

Factual and Procedural Background

This appeal arises from a libel action concerning a broadcast in the United Kingdom on 1 April 2007 of a Russian-language television programme aired on a satellite channel available without subscription throughout the UK. The programme concerned the murder of a former intelligence officer in London in November 2006. The claimant, a political exile residing in the UK since 2001, alleged defamatory statements were made against him in an interview conducted with a man using the pseudonym "Pyotr," who was found by the trial judge to be the defendant despite his denials.

The defendant, originally from Kazakhstan, was interviewed in London on 28 March 2007, and the broadcast included his statements. The claimant alleged that the defendant's words imputed involvement in a criminal conspiracy to secure the claimant's political asylum by means of a false confession and implicated him in threats and a murder. The trial judge found the defendant liable and awarded damages of £150,000.

The procedural history is complex, involving multiple grounds of appeal raised by the defendant, including whether the words were defamatory, whether the defendant bore legal responsibility for the broadcast, and whether fresh evidence should be admitted on appeal. The first defendant, a state-owned broadcasting company, did not participate in the appeal. The appeal court dealt initially with two key issues: defamatory meaning and the defendant’s responsibility for publication.

Legal Issues Presented

1. Whether the words complained of are capable of bearing any defamatory meaning of the claimant.
2. Whether, in law, the defendant bears responsibility for the publication sued upon.
3. Whether the defendant should be permitted to rely on fresh evidence on appeal.
4. The proper legal test for liability in defamation for republication of words originally spoken by the defendant.
5. The adequacy of the judge's reasoning on defamatory meaning and justification defence.
6. Whether the interview was conducted on an occasion of absolute privilege.
7. The appropriateness of the damages awarded by the trial judge.

Arguments of the Parties

Defendant's Arguments

• The words spoken in the interview did not impute any defamatory meaning to the claimant, only implicating others.
• The defendant denied being "Pyotr" and contested responsibility for the broadcast.
• The defendant sought to justify the statements as true, relying on fresh evidence including witness statements from a person wanted for the murder at issue.
• On the republication issue, liability should only attach if the defendant intended or authorised the broadcast, not merely if it was foreseeable.
• The interview was conducted as part of a criminal investigation, thus attracting absolute privilege.
• The damages awarded were excessive and lacked sufficient reasoning.

Claimant's Arguments

• The defendant’s words bore a defamatory meaning imputing criminal conspiracy and threats involving the claimant.
• The defendant was the interviewee ("Pyotr") and knew the interview was to be broadcast in the UK, thus bearing responsibility for republication.
• The justification defence was rightly rejected by the trial judge after detailed factual analysis.
• Reasonable foreseeability of republication suffices to impose liability for republication.
• The interview was not part of a criminal investigation and thus not privileged.
• The damages awarded were appropriate given the seriousness and duration of the defamatory publication.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ladd v Marshall [1954] 1 WLR 1489	Criteria for admitting fresh evidence on appeal: (1) could not have been obtained with reasonable diligence for trial; (2) would probably have influenced the result; (3) apparently credible.	Applied to assess whether fresh evidence from witness statements should be admitted; court found criteria not met, denying admission.
McManus v Beckham [2002] 1 WLR 2982	Reasonable foreseeability suffices to found liability for republication where defendant liable for original publication.	Referenced in debate on test for liability for republication; court found defendant liable under any test.
Broxton v McLelland [1995] EMLR 485	Reasonable foreseeability as test for liability in republication cases.	Supported claimant's argument on republication liability; court did not resolve test but found liability anyway.
Richardson v Schwarzenegger [2004] EWHC QB 2422	Reasonable foreseeability test for republication liability.	Used to illustrate legal principles on republication; court found defendant liable regardless of test.
Mahfouz v Brisard [2005] EWHC QB 2304	Reasonable foreseeability test for republication liability.	Referenced in discussion of republication liability; court held defendant liable.
Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318	CPR discretion and overriding objective in admitting fresh evidence.	Applied to guide exercise of discretion under CPR for fresh evidence; court emphasized justice and discretion.
Sharab v Al-Sud [2009] EWCA Civ 353	CPR discretion and overriding objective in admitting fresh evidence.	Confirmed importance of overriding objective in admitting fresh evidence; court applied principles.
Hamilton v Al-Fayed (No 4) [2001] EMLR 15	Old Ladd v Marshall criteria remain relevant but are not strict rules for admitting fresh evidence.	Used to explain that discretion under CPR governs fresh evidence admission; criteria are considerations.
Adam v Ward [1917] AC 309	Absolute privilege applies only where objective reality supports immunity, not subjective belief.	Applied to reject defendant's claim of absolute privilege for interview; objective facts showed no privilege.
Cassell v Broome [1972] AC 1027	Joint tortfeasor liability may be limited to lowest common denominator of responsibility.	Referenced in discussion of damages apportionment between defendants; court noted uncertainty in law.
Hayward v Thompson [1982] 1 QB 47	Lord Denning’s view on joint publication liability not to draw fine distinctions among defendants.	Considered in damages discussion; court acknowledged differing judicial views on joint tortfeasor damages.
John v MGN Ltd [1997] QB 586	Damages for libel should not be interfered with unless unreasonable; personal injury awards can be a reference.	Cited in assessing damages; court upheld trial judge’s award as within reasonable bounds.
Galloway v Jewish Communications (unreported, 2008)	Example of damages awarded for defamatory allegations.	Referenced by defendant to argue damages were excessive; court found no basis to reduce award.

Court's Reasoning and Analysis

The court first confirmed the trial judge’s finding that the words spoken by the defendant were capable of bearing a defamatory meaning imputing involvement in a criminal conspiracy to secure the claimant's asylum by procuring a false confession. The defendant’s denial of being "Pyotr" was rejected based on credible evidence, including the circumstances of the interview and expert testimony about the filming setup.

On the issue of republication liability, the court considered competing legal tests: whether liability requires intention or authorisation of republication, or whether reasonable foreseeability suffices. The court found it unnecessary to determine the correct test because on the facts the defendant intended or authorised the broadcast by giving the interview with the knowledge it would be aired in the UK.

The defendant’s justification defence was rejected by the trial judge after detailed factual analysis, a conclusion the court found no basis to overturn. The court also rejected the claim of absolute privilege, holding that the interview was not part of a criminal investigation but a television broadcast.

Regarding fresh evidence, the court applied the established criteria from Ladd v Marshall and the discretion under the Civil Procedure Rules. It found the proposed fresh evidence from the witness statements to be neither credible nor timely, especially given the extensive cooperation between the defendant and Russian prosecutors who would have had access to such evidence if genuine. The court concluded admitting this evidence would not serve the interests of justice.

On damages, the court acknowledged the award of £150,000 was high but held it was not unreasonable or disproportionate given the seriousness of the allegations, their persistence, and the need to vindicate the claimant’s reputation. The court noted the complexities in apportioning damages between joint tortfeasors but declined to interfere with the judge’s award.

Holding and Implications

The court DISMISSED the defendant’s appeal on all grounds for which permission was granted and refused permission on the remaining grounds.

The direct effect is that the defendant remains liable for the defamatory statements made during the interview, with the damages award upheld. The court declined to admit fresh evidence proposed by the defendant, thereby affirming the trial judge’s rejection of the justification defence. No new legal precedent was established; rather, the court applied existing principles on defamatory meaning, republication liability, admission of fresh evidence, privilege, and damages assessment.