Poroshenko v British Broadcasting Corporation

Factual and Procedural Background

This is a libel claim brought by the Plaintiff, identified as the President of Ukraine, against the Defendant, a well-known broadcaster. The claim arises from two publications by the Defendant: a television news broadcast aired on 23 May 2018 ("the Television Report") and a news article published on the Defendant's website ("the Website Report"). The Plaintiff alleges that both reports conveyed the defamatory meaning that he had procured or authorised a secret payment of $400,000 to Michael Cohen, the personal lawyer of the then US President, to secure back-channel talks, thereby implying serious corruption.

The Claim Form was issued on 3 September 2019, with Particulars of Claim served simultaneously. Initially, the Plaintiff complained only about specific parts of each publication but later amended the claim to include the full content of both reports with the Defendant's consent. The Defendant disputed the meaning attributed by the Plaintiff, contending a different, less defamatory meaning.

Following an application by the Defendant, the court ordered that the issue of the natural and ordinary meaning of the publications be determined as a preliminary issue before the Defence was served. This judgment addresses that preliminary issue as well as the reserved costs related to the Defendant's application.

Legal Issues Presented

1. What is the natural and ordinary meaning of the Television Report and the Website Report?
2. Does the meaning attributed to the publications by the Plaintiff or that contended by the Defendant prevail?
3. What are the appropriate costs orders relating to the Defendant's application for a preliminary issue trial?

Arguments of the Parties

Plaintiff's Arguments

• The meaning that the Plaintiff attributes to the reports is clear and arises plainly from the text without the need for inference.
• The overall message conveyed is that the Plaintiff was directly involved in authorising a corrupt payment to Michael Cohen to facilitate back-channel talks with the US President.
• The reports explicitly indicate that intermediaries acted on behalf of the Plaintiff, implying his knowledge and approval of the payment.
• The reports do not suggest any doubt about the Plaintiff's involvement; by contrast, they expressly exclude the US President from knowledge of the payment.
• The presentation of the story is one-sided and authoritative, relying on multiple credible sources and presented as headline news, thereby enhancing the defamatory impact.
• The Website Report contains additional incriminating details and sources, strengthening the implication of guilt.
• The Plaintiff's denials are presented as flat and unconvincing, reinforcing the impression of guilt.

Defendant's Arguments

• The Court should assess the meaning of each publication separately, as viewers/readers would not necessarily consider both together.
• The key questions to determine meaning are whether a payment was made to Michael Cohen and whether the Plaintiff authorised it.
• The reports convey that a payment was probably made, but the Plaintiff's authorisation or knowledge is uncertain or unknown.
• The Television Report clearly states that the allegations are claims and includes prominent denials from the Plaintiff and others early in the broadcast.
• The reports describe a complex chain of intermediaries, and do not state or imply that the Plaintiff personally authorised the payment.
• The reports portray the involvement of Michael Cohen as corrupt, but do not attribute direct culpability to the Plaintiff.
• The Defendant contends the Plaintiff's meaning is strained and not supported by the natural and ordinary meaning of the reports.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Koutsogiannis -v- The Random House Group Ltd [2019] EWHC 48 (QB)	Principles for determining the natural and ordinary meaning of defamatory publications.	The Court applied the principles set out regarding how meaning is assessed from the viewpoint of the reasonable viewer or reader.
Zarb-Cousin -v- Association of British Bookmakers [2018] EWHC 2240 (QB)	Consideration of 'bane and antidote' in defamation claims, particularly in broadcast media.	The Court applied the approach to assessing the effect of denials or mitigating statements ('antidotes') in the context of the overall publication.
Morgan -v- Associated Newspapers Ltd [2018] EMLR 25	Desirability of early determination of meaning as a preliminary issue in defamation claims.	The Court referenced this authority in supporting the Defendant's application for trial of meaning as a preliminary issue.
Bokova -v- Associated Newspapers Ltd [2019] 2 WLR 232; [2019] EMLR 6	Case management and procedural guidance on preliminary issues in defamation proceedings.	The Court relied on this authority to justify the procedural direction for early determination of meaning.

Court's Reasoning and Analysis

The Court undertook the task of determining the natural and ordinary meaning of the two reports from the perspective of a hypothetical reasonable viewer or reader, who would typically engage with the material only once and without detailed analysis. The Court emphasized the importance of considering the overall context and presentation rather than dissecting the text line-by-line.

Applying the repetition rule, the Court found that the Television Report and Website Report repeatedly conveyed the message that the payment to Michael Cohen was made by intermediaries acting on behalf of the Plaintiff. The phrase "acting for" was interpreted naturally to imply the Plaintiff's knowledge or approval.

The Court rejected the Defendant's argument that the complex chain of intermediaries suggested the Plaintiff's ignorance of the payment. The Court held that the natural understanding was that the intermediaries were acting with the Plaintiff's authority, and no suggestion in the reports indicated they were acting independently or without his knowledge.

The Court found that the denials included in the reports were insufficient antidotes to the strong incriminating evidence presented. The denials were either flat or framed in a way that a reasonable viewer or reader would discount them in light of the surrounding material.

Accordingly, the Court concluded that the natural and ordinary meaning of both reports was that the Plaintiff had procured or authorised a corrupt payment of $400,000 to Michael Cohen to extend a brief meeting with the US President into more substantial talks.

Regarding the reserved costs issue, the Court found that the Plaintiff's solicitors had adopted an obstructive and unconstructive stance toward the Defendant's reasonable proposal to try meaning as a preliminary issue. This conduct caused unnecessary delay and additional costs. The Court ordered that the Plaintiff pay the costs of and occasioned by the Defendant's application, including all correspondence after 5 October 2018.

Holding and Implications

The Court held that the natural and ordinary meaning of both the Television and Website Reports was that the Plaintiff had procured or authorised a corrupt payment of $400,000 to Michael Cohen to facilitate extended discussions with the US President.

The direct consequence of this ruling is that the Plaintiff's meaning is upheld with some modifications reflecting the corrupt nature of the payment and the purpose for which it was made. The Court did not make any findings on the truth or falsity of the allegations or whether the meaning was defamatory under the Defamation Act 2013, as those issues were not before it at this stage.

On costs, the Plaintiff was ordered to pay the Defendant's costs of the application for trial of the preliminary issue of meaning, reflecting the Court's disapproval of the Plaintiff's obstructive conduct during the procedural process.