Ipsofactoj.com: International Cases  Part 4 Case 8
QUEENS BENCH DIVISION
- vs -
Times Newspaper Ltd
27 APRIL 2001
Mr Justice Gray
It is now for me to decide, in the light of the evidence which has been given and in the light of the answers given by the jury to a number of questions of primary fact, whether the Defendants have established that two articles in issues of the Times for 8.9.99 and 14.10.99 respectively were published on occasions of qualified privilege.
The Claimant, Dr Grigori Loutchansky, is an international businessman of Uzbekistani origin. The Defendants are the publishers of the Times, its editor and the two journalists under whose by-lines the articles appeared in the paper. One of the journalists, Mr James Bone, turned out to have played no part in the writing of either article. Both articles were written by Mr David Lister. Dr Loutchansky claims that the articles of 8.9.99 and 14.10.99 are libellous of him.
It is rightly and inevitably conceded by the Defendants that both articles are defamatory of Dr Loutchansky. Both accuse him of being the boss of a major Russian criminal organisation and of being involved in, amongst other things, money-laundering. The Defendants have accepted and continue to accept that it is no part of their case that Dr Loutchansky is either rightly or reasonably suspected of criminal activity. The substantive defence on which they rely is qualified privilege. Since different considerations apply to the 2 articles, I shall in due course consider them separately.
THE PLEADED DEFENCE OF QUALIFIED PRIVILEGE
Before turning to the terms of the 1st article, however, I should summarise the way in which the Defendants' claim to be entitled to the defence of qualified privilege, or qualified immunity as I would prefer to term it, is formulated in the Defence.
In the particulars set out in paragraph 18 it is averred that it is the duty of a free press to communicate to the public at large information regarding matters of public interest and that there is a corresponding interest on the part of members of the public in receiving such information. The Defendants contend that the subject matter of the articles complained of was of the greatest general interest and importance to the public at large and to the readers of the Times in particular, that is to say the corruption and criminalisation of Russian society since the break-up of the USSR, the involvement of Russian organised criminal groups in money laundering through Western banks, the smuggling of nuclear weapons and the activities of such groups, including the acquisition of businesses in the West and in the UK in particular.
There follow detailed particulars of the information upon which the Defendants claim to have relied when publishing the articles, which information they say they were entitled to treat as reliable, responsible and authoritative. That information comprises the following:
media reports of the involvement of the Bank of New York in laundering the proceeds of criminal activity in Russia;
media reports of suspicions about and investigations into serious crimes allegedly committed by Dr Loutchansky, which have resulted in his exclusion from various jurisdictions (including the UK);
a statement by the then director of the CIA about Claimant's company, Nordex, being associated with Russian criminal activity;
convictions of Dr Loutchansky by a Latvian court in 1983 for offences of dishonesty; various reports in the media and the contents of reports by intelligence services.
In addition the Defendants relied in their Defence on information provided to Mr Lister by three sources, whom they have declined to identify, who asserted amongst other things that Dr Loutchansky either had been or was being investigated by various law enforcement agencies in connection with money-laundering offences. The Defendants also relied on information provided by another source whom they were ultimately prepared to name. He was Jeffrey Robinson who had written a book about organised crime.
It emerged before the commencement of the trial that certain of the information concerning Dr Loutchansky on which the Defendants relied in the Defence in support of their contention that the articles were published on occasions of qualified privilege was not known to the Defendants at the time of their publication of the 2 articles. Some of that information came to the knowledge of the Defendants between the publication of the 1st and the publication of the 2nd article and some after publication of the 2nd article.
I ruled that it was not open to the Defendants to rely in support of their contention that they were under a duty publish the articles on information which did not come to their knowledge until after publication. That ruling was upheld by the Court of Appeal.
In consequence in relation to the publication of the 1st article on 8.9.99 the Defendants were confined to relying at trial on those facts which were known to them (or more specifically known to Mr Lister) before that date. That material consists essentially in a number of articles previously published in the American and British press together with information obtained from the four sources to whom I have referred.
The answer of Dr Loutchansky to the Defendants' case on qualified privilege as pleaded in the Reply was that the allegations against the Claimant published by the Defendants were not of legitimate public interest or concern and so the public had no right to be informed about them. The Particulars, so far as material, asserted that the Defendants had recycled false and unsubstantiated allegations against Dr Loutchansky drawn from other publications; that they had alleged a link between Dr Loutchansky and the Bank of New York scandal which was speculative and unsubstantiated and which was based on manifestly insubstantial sources and that in relation to the 2nd article they had published an allegation made pursuant to her own agenda by a woman involved in divorce proceedings (Mrs Chernoi) and had again repeated false allegations against Dr Loutchansky drawn from other publications.
As to such information as was provided by the four sources relied on by the Defendants, Dr Loutchansky contended that none of them was reliable or authoritative or well-informed. The accuracy of the information said to have been provided by the sources was challenged.
The claim by the Defendants that they attempted to contact Dr Loutchansky prior to publication was denied.
The Reply did not contain any claim that any privilege which the articles might otherwise have attracted was forfeited because the Defendants were malicious in what they published about Dr Loutchansky. Accordingly, if the claim to privilege is well founded, Dr Loutchansky would have no remedy in respect of the defamatory and admittedly false charges published against him.
The foundation on which the defence of qualified privilege rests is, to quote Parke B in Toogood v Spyring (1834) 1 CM&R 181, 193, "the common convenience and welfare of society", that is, the public interest. In that case he said:
The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice, which draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.
Thus the public interest may in certain circumstances require the communication of statements which are both defamatory of a person and untrue. It is in my view important not to overlook the fact that, where the defence of qualified privilege is held to be available, it will, subject to malice, have the effect of denying any remedy, whether by way of compensation or other vindication, to a person who has been libelled.
The traditional formulation of the circumstances which will give rise to the existence of the privilege is that stated by Lord Atkinson in Adam v Ward (1917) AC 309, 334
a privileged occasion is .... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
"Duty" in the sense in which that term is used in this context has been judicially defined by Lindley LJ in Stuart v Bell (1891) 2 QB 341, 350 to mean
a duty recognised by English people of ordinary intelligence and morale principle, whether civil or criminal .... Would the great mass of like minded men in the position of the defendant have considered in their duty under the circumstances to make the communications? In considering the question whether the occasion was an occasion of privilege, the court will regard the alleged libel and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which give rise to a social or moral right or duty, and the consideration of these things may involve the consideration of questions of public policy.
It is for the Judge to determine whether an occasion is privileged and therefore to decide whether the defendant was under a duty to make the communication. The judge will have no difficulty in determining whether there was a legal duty to make the communication, but there is no sure and unfailing criterion of what does or does not constitute a moral or social duty; as was pointed out by Erle C.J. in Whiteley v. Adams, "Judges .... have all felt great difficulty in defining what kind of social or moral duty will afford a justification."
I take that form of duty, albeit one not owed in law, to be a duty such that a publisher would be open to legitimate criticism if he failed to publish the information in question.
Qualified privilege is defeasible on proof by Dr Loutchansky that the defendant was actuated by malice in publishing the words which are the subject of complaint. Mr Richard Spearman QC for Defendants rightly underlines the fact that no such allegation is made against The Times in this case. In this respect the good faith of the newspaper is therefore not in issue.
Until very recently the position at common law was that circumstances would rarely arise where a general duty to publish information to the world at large, for example in the columns of a national newspaper, would be recognised. Thus in 1984 Fox LJ said in Blackshaw v Lord (1984) QB 1, 42:
I think that states the principle rather too widely. It is necessary to a satisfactory law of defamation that there should be privileged occasions. But the existence of privilege involves a balance of conflicting pressures. On the one hand there is the need that the press should be able to publish fearlessly what is necessary for the protection of the public. On the other hand there is a need to protect the individual from falsehoods. I think there are cases where the test of "legitimate and proper interest to English newspaper readers" would tilt the balance to an unacceptable degree against the individual. It would, it seems to me, protect persons who disseminate any untrue defamatory information of apparently legitimate public interest provided only that they honestly believe it and honestly thought that it was information which the public ought to have. See London Artists Ltd. v Littler  1 W.L.R. 607,615.
This passage was expressly approved by the CA in Reynolds v TNL (1998) 3 WLR 862. Furthermore in the same case in the HL, reported at (1999) 3 WLR 1010, Lord Cooke at p1046B commended Blackshaw "as adopting substantially the right approach".
However, the House of Lords in Reynolds recognised that in contemporary conditions appropriate weight needs to be given to the importance of freedom of expression by the media on all matters of public concern. Rejecting the introduction of an additional third "circumstantial" test for deciding whether an occasion is protected by qualified privilege which had been proposed by the CA, the House of Lords held that the traditional duty/interest test, recited above, was sufficiently elastic for appropriate weight to be given to that consideration.
Notwithstanding the favourable comments made about the decision in Blackshaw, it appears to me to be clear that in the light of the decision of the House of Lords in Reynolds it will in future be easier for a publisher than it has been historically to establish the privilege, not least in cases where the publication was to the world at large. In McCartan Turkington Breen v TNL (2000) 3 WLR 1670 Lord Cooke said at 1689F-G
The reason why qualified privilege at common law was not pleaded as an alternative does not much matter, but at least until Reynolds it would seem that the legal profession in England may not have been fully alive of the possibility of a particular rather than a generic qualified privilege for newspaper reports where the circumstances warranted a finding of sufficient general public interest. Although Blackshaw v Lord 1984 Q.B. 1 had recognised that possibility, the judgments in the Court of Appeal may have been somewhat discouraging, especially a reference by Stephenson L.J., at p.27, to "extreme cases." Blackshaw was a case where information identifying a departmental officer responsible for an administrative blunder had allegedly been extracted from a press officer by a process of questioning by a journalist likened to extracting a tooth. It was far from a plain case of circumstantial qualified privilege. Defences of "public figure" or "public official" privilege as a category have commonly been struck out (see the unreported cases listed in Carter-Ruck on Libel and Slander, 5th ed. (1997), p. 145, n.4).
Although Reynolds has rightly been perceived as enlarging the ambit of qualified privilege, the conceptual foundation for the defence remains the existence of a reciprocity of duty and interest on the part of the publisher and the publishees respectively. This dual requirement was confirmed by all the members of the House of Lords in Reynolds (see for example Lord Hobhouse at p1061C-D). Brooke LJ at para 23 of his judgment on an interlocutory appeal in the present case reiterated the existence of this dual requirement.
It follows that the mere existence of a legitimate interest on the part of the readership of a newspaper to have the information imparted to them will not of itself suffice to establish the privilege. It is possible to visualise cases where it can be said that the readership has a legitimate interest in knowing the information (perhaps because of the status or nature of the information in question) but where the claim to privilege will fail because the requisite duty to publish is not made out (perhaps because of the newspaper's failure to report the gist of the answers of Dr Loutchansky to the accusations against him).
HUMAN RIGHTS JURISPRUDENCE
The Defendants devoted a substantial part of their written argument to the body of domestic and Strasbourg jurisprudence which establishes the importance of the constitutional right to freedom of expression. I intend no disrespect to the Defendants' argument if I do not rehearse those submissions in this judgment. I accept that the authorities relied on by the Defendants establish the following propositions:
that the right to freedom of expression is a basic and fundamental one or, as Lord Steyn put it in Reynolds at p1030b, "a right based on a constitutional or higher legal order foundation";
that the right is now buttressed by s12 of the HRA 1998 and
that the right to freedom of expression may in certain circumstances be curtailed or restricted, but only where it is convincingly demonstrated that there is a pressing social need for such curtailment or restriction in order (for example) to pursue the legitimate aim of protecting the reputation of others.
These propositions are to be derived from such cases as:
Sunday Times v United Kingdom (No1)  2 EHRR 245;
Rantzen v Mirror Group Newspapers Ltd  QB 670(CA) @693;
Been v Times Newspapers Ltd  3 W.L.R. 1670 @1679-80;
Sunday Times v. United Kingdom (No2)  EHRR 229,@241-42 and
Bladet Tromso & Stensaas v. Norway  29 EHRR 125 @167
and from the speeches of the House of Lords in Reynolds itself. It will suffice for present purposes if I cite part of the speech of Lord Steyn in McCartan. At p1686 he said (in the context of the privilege which attaches to reports of public meetings):
In the leading speech in Reynolds v. Times Newspapers Ltd.  3 W.L.R. 1010 Lord Nicholls of Birkenhead described freedom of expression as the starting point: see p. 1022. in the Simms case a majority of the Law Lords explicitly treated freedom of expression as a primary right in a democracy, observing that without it an effective rule of law is not possible. Nevertheless, it is not an absolute right. Sometimes it must yield to other cogent interests such as the protection of the reputations of individuals. Even before the coming into operation of the human rights Act 1998 the principle of freedom of expression attained the status of a constitutional right with attendant high normative force: see my speech in the Reynolds case,  3 W.L.R. 1010, 1029H-1030A; compare also Mohammed v The State  2 A.C. 111, 123H. Now as Lord Nicholls of Birkenhead put it in the Reynolds case, freedom of expression is buttressed by the Human Rights Act 1998. The Convention fulfils the function of the Bill of Rights in out legal system. There is general agreement that the Human Rights Act 1998 is a constitutional measure: see Wade & Forsyth, Administrative Law, 8th ed. (2000), preface; Starmer, European Human Rights Law (1999), p.19 para . 1.27; Wadham & Mountfield, The Human Rights Act 1998 (1999), PP. 26-27, para. 4.2.; Lester & Pannick, Human Rights Law and Practice (1999) P.17 para. 2.04; Coppel, The Human Rights Act 1998; enforcing the European Convention in the Domestic Courts (1999) p.8, para.1.15. The position is now as Lord Nicholls of Birkenhead felicitously put it in the Reynolds case: "To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved;"
The reason why I do not dwell on those authorities is that it appears to me that the exercise on which the House of Lords was engaged in Reynolds was essentially one of accommodating within the elastic duty/interest test for the existence of the privilege appropriate recognition of the vital importance to be attached in contemporary conditions to the right to freedom of expression in. The decision of the House of Lords in Reynolds established the extent to which the scope of the defence of qualified privilege required enlargement in view of the then forthcoming enactment of the HRA. The ambit of the limitation to be imposed on the right of free expression in order to protect the reputation of others was defined so as to take full account of the Convention.
In deciding the question of privilege in the present case I give full weight to the propositions summarised at para 25 above. It is the Defendants' position that the House of Lords in Reynolds did not go far enough in broadening the scope of qualified privilege. But I am of course bound by that decision.
Mr Spearman in his submissions laid stress on the right of the public at large to know the information contained in the Times articles. He referred to the words of Lord Nicholls in Reynolds at p1020c, where he appears to equiperate the "right to know test" with the "duty and interest" test. But I do not understand Lord Nicholls in that passage to be dispensing with the requirement that a duty to publish be established: a right to know (as opposed to an interest in knowing) can exist only where the correlative duty has been established. A "right to know" on the part of the publishee cannot be a trump card because it ignores the duties and responsibilities upon the publisher which are expressly referred to in Art 10(2) of the ECHR and which may legitimately curtail the right to know in cases where there is a need to protect the reputation of those affected by the publication in question.
THE CONSIDERATIONS FOR DETERMINING PRIVILEGE
Whether a particular publication is protected by qualified privilege depends on the circumstances of the case. As Lord Steyn remarked in Reynolds at p1031e-f and 1033a, "the concrete facts of the case" are determinative of the existence of the privilege. This accords with the provision in Article 10 of the ECHR that the right to freedom of expression, since it carries with it duties and responsibilities, may be subject to such restrictions as are prescribed by law and are necessary in a democratic society for the protection of the reputation of others. As Sedley LJ observed in Douglas v Hello Magazine (2001) 2 WLR 992 at para 136, by virtue of section 12(1) and (4) of the HRA 1998, the qualifications to the right of freedom of expression in article 10(2) are as relevant as the right itself.
In Reynolds at 1027 Lord Nicholls provided a non-exhaustive list of the matters to be taken into account:
Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balanced operation is better carried out by a judge in a reasoned judgment than by a jury. Over time a valuable corpus of case law will be built up.
It is common ground between the parties that each of the factors enumerated by Lord Nicholls is, potentially at least, material to the issue whether privilege is established in the present case.
It goes without saying that the various factors will not carry the same weight in each case. To take but one obvious instance, the significance of a failure on the part of the defendants to include in the article complained of the refutation or denial by the Claimant of the charges against him will be of far greater significance in cases where the charges are of great gravity and all the more so where there is no urgency about the communication of the information in question. All factors which are applicable in the particular circumstances must be weighed in the balance. The weight to be attached to each one will be dictated by the facts of the case. The various considerations interact with one another.
It is because each case turns on its own facts that the assistance to be derived from the few cases decided post-Reynolds is, in my judgment, limited. It is, however, worthy of note that in three of those cases the failure of the defendant to include the claimant's answer to the criticisms of his conduct was at least one of the reasons why the claim to privilege failed: see Reynolds itself (see Lord Nicholls at 1028c-f); Saad al Fagih v HH Saudi Research and Marketing (28.7.00 at paras 55-62) and Grobbelaar v News Group (2001) EWCA Civ 33 at paras 33-43 and 200-213. In GKR Karate v Yorks Post No 2 (2000) EMLR 410, the claim to privilege was upheld. But, for the reasons which appear from the judgment of Simon Brown LJ in Grobbelaar at para 45, the circumstances surrounding the publication in that case were very remote from those in the present case. It was a case where the defendant publishers were able to assert that they were under a duty to warn the limited and specialist readership of their newspaper about the alleged malpractices of the claimants which were potentially detrimental to those readers.
THE ANSWERS OF THE JURY TO QUESTIONS OF PRIMARY FACT
Before discussing the operation of the factors enumerated by Lord Nicholls in the present case, I should record the fact that, as required by the decision in Reynolds and with the agreement of both parties, I left 15 questions of primary fact to be answered by the jury. (It is not for me to say whether or not in a case such as the present setting an examination paper for the jury in this way is a convenient or satisfactory practice to follow). The questions, together with the answers of the jury to them, were as follows:
Did the first source tell David Lister that Dr Loutchansky and /or Nordex had been mentioned in a British police report in the mid 1990's known as Operation Ivan?
Answered - Yes
Did the first source tell David Lister that he believed Dr Loutchansky would be under investigation in the UK for possible links to the Bank of New York scandal?
Answered - Yes
Did David Lister speak to Jeffery Robinson about Dr Loutchansky and/or Nordex before he spoke to the third source?
Answered - Yes
Did Jeffery Robinson tell David Lister that the FBI were investigating Dr Loutchansky and/or Nordex in connection with the Bank of New York?
Answered - Yes
Did Jeffery Robinson tell David Lister that NCIS were investigating links between Dr Loutchansky and the Bank of New York?
Answered - Yes
Did the third source give David Lister to understand that Dr Loutchansky and/or Nordex were being investigated by the FBI in connection with the Bank of New York?
Answered - Yes
Did David Lister make searches for Thomas Spencer, Dr Loutchansky's US lawyer, on the internet?
Answered - Yes
Did David Lister make searches for David Cooper
Did David Lister ask Alice Lagnado to do more than find a phone number for Nordex and try to find Dr Loutchansky in Moscow through Nordex?
Answered - No
Did David Lister check with the third source Mrs Chernoi's suggestion that Mr Chernoi and Dr Loutchansky were friends?
Answered - No
Did David Lister take notes of his conversations
As is apparent, the jury found itself unable to answer three of the questions asked. By consent of the parties I accepted the partial answers which the jury were able to give. In regard to the unanswered questions, I proceed on the basis that there is no evidence one way or another on those points. In the light of those answers, I turn to the Reynolds factors as they apply to the two articles which must be considered separately. Neither side suggested that any considerations apart from those enumerated by Lord Nicholls arise in the circumstances of this case.
TIMES ARTICLE OF 8.9.99
1: the seriousness of the allegations
The nature of the charges made against Dr Loutchansky in the 1st article is obvious from the terms of the article itself. The charges were
that Dr Loutchansky was a Russian mafia boss;
that Dr Loutchansky had previously been involved in money-laundering;
that Dr Loutchansky was possibly involved in or linked to money-laundering through the Bank of New York, which was currently the subject of investigation by British and US investigators;
that Dr Loutchansky's company, Nordex, was involved in the smuggling of nuclear weapons and
that Dr Loutchansky allegedly had dealings with a man named Mogilevitch who was described as a mafia figure at the centre of the Bank of New York allegations.
It appears to me that each of these allegations, involving as they do serious international criminal activity, is in terms of its seriousness at the upper end of the scale. The Defendants rightly accept that the allegations made against Dr Loutchansky were very serious. It follows, to paraphrase the words of Lord Nicholls in Reynolds at p1027c, that, if these allegations were untrue, the public would have been seriously misinformed and Dr Loutchansky seriously harmed.
2: the nature of the information and the extent to which the subject matter is a matter of public concern.
Mr Spearman submitted that in assessing the nature of the information published in the article complained of and the extent to which its subject matter is of public concern it is permissible to take into account previous articles published in the same newspaper dealing with the same or a related topic. He contended that such previous articles form part of the context which is relevant to the assessment of the public importance of the particular article which is the subject of complaint. Reliance was placed on the judgment of ECHR in Bladet Tromso and Stenaas v Norway (2000) 29 EHRR 125 at para 63.
The Times article of 8.9.99 alludes somewhat elliptically to the Bank of New York affair "in which millions of dollars of Russian money are alleged to have been laundered". In my opinion the Defendants are entitled to pray in aid in this connection the nature of the information conveyed to readers in earlier related articles published in the Times. Earlier Times articles had recounted in some detail claims that organised Russian criminal groups had set up a money-laundering operation through, amongst other banks, the Bank of New York and involving very large sums of money. Some of that money had reportedly been siphoned from IMF loans to Russia. Senior Russian political figures were allegedly implicated.
I accept the submission of Mr Spearman that it is legitimate to have regard to those earlier articles when considering this first Reynolds consideration. But Mr Browne is right when he says that the question ultimately relates to the particular article sued on.
The case for Dr Loutchansky is that the Times article of 8.9.99 cannot be said to be exposing any wrong-doing and little, if any, of the information in the article was new: it is reporting the fact that allegations have been made and investigations are taking place all of which had previously been published elsewhere. Those comments of Mr Browne may have a considerable bearing on some of the other Reynolds considerations including in particular the status of the information in question. But I do not accept that information has to be novel in order for it to be of public concern. Moreover information that an investigation is under way may be of legitimate public concern depending amongst other things on the subject matter of the investigation.
It was submitted on behalf of Dr Loutchansky that the Times article could not be of legitimate public concern because, according at least to certain reports in the English press, the intelligence agencies involved in the investigations were furious about the publicity accorded to their investigation by the NYT. It was submitted that a newspaper cannot claim to be under a duty to publish information about a criminal investigation which the investigators are concerned to prevent being published. Reliance was placed on the observation of Sir John Donaldson MR in Francome v MGN (1984) WLR 982 that the media are particularly vulnerable to confuse the public interest with their own interest. Much will depend on the nature of the investigation reported on, the stage it has reached and the extent to which it may reasonably be feared that the published information may impede the investigation. But I do not accept that it follows from the natural preference of investigators not to publicise their investigation that publications about the fact and progress of investigations are on that account not to be regarded as being of public concern. Otherwise the media might find their reporting of long and complex investigations inhibited over a substantial period.
All three journalists who gave evidence (the foreign editor, Ms Bronwen Maddox; the New York correspondent Mr James Bone and Mr Lister) stressed both in their witness statements and in their oral testimony the enormous importance of the Bank of New York story as they saw it. Their evidence has to be viewed in the light of the fact that an editorial decision was taken to place the article half way down p.13 of the issue of the Times for 8.9.99. Moreover Mr Bone expressed some reservation whether the fact that Dr Loutchansky was said to be under investigation by Interpol was particularly important. But, as was accepted on behalf of the Defendants, the question whether the information published in the Times was of public concern is a question to be decided by the court on an objective basis.
I am satisfied that, judged objectively, the information contained in the Times article of 8.9.99 that a named second businessman was under investigation by American and British agencies over his possible involvement in laundering billions of dollars of Russian money was a matter of some legitimate general interest to Times readers. So too was the information that a company owned by the same businessman had been the subject of earlier investigations into alleged money-laundering. To that extent the subject matter of the article was of public concern.
3: the reliability and motivation of the sources of the information
46. It goes without saying that the reliability of the sources for the information published in the Times article of 8.9.99 is an important factor in deciding whether there was a duty on the Defendants to publish that article. In Reynolds in the CA Lord Bingham CJ said at p899G:
unverified information from unidentified and unofficial sources may have little or no status and where defamatory statements of fact are to be published to the widest audience on the strength of such sources, the publishers undertake a heavy burden in showing that the publication is "fairly warranted by any reasonable occasion or exigency"
The reliability of the source is a question to be judged by how objectively he or she should have appeared to the journalist at the time: see GKR Karate v Yorkshire Post (2000) 1 WLR 2571 at 2578H.
It was accepted on behalf of the Defendants that the Times article of 8.9.99 was based in part upon reports which had appeared in the press on the other side of the Atlantic. Reputable though most of the US newspapers in which those reports appeared undoubtedly were, it does not appear to me that as a general rule one newspaper is entitled to treat as being necessary reliable information derived solely from other newspapers, however respectable and reliable the journals in question may be and however often the information has been repeated in the media. Mr Lister acknowledged in his evidence the real possibility of false stories being recycled repeatedly by the press, although he went on to make clear that he felt he was entitled to rely on previous publications in the present case.
I accept that the cuttings show that publicity had been given, for the most part in the American press, to the following: to the allegation that Nordex had allegedly been involved in smuggling nuclear weapons; to a claim by the then Director of the CIA that Nordex was associated with criminal activity; to claims that Dr Loutchansky was a Mafia boss and to the controversy which followed Dr Loutchansky 's meeting with President Clinton.
But the essence of the Times article of 8.9.99 was that Dr Loutchansky was under investigation by the FBI on suspicion of money-laundering. This allegation had not previously been published in the American or the British media. In these circumstances I have come to the conclusion that little turns on the reliance placed by the Defendants on press reports. What appears to matter to me is the reliability of the information provided to Mr Lister by his human sources. By "sources" I do not just mean the four sources upon whom, according to the Defence and to Mr Lister's evidence, he relied for the information in the article but also on those other sources who were unable to confirm the published allegations. It is convenient to start by assessing the reliability of the sources upon whom Mr Lister says he did rely.
Before doing so, however, it is necessary to say something about the acute problem caused by the concealment by the Defendants of the identity of three of the four sources. In their Defence the Defendants make the positive averment that they were entitled to treat the sources for the article as "reliable, responsible and authoritative". Yet they decline to say who they were. The law respects the reason why journalists refuse to identify sources, namely the fear that, if sources are at risk of being identified, the flow of valuable information from them to journalists will dry up. Section 10 of the Contempt of Court Act recognises the right to withhold the identity of journalistic sources, subject to defined exceptions. But how in these circumstances is the court to evaluate the reliability of the anonymous sources?
The problem is highlighted by the manner in which in the present case the Defendants dealt with the 4th source. Initially the Defendants declined to identify him. Eventually they were in effect compelled to do so. The source turned out to be an author named Robinson whose identity the Defendants had no valid reason for withholding in the first place. Claims were also made that other sources were confidential which also turned out to be baseless. It is essential that in cases such as the present defendants consider carefully and conscientiously whether non-disclosure of the identity of their sources is justified and necessary.
Some assistance as to the approach which should be adopted to this problem can be derived from Reynolds. At p1027g Lord Nicholls said:
In general a newspapers unwillingness to disclose the identity of its sources should not weigh against it.
I accept that it would be wrong to draw any inference adverse to the newspaper from the mere fact of the withholding of information as to the identity of its sources. That is, however, not to say that every claim made by the journalist as to the reliability of his unnamed source is to be taken at face value.
The first source
The first source was described by Mr Lister as a former detective who had served in the National Crime Squad (NCS) and the National Criminal Intelligence Service (NCIS) and who had special expertise in the investigation of money-laundering and organised crime. He had been recommended to Mr Lister by a senior journalist on the Times. It was not suggested that he was paid for his information or that he had an axe to grind. I do not find it to be necessary for me to make a finding whether or not Dr Loutchansky legal advisers are correct in their deduction who this source was.
The information which, according to Mr Lister, the first source provided to him and which was used in the article was
that Dr Loutchansky/Nordex had been investigated by the British in the 90s;
that Dr Loutchansky had been mentioned in a police report in the mid-90s named Operation Ivan;
that he believed that Dr Loutchansky would be under investigation in the UK for possible links to the Bank of New York scandal.
It is common ground that the information at (i) was provided by the first source. By their answers to questions 1 and 2 the jury found that the first source did give the information at (ii) and (iii) to Mr Lister. But the first source also provided information to Mr Lister which, when he made enquiries about it, turned out to be false. He told Mr Lister that Nordex had been involved in a huge money-laundering scam involving bureaux de change and that he should look at "Nordex Trading, Hemel Hempstead". Mr Lister discovered before publication that the first source was wrong on both points: neither had any connection with Dr Loutchansky's Nordex. I do not accept the evidence of Mr Lister that these items of information were merely floated by the first source on the basis that they might be true. There is no support for this claim in Mr Lister's notebook.
In my judgment the fact the first source provided him with unfounded information about Nordex obliged Mr Lister to be very cautious about the other information provided by him. The first source was no longer a serving officer and so would have no personal knowledge what investigation of Dr Loutchansky was currently in progress. It appears from Mr Lister's note of the telephone conversation he had with the first source after their meeting in a pub, the first source's knowledge was limited: he is recorded as having said he did not know if Nordex was involved. The first source is also recorded as having said that he "thought" that Nordex came up in the Operation Ivan report. As to the noted comment of the first source "I've no doubt that Nordex is back in on all of this", Mr Lister accepted that this was no more than "an educated informed estimate" which I take to mean a deduction on his part rather than direct knowledge.
In these circumstance it appears to me that, looking at the matter objectively from Mr Lister's point of view, Mr Lister should have appreciated that the first source was a source on whom it would be unsafe to place much reliance. He had proved fallible information and he possessed no inside knowledge.
The second source
The second source had formerly been with the Fraud Squad but I am satisfied that Mr Lister had no reason to suppose that he had been a serving police officer for several years past. Mr Lister described him as an expert on organised crime, who in 1999 was working as a consultant on money-laundering for a City law firm. There was no evidence of this source having had recent experience of police investigations into money-laundering. As with the first source there was no suggestion that he had an axe to grind or that he was being paid.
The information with which the second source provided Mr Lister was as follows:
That Dr Loutchansky had been the subject of an investigation in Britain in the 1990's, in that di Giorgio had been raided by City of London Police after disclosing, on the second source's advice, that he feared that he was being used by Dr Loutchansky to launder large sums of money through off-shore UK companies.
That Nordex set up some 8 to 10 UK off-shore companies related to di Giorgio's concerns about being used for the purposes of money-laundering.
That he believed Dr Loutchansky and Nordex were still under investigation in Britain.
That a Yugoslav front man of Dr Loutchansky had been detained and questioned at London airport.
The second source conceded that he never knew anything about Dr Loutchansky.
Mr Browne submitted that Mr Lister should have viewed the second source with some circumspection since he was apparently breaking his former client's confidences. I do not accept that submission: journalists have to deal with confidence-breakers and whistle-blowers and often receive accurate information from them. Indeed I consider Mr Lister was entitled to treat the second source as a reliable source in relation to the items of information at (i) (ii) and (iv) above which came to him directly from his client di Giorgio. He had to bear in mind, however, that the police raid did not result in any charges against anyone, still less convictions Moreover that information had no bearing on the claim that Dr Loutchansky was involved in the Bank of New York scandal. As to the information at (iii), which information is not mentioned in the Defence or in the witness statement of Mr Lister, I do not consider that Mr Lister ought to have attached any weight to it. The information was communicated in tentative terms and the second source had left the police some years before.
I take Mr Robinson next because; according to the answer of the jury to Q3,. Mr Lister spoke to him before he spoke to The third source.
Jeffrey Robinson is an author of books on a range of diverse topics including "The Merger – How organised crime is taking over the world". He was said by Mr Lister to possess particular expertise on Russian organised crime and to have access to very good sources (many of whom are named in the preface to "The Merger"). It is perhaps some indication of the relative unimportance of Mr Robinson as a source that he was not initially mentioned in the Defence because Mr Lister "completely forgot" about him. As I have already recorded the Defendants initially sought, without justification, to conceal the identity of Mr Robinson.
The information which Mr Lister claimed Mr Robinson provided to him consisted of the following:
that Dr Loutchansky and Mogilevich were linked and had sold SCUD missiles to the Iraqis together;
that the FBI were investigating Dr Loutchansky and/or Nordex in connection with the Bank of New York story;
that NCIS were investigating links between Dr Loutchansky and the Bank of New York scandal.
It was accepted that the information at (i) was provided by Mr Robinson to Mr Lister. The jury found that the information at (ii) and (iii) was also provided by Mr Robinson.
It is accepted on behalf of the Defendants that Mr Robinson was not a pivotal source. I have come to the conclusion that, if he had been dispassionate, Mr Lister would have concluded that Mr Robinson was not a source on whom he should have placed much reliance. He was a writer without any first-hand knowledge of money-laundering. He was coy about the identity of those from whom he obtained the information which he passed on to Mr Lister. Moreover there was real reason to doubt the accuracy of Mr Robinson's claim that Dr Loutchansky and Mogilevich were linked. It is evident from chapter 6 of "The Merger" (which Mr Lister had read) that the supposed link between Dr Loutchansky and Mogilevich was no more than a hypothesis. The book stated in terms that there were "no concrete factual connections" between them. I acknowledge the possibility that Mr Robinson had acquired more information since writing "The Merger" but there was no evidence to support that supposition. I take the view that Mr Lister should have been on his guard as to the reliability of all of the information provided by Mr Robinson because of the apparent contradiction between what was in his book and what he told Mr Lister. Indeed Mr Lister agreed he had been sceptical about the claim that Dr Loutchansky and Mogilevich had sold missiles to the Iraqis.
There was in my judgment another reason to treat Mr Robinson's information with caution. Mr Robinson approached Mr Lister and not vice-versa. It should have crossed the mind of Mr Lister that Mr Robinson might be seeking to publicise his book. Indeed Mr Lister accepted that Mr Robinson had asked him to draw the book to the attention of contact the literary editor of the Times. Furthermore there is in my view some force in the comment made by Mr Browne that, if Mr Robinson really had worthwhile new information, he would have used it himself in a book or newspaper article rather than hand it on a plate to Mr Lister.
The third source
By common consent the third source was the most important. Although Mr Lister declined to name her, he provided a good deal of information about her (so much in fact that I suspect she is readily identifiable). Mr Lister was put in touch with her by an academic who had experience of working with law enforcement officials. Mr Lister testified that she was then working for Interpol in Lyon on a three year secondment from the FBI in, he thought, Washington. Mr Lister did not vouchsafe her rank but said that she was in a senior operational position in Interpol. Mr Lister made some additional claims about her expertise and reliability. But I consider that Mr Lister was gilding the lily in those passages of his evidence.
The jury by its answer to Question 6 found that the third source gave Mr Lister to understand that Dr Loutchansky and/or Nordex were being investigated by the FBI in connection with the Bank of New York scandal. She also told Mr Lister, as is common ground, that Dr Loutchansky and Nordex had been investigated by Interpol. There was only one conversation between the third source and Mr Lister on the topic of Dr Loutchansky and Nordex. The jury also found, in answer to Question 11 (a), that Mr Lister made a note of that conversation. The note was not produced (nor was reference made to it in the Defendants' List of Documents). Mr Lister thought he must have made the note on a scrap of paper which he had subsequently thrown away.
Interpol does not itself investigate crime: its function is essentially to liaise between national police forces and exchange information, as Mr Lister could easily have found out if he did not know already. So it does not appear to me that the third source 's position within Interpol should have been of particular significance for Mr Lister in assessing her credibility. The third source did not give Mr Lister to understand that she had herself been involved in any investigation concerning the Bank of New York. Nevertheless Mr Lister was, in my judgment entitled to assume that, as an FBI officer, she had access to information as to what investigations by the FBI were in progress and was well placed to give him information on that topic. It was suggested that the third source might have had an axe of some kind to grind. But that suggestion appears to be speculative and I reject it.
It was Mr Lister's evidence in chief that the third source told him that she had within the last seven days visited Washington. However, Mr Lister did not say that she claimed to have personal knowledge of such an investigation or even to have spoken to anyone who did have such knowledge. It may have been guesswork or inference on her part. Moreover, in cross-examination Mr Lister described the third source's response to his question about an investigation into Dr Loutchansky and Nordex as "slightly cryptic". He subsequently gave this account of their conversation:
Basically I said to her, "is this worth writing about"? We were talking about Nordex and Dr Loutchansky, and I said, "is this worth writing about"? Before that I had said, "is Interpol investigating Dr Loutchansky and Nordex, do you know if the FBI is", She is, I think she had done something along the lines of laughing, she obviously had something to tell me; she was one of those sources that I had to tease information from. I believe her response was to laugh. My reaction to that, was to throw the question at her which was, "Is this something worth writing about"? and she said, "Yes, it is something worth writing about". I think her exact words were "Yes I believe it would be fruitful to write about that". You know, I was left in no doubt at all what that meant. Even though she wasn't saying explicitly: "Yes I can confirm to you that Dr Loutchansky is being looked at". It was one of those conversations were both sides know clearly what the rules were. She was aware, and I was aware. We subsequently, I believe, had a conversation about the phrasing. She was comfortable with the phrase, "British and American investigators", She knew what I was seeking to do with this information, that it would be published in an article. There was no room for misunderstanding.
I find that account difficult to reconcile with Mr Lister's claim that the third source told him that she had recently been in contact with the FBI on the question of whether Dr Loutchansky and Nordex were being investigated in connection with the Bank of New York scandal. It is also difficult to understand why, if the third source was prepared to speak at all to an English journalist whom she did not know presumably in breach of her duty of confidence, she did not express herself more explicitly.
Taking these various circumstances into account, it is my view that Mr Lister was entitled to regard the third source as a reliable source of the information which she provided in the sense that she was in a position which gave her access to that information. Even so, the Defendants ought as a matter of prudence to have obtained reliable corroboration of the information which had been communicated to them by nods and winks.
The other sources
In my judgment Mr Browne is right in his contention that, in considering the reliability of sources on whom the Defendants did rely, account has to be taken of the sources whom Mr Lister contacted but who did not confirm what the sources upon whom Mr Lister did rely had told him. Mr Browne referred to these individuals as "the dogs who did not bark in the night".
The evidence revealed that there were several apparently well-placed sources who did not confirm the information provided by Mr Robinson to Mr Lister that there were links between Dr Loutchansky and Mogilevich, whether in relation to SCUD missile sales or otherwise. Mr Lister spoke to a source within Europol, which is a law enforcement agency handling criminal intelligence for members of the EU mandated to take action against money laundering activities. Although he had worked on an investigation into Dr Loutchansky and Nordex, this source was unaware if Dr Loutchansky and Mogilevich knew each other. M. Botbol of the Intelligence Newsletter told Mr Lister that he was unaware of any links between them. A Russian businessman, the so-called sixth source, who had knowledge of the activities of the Russian mafia, did not confirm any such link. Mr Bone had sources in the US intelligence services and the Royal Canadian Mounted Police and a congressional investigator but none of them was able to assist in relation to the supposed link.
In regard to the information provided by The third source and by Mr Robinson that Dr Loutchansky and Nordex were being investigated by the FBI in connection with the Bank of New York scandal, Mr Lister spoke to several people who might have been expected to be able to confirm that information. The Europol source told Mr Lister that he would be very surprised if the British security services did look at the Bank of New York scandal. Mr Bone's sources were unable to assist about any FBI investigation. Nor was there evidence that such confirmation was forthcoming from a number of other individuals from the intelligence world to whom Mr Lister spoke, namely Mr Moulette of Financial Action Taskforce, the main global anti-money-laundering organisation; M. Perou of Tracfin, the French equivalent of the NCIS; the previously mentioned M.Botbol and an unidentified officer in the Metropolitan police.
4: the steps taken to verify the story
There appears to me to be a dearth of evidence as to the steps taken by Mr Lister to check the specific items of information most damaging to Dr Loutchansky which found their way into the newspaper, namely the claim that he and/or Nordex were being investigated by the FBI and in London in connection with the Bank of New York scandal and the claim that Dr Loutchansky had links with another mafia boss, namely Mogilevich, and had sold SCUD missile to the Iraqis in conjunction with him.
I accept that Mr Lister spoke to a number of potential informants but there was no clear evidence that he specifically sought confirmation from them as to these claims. In particular there is no satisfactory evidence of any verification of Mr Robinson's claim that Dr Loutchansky had smuggled nuclear weapons either with or without Mogilevich. The evidential basis for the allegation that Dr Loutchansky had business links with Mogilevich was so slender that Mr Lister might have been expected to take steps to verify it. The reference to Dr Loutchansky as "a mafia boss" appears to have been based solely on cuttings seen by Mr Lister. There was no evidence that Mr Lister took steps to verify what the third source told him on the Thursday or Friday before the article of 8.9.99 appeared. There were some leads which might have proved useful which Mr Lister failed to pursue, including Sgt Reeman of the City of London police and an NCIS source who had been recommended to him by Mr Robinson.
But the criticism which in my view can levelled at Mr Lister on this score has to be tempered by a recognition of the difficulty of verifying information provided on a confidential basis by intelligence-related sources. The difficulty about verifying the information should have underlined to Mr Lister and indeed to his editor Ms Maddox the importance of contacting Dr Loutchansky or a representative of his before publication.
5: the status of the information
In Reynolds Lord Nicholls referred to this consideration in the following terms: "The status of the information. The allegation may have been the subject of an investigation which commands respect". By that I take him to mean that it will be easier for a defendant to establish a duty to publish an allegation against an individual if the allegation has been confirmed by a respectable investigating agency or some other tribunal of equivalent standing.
I attach considerable importance to this factor in the context of this case. To the extent that there had been investigations of Dr Loutchansky or Nordex in the 1990s (as there undoubtedly had been) they had resulted in no charges being brought or convictions obtained. If Dr Loutchansky or Nordex was being investigated in connection with the Bank of New York scandal, the investigations were on-going; no conclusions had been arrived at. The stage had not even been reached when consideration had to be given to the question whether there was sufficient evidence to bring charges. The Times itself had not mounted any investigation of the allegations against Dr Loutchansky or sought to assess the strength of the evidence against him.
In terms of "status" therefore the information that Dr Loutchansky or Nordex was in 1999 being investigated in connection money-laundering was relatively low-grade. The same in my opinion is true of the claims that Nordex had been engaged in smuggling nuclear weapons and that Dr Loutchansky was linked to another mafia boss, namely Mogilevich. Indeed these claims were described in the Times article of 8.9.99 as being no more than "allegations". They were in truth wholly unsubstantiated.
6: the urgency of the matter
As Lord Nicholls remarked, news is a perishable commodity not least in the sense that, once a story has appeared in print, it is in journalistic terms no longer news. I accept the evidence of Ms Maddox that the Bank of New York story was developing fast, that a lot of newspapers were working on it and that the Times felt that Dr Loutchansky 's alleged involvement in it should be reported as soon as they could be sure of the story.
I think it right to take account of the natural wish of a newspaper not to be beaten to a story by a rival publication. But it appears to me that to be truly urgent, there has to be some quality about the story itself which makes it imperative or at least highly desirable that the information in question should be made public without delay. Stories exposing malpractice of one kind or another may often qualify as urgent where publication may protect more damage being done.
I am not persuaded that the story about Dr Loutchansky was truly urgent in that sense. It is to be noted that, although the Times was in possession of evidence which Ms Maddox felt was strong enough to publish the story by 3.9.99, publication did not in the event take place until 8.9.99. Ms Maddox explained that she did not feel the story was suitable for publication in the Times on a Saturday.
In my view the story was far from being so urgent that it needed to be published before diligent efforts had been made to obtain Dr Loutchansky 's side of the story.
7: whether comment was sought from the Claimant
It is common ground that no comment was obtained from Dr Loutchansky or from anyone else in a position to speak on his behalf. As Lord Nicholls pointed out in Reynolds, it is not always necessary to obtain a comment from the person about whom allegations are going to be published. In my opinion this was not such a case: the allegations against Dr Loutchansky were of great gravity. The allegations were unproven. Fairness and good journalistic practice required such a comment, providing that Dr Loutchansky or a spokesman on his behalf could be traced.
There will be occasions where it is impossible to make contact with the claimant in advance of publication. I do not accept that this was such an occasion. The place of business of Nordex had been Austria, where Dr Loutchansky had (and continues to have) a residential address. Mr Lister's note referred to Nordex being based in Vienna and Moscow.
Mr Lister gave evidence that that he called international directory enquiries and asked them whether they was any listing for Nordex in Moscow. He did not claim to have asked about a listing for Dr Loutchansky. He was given the number of a company called Nordex Projekt which turned out to have no connection with Dr Loutchansky. Mr Lister also communicated with a Times "stringer" in Moscow called Ms Lagnado. According to the answer of the jury to question 9, all he asked her to do was to find a telephone number for Nordex in Moscow (something which according to his evidence he had already done himself) and to try to find Dr Loutchansky in Moscow.
That was the sum total of the efforts made by the Defendants to contact Dr Loutchansky before publication. Contrary to the evidence of Ms. Maddox, "layers and layers of effort" were not made. In my judgment more strenuous efforts could and should have been made to contact him and obtain a comment. For example the suggestion could have been made to Ms Lagnado that she carry out an internet search in Russian or check the register of companies registered in Moscow. Efforts could and should have made to trace Nordex and Dr Loutchansky in Austria, where Nordex remained incorporated. The Defendants could and should have carried out a Dun & Bradstreet search on Nordex.
Failing contact with Dr Loutchansky himself, there was the possibility of obtaining a comment on his behalf from a spokesman. Although in his witness statement Mr Lister stated that he had looked through the cuttings in the hope of finding a lawyer who might put him in touch with Dr Loutchansky, in his oral evidence Mr Lister said that he had seen reference in American reports to a lawyer named Thomas Spencer Junior. He gave evidence that he did a cuttings search for Mr Spencer but had no success in finding an address or telephone number for him. He did not look up Mr Spencer in any directory of American lawyers. Nor did he enlist the assistance of Mr Bone, who was based in New York. The attempts to trace Mr Spencer were in my judgment deficient.
Mr Lister had been provided by Mr Robinson with the name of an English solicitor who acted for Dr Loutchansky, namely Mr David Cooper who was a senior partner of the London firm Gouldens. Mr Lister gave evidence, accepted by the jury in its answers to Questions 8(b)(c) and (d), that he made searches for Mr Cooper by means of cuttings and by looking in Crawfords and PriceWaterhouseCoopers directories. But these directories list the names of firms rather than individual solicitors and so were of no use. The cuttings did not help either. So Mr Lister was unsuccessful in such attempts as he made to track down Mr Cooper.
I consider that it should have been straightforward for the Defendants to find Mr Cooper. He was a partner in a well-known London firm. The name of his firm could without difficulty have been obtained from the Law Society. There are directories which list individual solicitors by name. The legal department of the Defendants could have been asked to assist. In my judgment the attempts to contact Mr Cooper were insufficient.
8: whether the article contained the gist of the claimants side of the story
Depending amongst other things on the gravity of the charges about to be published, this consideration may often be a weighty one: see Reynolds at p1026a. Indeed it was one of the reasons why the defence of qualified privilege was rejected in that case.
The article of 8.9.99 contained a single paragraph which read: "Mr Loutchansky has repeatedly denied any wrongdoing or links to criminal activity".
Given the seriousness of the (unproven) allegations to be published about Dr Loutchansky, it does not appear to me that the inclusion of a bare denial of that kind was a sufficient statement of Dr Loutchansky's case. There were exculpatory comments which Dr Loutchansky could have made if he had been invited to do so, for example that he had never dealt with the Bank of New York or maintained any account with that bank. Even if neither Dr Loutchansky nor any spokesman could be contacted, there was more which the Times could and in my opinion should have published by way of answer to the allegations. For instance the article could have stressed that Dr Loutchansky has never been convicted or even charged with any of the offences said to have been the subject of investigations. It could have repeated the statement of Dr Loutchansky's US lawyer, Mr Spencer, reported in a Washington Post article which Mr Lister had read, that everywhere in Europe that the allegation that Dr Loutchansky had ties to organised crime had been reported, he had either sued and won or it had been retracted.
9: the tone of the article
In my view no criticism can sensibly be made of the tone of the article: or the articles in Grobbelaar. It cannot be said that the Times was adopting the allegations against Dr Loutchansky (even if the reference to Dr Loutchansky denial of that was a token one). The presentation of the story was not sensational and the language was not immoderate. It is liberally sprinkled with terms such as "alleged", "suspected" and "reportedly".
10: the circumstances of the publication including the timing
I have already dealt with most of the circumstances of the publication of this article. There is no basis for any suggestion that the publication of the article was timed so as to cause particular damage or embarrassment to Dr Loutchansky. There is no allegation of malice made against any of the Defendants.
CONCLUSION IN RELATION TO THE TIMES ARTICLE OF 8.9.99
Having examined in some detail the impact of the various considerations to which Reynolds requires me to have regard, I am now in a position to state my conclusions.
I accept that the article of 8.9.99 dealt with an aspect of the unfolding story of money-laundering on a massive scale through the Bank of New York which was of some public concern, namely what I shall assume to be the fact of an investigation by law enforcement agencies of a second Russian businessman on suspicion of his involvement. I also accept that there was a source for that information upon whom, despite the cryptic way in which she expressed herself, Mr Lister was entitled to place reliance.
But the article was not reporting any finding made against Dr Loutchansky; nor was it a report of conclusions arrived at by the Times as a result of any investigation carried out by its journalists. It was a report or repetition of allegations, suspicions and claims that investigations had been or were taking place. The status of the report, in the sense in which that term was used by Lord Nicholls in Reynolds, was low grade.
In those circumstances it was in my judgment incumbent on the Times to proceed with great caution in publishing any article. I acknowledge that some efforts were made by Mr Lister to obtain corroboration of what his sources had told him. But he had no evidence for the claim that Dr Loutchansky was a mafia boss. There was no convincing verification of the claim that Nordex was suspected of smuggling nuclear arms or of the assertion that Dr Loutchansky was linked to another mafia figure named Mogilevich. There was no evidence that Mr Lister or anyone else at the Times took steps to obtain confirmation of the information provided to Mr Lister by the third Interpol source shortly before the publication of the article.
The limited nature of the corroboration for and verification of the claims in the article meant that it was particularly important that the Times should contact Dr Loutchansky or his representative before publication in order to obtain his side of the story. There was no great urgency. For the reason already given, the efforts made by the Defendants to contact Dr Loutchansky or one of his lawyers were in my judgment inadequate. In the result the story was published with a bare and unconvincing reference to Dr Loutchansky having denied any wrongdoing.
The Times were of course entitled to publish the story. But the Defendants were not in my judgment under any duty to do so and accordingly they are not entitled to the immunity from liability in libel which subject to malice is provided by the defence of qualified privilege.
TIMES ARTICLE OF 14.10.99
Having dealt at some length with the Reynolds considerations as they apply to the first Times article, I can deal more briefly with the same considerations as they apply to the article published in the issue of the Times for 14.10.99.
This second article was headed "Trader linked to mafia boss, wife claims". According to the article the trader was Mr Chernoi and the mafia boss was Dr Loutchansky. As the headline indicates the source of the story was Mrs Chernoi. There was no other source.
The essence of the story is that Mr Chernoi, who is said to be under investigation by Swiss authorities pursuing allegations of money-laundering, was a friend of Dr Loutchansky, who is described as a suspected mafia boss. The article reports (twice) a claim by Mrs Chernoi that her husband had been given access to staff and a chauffeur by Dr Loutchansky when he moved to Israel. A refutation of the allegation against Mr Chernoi by his lawyer is included in the article but none from Dr Loutchansky or his lawyer. The article repeats allegations made in the first article about the alleged involvement of Nordex in money-laundering and smuggling nuclear weapons.
With that précis of the article of 14.10.99, I turn to the Reynolds considerations as they apply to it.
1. the seriousness of the allegations
The allegations mirror some those contained in the first Times article and are in my view equally serious. In the context of the article as a whole the allegation that Dr Loutchansky is a friend of and linked to another businessman suspected of involvement in money-laundering is also a serious one.
2. the nature of the information and the extent to which the subject matter is of public concern
In my view there is a distinction to be drawn between the first and second Times articles in this respect. The article of 14.10.99 was not reporting a development in the Bank of New York story. To the extent that it was repeating what had already been published about Dr Loutchansky five weeks earlier, I accept that the subject matter was of some public concern. But the main point of the report was the claim that Dr Loutchansky was a friend of or had links to another person being investigated for money-laundering. That seems to me to fall some way short of being a matter of legitimate public concern. Providing a chauffeur and staff to a friend or associate does not strike me as being a matter of great moment even if the beneficiary is under investigation.
3. The reliability and motivation of the source of the information
Mr Lister obtained a copy of an intelligence report which named Mr Chernoi and which gave telephone numbers for him and his wife. He failed to contact Mr Chernoi but managed eventually to prevail on Mrs Chernoi to speak to him. She was the sole source for the information published about a link between her husband and Dr Loutchansky.
It appears to me that, if he had considered the matter objectively, Mr Lister would have appreciated that Mrs Chernoi was not a source upon whom he could rely. She was, as he knew, in the throes of divorce proceedings and so was unlikely to be favourably disposed towards her husband. Indeed the allegation had been made against her that she had paid £400,000 to have him killed. Whilst I accept the evidence of Mr Lister that Mrs Chernoi did not volunteer her information, there was an obvious possibility that she had an axe to grind, namely causing trouble for her husband.
Moreover Mr Lister had read an article which had appeared in the Independent on Sunday for 10.10.99 in which she denies having been involved in mafia money-laundering and makes self-evidently absurd claims about her own poverty. I do not accept that Mrs Chernoi was or should have appeared to Mr Lister to be a reliable source.
4. the steps taken to verify the story
Mr Lister obtained the information from Mrs Chernoi very shortly before the publication of the article on 14.10.99. The only step which, according to his own evidence, he took to verify the claim she had made about the connection between her husband and Dr Loutchansky was that he said he checked it with his 3rd Interpol source. By its answer to Question 10 the jury rejected that evidence. Given what I have found to be the unreliability of Mrs Chernoi as a source, steps should in my view have been taken to verify her information. No such steps were taken.
Although the article stated in terms in its opening paragraph that Dr Loutchansky and Mr Chernoi were friends, this was not something which Mrs Chernoi told Mr Lister, as he conceded. There was no evidence for that assertion.
5. the status of the information
The status of the information was that it consisted of unverified assertions by a woman about the husband at a time when divorce proceedings were pending.
6. the urgency of the matter
It does not appear to me that there was any urgency about publishing what Mrs Chernoi told Mr Lister. It had little bearing on the Bank of New York story. If the story was worth publishing, it could easily have waited.
7. whether any comment was sought from Dr Loutchansky
No comment was obtained from Dr Loutchansky or from anyone else on his behalf nor was any attempt made to do so.
8. whether the article contained the gist of Dr Loutchansky 's side of the story
It did not.
9. the tone of the article
The tone of the article was in my view unexceptionable.
10. the circumstances of the publication including the timing
The publication of the article was not timed so as to cause damage or embarrassment to Dr Loutchansky. I do not consider that there were any other circumstances surrounding the publication which are relevant to the question which I have to decide.
CONCLUSION IN RELATION TO THE TIMES ARTICLE OF 14.10.99
For reasons which will be apparent from what I have said in relation to the various Reynolds considerations, I have come to the clear conclusion that the Defendants were not under a duty to publish the article of 14.10.99 and that in consequence the defence of qualified privilege is not available in respect of it.
In the first place Mrs Chernoi, the sole provider of that which was new in the article of 14.10.99, was not a source upon whom a journalist could place reliance. There was a clear possibility that her matrimonial difficulties might have led her to use the columns of the newspaper to cause embarrassment to her husband. Her alleged involvement in money-laundering was a further reason to doubt her veracity. In any case the information which she relayed to Mr Lister was anecdotal and of no particular significance. The loan or gift of the services of a chauffeur and other staff may have been devoid of any sinister connotations. It may have been a commercial arrangement or an act of generosity. No enquiries were made to find out if there was anything sinister about the alleged connection. If the story was significantly newsworthy to find a place in the column of the Times, then it was incumbent on the Defendants to seek an explanation or comment from Dr Loutchansky. No attempt was made to do so.
Toogood v Spyring (1834) 1 CM&R 181
Adam v Ward (1917) AC 309
Stuart v Bell (1891) 2 QB 341
Blackshaw v Lord (1984) QB 1
Reynolds v TNL (1998) 3 WLR 862
McCartan Turkington Breen v TNL (2000) 3 WLR 1670
Sunday Times v United Kingdom (No1)  2 EHRR 245
Rantzen v Mirror Group Newspapers Ltd  QB 670(CA)
Been v Times Newspapers Ltd  3 W.L.R. 1670
Sunday Times v. United Kingdom (No2)  EHRR 229
Bladet Tromso & Stensaas v. Norway  29 EHRR 125
Douglas v Hello Magazine (2001) 2 WLR 992
Saad al Fagih v HH Saudi Research and Marketing (28.7.00 at paras 55-62)
Grobbelaar v News Group (2001) EWCA Civ 33
GKR Karate v Yorks Post No 2 (2000) EMLR 410
Bladet Tromso and Stenaas v Norway (2000) 29 EHRR 125
Francome v MGN (1984) WLR 982
HRA 1998: s.12
D Browne QC and Mr H Tomlinson for Claimant (instructed by Olswang)
Mr R Spearman QC and Mr. R Parkes for Defendants (instructed by Reynolds Porter Chamberlain)
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