Sobrinho v Impresa Publishing SA [2016]
In Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) (22 January 2016) the matter came before Mr Justice Dingemans and concerned a libel claim against the publisher of a newspaper incorporated in Portugal and publisher of the Portuguese newspaper “Expresso”. The Claimant is an international banker born in Angola and a citizen of Portugal, resident in Switzerland. He was employed by, until August 2014, the second largest bank in Portugal, becoming the CEO and President of the Executive Board of a subsidiary until 2012. In 2013 he became the Executive Chairman of another bank in Angola and founder and chairman of a registered charity in London.
Mr Justice Dingemans noted the newspaper had a circulation of less than 90,000 with a hard copy circulation within England and Wales approximately 136. The paper was available to subscribers on the Defendants’ websites and he observed there were 52 digital subscriptions within this jurisdiction.
The Claim referred to an article in the newspaper dated 7th June 2014, also available on the subscription website from that date.
The Claimant required a retraction and apology. He commenced proceedings in this jurisdiction on 4th July 2014 which did not include permission to serve out of jurisdiction. This was amended and reissued with the Particulars of Claim on the 14th July 2014.
During August 2014 the bank collapsed requiring the central bank in Portugal to bail it out which affected the Portuguese economy causing much public anger. A public inquiry was subsequently held in October 2014.
On the 5th September 2014 the Defendant made an application to strike out the proceedings in England and Wales.
On the 18th December 2014 the Claimant appeared before a televised Inquiry in Portugal which Mr Justice Dingemans observed had the effect of clarifying matters to Institutions and friends.
On the 9th February 2015 the Claimant issued civil proceedings for libel in Portugal with a claim for damages of 500,000 euros.
A report of the Inquiry was issued on the 29th April 2015.
The Claimant on the 30th April 2015 discontinued his libel proceedings in Portugal because of the coverage of the public inquiry as it was clear, others activities had led to the Banks collapse.
The Defendant complained that the circulation within this jurisdiction was very tiny compared to Portugal where proceedings had been discontinued. The Claimant contended that he had “a reputation in England as a philanthropist and as Chairman of the Board of Trustees of PEI which he wants to vindicate, and that by discontinuing the proceedings in Portugal he was acting reasonably and properly”.
Master McCloud made an Order on the 10th June 2015 for the trial of preliminary issues:
“(1) the meaning of the words complained of;
(2) whether section 1 of the Defamation Act 2013 (“the 2013 Act”) was satisfied; and
(3) whether the action should be dismissed as an abuse of process”.
Mr Justice Dingemans noted that the article was published the 7th June 2014 and shown on the Defendant’s website from that date. He observed that deciding a meaning should be from the viewpoint of the layman. He referred to the principles summarised by Sir Anthony Clarke Master of the Rolls in Jeynes:
- The governing principle is reasonableness.
- The hypothetical reasonable reader is not naïve but he is not unduly suspicious.
- Over-elaborate analysis is best avoided.
- The intention of the publisher is irrelevant.
- The article must be read as a whole, and any ‘bane and antidote’ taken together.
- The hypothetical reader is taken to be representative of those who would read the publication in question.
- the court should rule out any meaning which, ‘can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation
- it is not enough to say that by some person or another the words might be understood in a defamatory sense.
He observed that the submissions had raised issues as to whether the articles meant the Claimant
“ had misappropriated funds and whether he had done so fraudulently”.
He continued that these issues engaged what is referred to as the Chase Level meanings from the case of Chase v NGN (2003):
- Chase Level 1 – the person has committed a wrongful act
- Chase Level 2 – there are “reasonable grounds to suspect”
- Chase Level 3 – there are “reasonable grounds to investigate”
He considered that the article meant that
“there are reasonable grounds to suspect that Mr Sobrinho granted suspect loans for the benefit of himself, his family and many companies under his control fraudulently. This was my impression when reading the article as a whole”.
In considering all the circumstances he determined that the article had the Defendants meaning in sub-paragraph 1 and the Claimant’s meaning for sub-paragraph 2:
“(1) the Claimant as Chief Executive Officer of BESA with the other directors of the bank failed incompetently in the governance of BESA, by allowing BESA to grant loans of some US$5.7 billion without proper compliance with internal regulations or procedures, without any or any adequate record-keeping, and without adequate collateral, thereby leaving the bank (a) with 80 % of its loan portfolio at risk of being irrecoverable and with the obvious risk that funds had been misappropriated; and (b) requiring a sovereign guarantee from the Angolan state;
and (2) misappropriated many multiple millions of dollars from funds held by the bank, in the form of granting suspect loans and pillaging hundreds of millions of dollars in cash withdrawals, against the bank’s interests and for the benefit of himself, his family and many companies under his or their control and there are reasonable grounds to suspect that he did so fraudulently.”
He considered the issues relating to Serious Harm under s.1 of the Defamation Act 2013:
(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
He then examined the legal principles in Jameel, where there has been an abuse of process in proceedings which serve no legitimate purpose. He noted that in the case of Jameel
“The test proposed in that case and accepted by the Court was whether “a real and substantial tort” had been committed in the jurisdiction” with the test being expressed in many different ways, such as whether “the game is worth the candle”,
He considered the Claimant’s reputation within this jurisdiction noting that there was no legal requirement to show a reputation predating the publication of the article. The Claimant had adduced evidence showing all the institutions and areas he had been involved with. He noted that the Claimant’s daughter was studying in London which meant the Claimant and his wife visited monthly, staying a week. He observed that the Claimant attended various events in London which “events pre-dated and post-dated the publications on 7th June 2014”.
He examined circulation noting that the evidence did not suggest an “enormous circulation and readership” for that publication.
He observed that the Claimant’s reputation had been vindicated in Portugal because of the Public Inquiry and television coverage. His impression was that the Claimant discontinued the civil proceedings in Portugal as
“he had achieved all that he could have hoped to, and perhaps more, by his evidence in the Parliamentary inquiry and the coverage of his evidence in the Portuguese media. The continuation of the civil proceedings in Portugal was no longer worth the time, effort and money”.
Mr Justice Dingemans considered that, although the Claimant’s reputation was restored in Portugal, he did not understand why this had not been sufficient to satisfy the Claimant within this jurisdiction since the media available in Portugal would have been available to those in England and Wales who read the article.
He considered that the article’s publication in England and Wales had not caused serious harm to the Claimant’s reputation nor would be likely to do so as at December 2015 and January 2016.
He considered that an article in a reputable paper might well cause serious harm to a banker and philanthropist such as the Claimant but the limited publication within this jurisdiction may have avoided causing him serious harm. Further, the article included the Claimant’s defence which might have lessened any detrimental effect upon him.
He concluded that pursuing the proceedings is “not worth the candle” and is a Jameel abuse of process”. He refused permission to re-amend the Particulars of Claim.