Bokova v Associated Newspapers Ltd

This is a preliminary issue on the meaning of articles in a libel action brought by the Claimant, Irina Bokova (“Mrs Bokova”) against the Defendant, Associated Newspapers Limited (“Associated Newspapers”). The articles were published on Mail Online from 13 April 2016 and in the Daily Mail on 13 April 2016. At the material time Mrs Bokova was Director-General of UNESCO and a candidate for appointment as United Nations Secretary-General. Associated Newspapers are the publishers of the Daily Mail and Mail Online.

On 30 November 2017 Mrs Bokova made an application for: (1) a determination of the actual meaning of the words complained of as a preliminary issue; (2) an order striking out the defence of truth and other paragraphs of the Defence; (3) an order striking out paragraphs of the defence relating to mitigation of damages; (4) a consequential order for judgment for damages to be assessed; and (5) an injunction restraining publication.

The wording of the application made by Mrs Bokova on 30 November 2017 for the hearing of the preliminary issue was for “an order … for the determination by way of preliminary issue of the actual meaning of the words”. Associated Newspapers agreed that meaning should be determined as a preliminary issue and the other applications should be heard at the same time, but no order for the hearing of a preliminary issue was made by the Court. This meant that the parties turned up for a hearing of the preliminary issue on meaning before me on 8^th February 2018 and for the hearing of the other applications without an order having been made for the preliminary issue to be heard.

The approach taken by the parties to the application for a preliminary issue, which mirrors the approach taken by other parties in similar applications, raises a point of procedure. Parties must seek an order for the hearing of the preliminary issue. This is because the making of such an application to the Court for the hearing of the preliminary issue enables the Court, which has powers and duties of active case management, to determine whether a preliminary issue should be heard, see Hope not Hate v Farage [2017] EWHC 3275 (QB) at paragraphs 35 and 36.

In this case I agree with the parties that hearing a preliminary issue on the meanings of the articles was a sensible step to be taken. This is because it will enable the statements of case to engage with the meanings of the articles rather than a range of possible meanings. I therefore agree that the Court would have directed a hearing of the preliminary issue. However in my judgment a Court, if it had had the chance, would not have also directed an immediate hearing of the application for the strike out application and application for judgment. This is because at least part of the strike out application will depend on the actual meaning of the articles as determined at the preliminary issue. Indeed at the hearing it became common ground that the applications to strike out and for judgment should be adjourned so that the Court could give a ruling on the meaning of the articles.

Further a Court deciding whether to order the hearing of a preliminary issue would also have had case management powers (pursuant to CPR 1.1(2)(b) and CPR 1.4(h); CPR 3.12, CPR 3.13 and PD3E at paragraph 3(a)) to make an order requiring the parties to file and exchange costs budgets for the application. As it was the parties lodged costs schedules for all of the applications for the hearing before me which totalled over £105,000 for Mrs Bokova and over £50,000 for Associated Newspapers. I recognise the importance of the issues for the parties, which included on the face of the applications an application for judgment and an injunction. However the sums in the costs schedules are very substantial sums which do not have the appearance of being proportionate to the hearing of a preliminary issue on meaning. Excessive and disproportionate costs should not be allowed to become or remain a barrier to either bringing or defending claims for libel. Since the hearing of this action an order providing for costs budgets for a preliminary issue on meaning has been made in other proceedings (Arnold Mballe Sube v News Group Newspapers, order dated 14 February 2018). It is to be hoped that costs budgets, and costs management if necessary, will ensure that the costs of preliminary issues are proportionate.

As it is, I have heard and determined the preliminary issue on meaning, and the order that I make will also include an order providing for the hearing of that preliminary issue.

Both parties lodged Skeleton Arguments at some stage on Wednesday 7 February 2018, which was the day before the hearing before me. This was in breach of the requirement to file Skeleton Arguments “not later than one day before the hearing” as provided for in the Queen’s Bench Division Guide at paragraph 12.3.7(2). Further the Guide provides that Skeleton Arguments should be “as brief as the issues allow and not normally be longer than 20 pages …” at paragraph 12.3.8 (4). These Skeleton Arguments did not comply with that provision, numbering 39 pages for Mrs Bokova and 34 pages for Associated Newspapers.

Late Skeleton Arguments do not normally provide assistance to the Court because the Court will not have time to read them. As a matter of fairness to the parties I should note that because I was sitting in Court on 6February and was in Court on 7 February giving judgment and was then dealing with “immediates” (urgent applications to the Administrative Court), the late filing was not material to when I could read the Skeleton Arguments. However the excessive length of the Skeleton Arguments, especially given the limited time to read them, was very unhelpful.

In the Court of Appeal in Raja v Van Hoogstraten [2008] EWCA Civ 1444; [2009] 1 WLR 1143Mummery LJ commented on very long Skeleton Arguments (the one in that case was 110 pages long) at paragraph 125-127 of the judgment saying: “Practitioners who ignore practice directions on skeleton arguments… and do so without the imposition of any formal penalty are well advised to note the risk of the court’s negative reaction to unnecessarily long written submissions … An unintended and unfortunate side effect of the growth in written advocacy … has been that too many practitioners, at increased cost to their clients and diminishing assistance to the court, burden their opponents and the court with written briefs”.

The Court of Appeal revisited the issue in Standard Bank plc v Via Mat International Ltd [2013] EWCA Civ 490; [2013] 2 All ER (Comm) 1222. Moore-Bick LJ said at paragraph 27 “… in general a short, concise skeleton is both more helpful to the court and more likely to be persuasive than a longer document … I wish to draw attention to the provisions of Practice Directions … Failure to comply with them is likely to be penalised in costs”. These rules apply to all fields of law, see the judgment of the Court of Appeal in Tchenquiz v Director of the Serious Fraud Office [2014] EWCA Civ 1333; [2015] 1 WLR 838 at paragraph 10. In that case the Claimants were prevented from recovering the costs of a non-compliant Skeleton Argument.

I should balance my remarks about the length of the Skeleton Arguments and record that I am very grateful to Sir Edward Garnier QC and Mr Atkinson, Mr Andrew Caldecott QC and Mr Glen, and their respective legal teams, for the succinct and helpful oral submissions.

I have set out below the text of the online article. The lettering and the numbers were added by the parties for ease of reference.

“Putin ally in UNESCO crony row is favourite to take top job at United Nations when Ban Ki-moon steps down at the end of this year

The text of the Daily Mail article is set out below:

When deciding the meaning of words, a judge is providing written reasons for the Judge’s conclusion as to the meaning to be attributed to the words sued upon. A Judge should not fall into the trap of conducting an over-elaborate analysis of the various passages relied on by the respective protagonists. The meaning is to be determined from the viewpoint of the layman, not by the techniques of a lawyer, see Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17 at paragraph 53. The exercise has been described as one of ascertaining the broad impression made on the hypothetical reader by the words taken as a whole. The natural and ordinary meaning of words includes what the reasonable man will infer from the words, see Gatley on Libel and Slander, 12^th Edition, at paragraph 3.18. It was common ground that the Court is entitled to reach its own conclusions on meaning, and is not required to adopt meanings advanced by either party.

The applicable principles were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14:

Charleston v News Group Newspapers [1995] 2 A.C. 65 provides that the meaning of the article was to be taken from the article as a whole, and that it is not permissible to take a headline in isolation from the text of an article. It also reaffirmed the principle that although different readers may understand the article to mean different things, the meaning understood by the hypothetical reasonable reader is the single meaning from the article for the purposes of libel, see Charleston at page 71G.

The Court should have proper regard for context, see paragraphs 12 and 13 of Bukowsky v Crown Prosecution Service [2017] EWCA Civ 1529; [2018] EMLR 5.

It was apparent from the submissions to me that there was a difference between the level of Chase (from Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11) meaning attributed to the article. The Chase levels of meaning were derived from the decision in Lewis v Daily Telegraph [1964] AC 234.

At paragraph 45 of Chase Brooke LJ identified that the sting of a libel may be capable of meaning (1) that the Claimant has committed the act; (2) that there are reasonable grounds to suspect that the Claimant has committed the act; (3) that there are grounds for investigating whether the Claimant has committed the act.

As Gatley at paragraph 3.28 points out “the line between level 2 and level 3 meanings can be somewhat blurred”, and meanings do not need to fit into precise pigeon holes. As a variation on ground 2 reference has been made to “cogent grounds to suspect the Claimant”, see Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB). On other occasions that has been referred to as a Chase level 2A meaning. The relationship between the repetition rule and Chase meanings was addressed in Brown v Bower [2017] EWHC 2637 (QB); [2017] 4 WLR 197. In that case it was held that there were “grounds to suspect”, see paragraph 41(iii) of Brown v Bower, but such a meaning was not advanced by either side to me, and the practical difference between “reasonable grounds to suspect” and “grounds to suspect” may be more imagined than real. It is important to remember that the Chase levels are a distillation from the judgment of Lord Devlin in Lewis v Daily Telegraph and are designed to assist in determining meaning, and they are not a straightjacket. Everything depends on reasonableness, context and the words used, as is apparent from Lewis v Daily Telegraph,Jeynes and Bukovsky.

Mrs Bokova has pleaded that the online article has the following meanings:

Associated Newspapers contested those meanings save for the one set out at (6). In particular it was submitted that Mrs Bokova’s meanings imputed guilt (Chase level 1) whereas reasonable grounds to suspect (Chase level 2) was the most that the words could bear in many respects.

Both Sir Edward Garnier and Mr Caldecott highlighted certain passages in the online article on which they relied. Sir Edward Garnier asked me to take as the context the fact that this was a “hatchet job” and to take account of the cumulative effect of all that was being said against Mrs Bokova. Mr Caldecott accepted that the article was not a friendly article, but warned against impermissible reading up from one distinct meaning to another.

In relation to the meaning of the article published in the Daily Mail Mrs Bokova’s meaning was that “there were strong grounds to suspect that the Claimant was personally guilty of fraud in relation to the appointment of Ana Luiza Thompson-Flores as her assistant director-general for strategic planning”. The Defendant contended that the article permitted only a finding of reasonable grounds for suspecting fraud.

The parties referred to a number of paragraphs of the online article including bullet point (c) and paragraphs 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 37 and 39.

It is to be noted that there was a reference to secret documents showing a demand for a fraud inquiry in relation to the decision to make Ana Luiza Thompson-Flores Mrs Bokova’s assistant director-general. There were references to suspicious embellishments and mysterious rewriting of criteria and the fact that the investigations department to whom Mr Sudders had reported had called for a comprehensive external independent investigation. There was the use of the phrase “appointing our man, never mind they are a sham”. All of this was noted to have triggered concern and the UK had not set out its position in relation to Mrs Bokova.

In my judgment, even taking account of the other matters set out in the article and addressed below, a reasonable reader would not take this to mean that Mrs Bokova was guilty of fraud. This is in part because these matters are reported to require investigation and to be causing concern rather than being matters which are a complete bar to Mrs Bokova’s appointment as Secretary-General. Further in my judgment the meaning of the article moves beyond grounds for investigating. This is because a report was made to the investigations department and they had concluded that there was a case for comprehensive external independent investigation.

I did consider whether the reasonable reader would take this to mean “strong” or “cogent” grounds to suspect fraud, or “reasonable” grounds to suspect fraud (if indeed there is any practical difference between them). I have decided that this is a straightforward Chase level 2 and “reasonable grounds”. This is because there is nothing to show that the grounds to suspect were strong grounds as opposed to reasonable grounds.

In my judgment this article means “there are reasonable grounds to suspect that the Claimant was guilty of fraud in relation to the appointment of Ana Luiza Thompson-Flores as her assistant director-general for strategic planning”.

The parties referred to a number of paragraphs of the online article including paragraphs 15, 16, 39 and 40 of the article.

When dealing with Mrs Bokova’s CV the article said “Embarrassingly Mrs Bokova was recently forced to correct a ‘mistake’ on her own CV – published on UNESCO’s website for six years – falsely claiming she was Bulgaria’s Minister of Foreign Affairs from 1995 to 1997. In fact she had been only `acting’ foreign minister for just a few months. Another untruth concerns …; (paragraphs 15 and 16) … A spokeswoman for Mrs Bokova … blamed the CV mistake on Bulgaria’s foreign ministry” (paragraphs 39 and 40).

Mr Caldecott pointed out that matters might be untrue, but not a lie (in the sense of being a dishonest false statement), and submitted that this article meant that there were reasonable grounds for suspecting Mrs Bokova of dishonestly putting false information in her CV about being Minister of Foreign Affairs. I agree that information might be untrue without being a lie. However in this case the reader knows that the information is wrong because Mrs Bokova was only acting foreign minister for a few months and is told that her claim to be Minister of Foreign Affairs is a false claim. The reasonable reader would know that the difference between 2 years and a few months is not the sort of innocent inaccuracy that can be made in a CV. In my judgment the reasonable reader would find the false statement to be a lie by Mrs Bokova and not an innocent error because the reader is also told that the CV was on the website for 6 years, showing that Mrs Bokova must have known about it. Finally the reader was told that it was a `mistake’ (using inverted commas) and the reader is told that it was an untruth which, in the context of the article, which includes the next untruth, means a lie as appears below.

In my judgment this article means that “the Claimant made a dishonest false statement in her CV by claiming that she was Bulgaria’s Minister of Foreign Affairs from 1995 to 1997”.

The parties referred to a number of paragraphs of the online article including paragraphs 16, 17, 18, 19, 20, 21 and 22 in relation to the number of visits, and in relation to the suggested meaning about being a spy or puppet the parties referred to the whole of the article.

The article tells the reader that Mrs Bokova’s spokeswoman issued an emphatic statement saying Mrs Bokova had only been to Russia 5 times, which the reader is then told was “simply untrue” and shown to be so by photographic evidence. Further when asked to explain her “false statement” the spokeswoman offered no answer showing that it was not an innocent error. I therefore accept that the meaning of the article is that there was a lie (in the sense of a dishonest false statement) about the number of visits to Russia.

Although spokespersons acting on behalf of another person can make inaccurate statements and tell lies without the others being implicated in the lie, in my judgment this is not the meaning of this article. This is because there was nothing to suggest that the spokeswoman was not getting information from Mrs Bokova and everything to suggest that Mrs Bokova’s spokeswoman was getting information from Mrs Bokova. This is because the reader is told that Mrs Bokova’s travel movements stopped being published, and she was a supporter of President Putin of Russia which was the country to which the false statement related showing Mrs Bokova’s involvement in the false reporting about the number of visits.

However I do not find that the article means that Mrs Bokova lied to cover up “visits she secretly made to Moscow to report to the Russian Government and President Vladimir Putin about what happened at Executive Board Meetings of UNESCO just after they took place, such visits also being improper and in bad faith as regards UNESCO”. It is right to note that the article makes it plain that Mrs Bokova and Mr Putin are fans of each other (Mrs Bokova being a “darling” of Mr Putin and Mrs Bokova attending Mr Putin’s Second World War victory parade which had been snubbed by most world leaders) or, as Mr Caldecott put it in submissions, the article shows that they were members of a mutual appreciation society. It is also right to note that the article reports that Mrs Bokova was travelling to Russia after virtually every Executive Board meeting and the visits were not declared, but it is a very substantial leap from those matters to suggest that Mrs Bokova was travelling to report what happened at the Executive Board Meetings to the Russian Government and President Putin improperly and in bad faith. This is because there is nothing to suggest a meeting with the Russian Government or President Putin. Further the reasonable reader would not immediately assume that UNESCO was dealing in secret matters. In my judgment a reader would have to be unduly suspicious to come to the meaning contended for by Mrs Bokova.

When asked about this Sir Edward Garnier linked it to the suggested meaning that Mrs Bokova was a spy or puppet of President Putin. He referred to clues in the article including the references to Mrs Bokova studying at the Moscow state university at a time when it was a recruiting ground for the KGB (paragraph 30), studying with fellow students who were strong Putin supporters (paragraph 31), being energetic at University (paragraph 32), Mrs Bokova’s comment that her time in the USSR was very interesting (paragraph 33) and that her candidacy was being promoted by the Kremlin (paragraph 35). Those parts of the article referring to Communist nomenklatura, Mrs Bokova’s father’s role as editor of a Communist newspaper, and Mr Mitchell’s description of Mrs Bokova were also highlighted.

I should record that when I first read the article the suggested meaning about Mrs Bokova being a spy or puppet simply did not occur to me. I did consider whether I was being naïve (see Jeynes) but noted that there are contra-indicators in the article to the proposition that Mrs Bokova is a spy or puppet of Mr Putin. These include the statements that Mrs Bokova is reported to be a “darling” of Mr Putin, which is not the usual description of either a spy or a puppet, and that Mrs Bokova decided to show public support at the Second World War victory parade (paragraph 18) which indicates her independent thinking. In my judgment a reader would have to be unduly suspicious to conclude from the matters relied on by Sir Edward Garnier that Mrs Bokova was either a spy or a puppet.

In my judgment the article means that “the Claimant was party to making dishonest false statements about the number of her visits to Russia since becoming Director-General of UNESCO”.

The parties referred to a number of paragraphs of the online article including paragraphs 28, 29 and 40 of the article.

The article reports that, by contrast to UNESCO’s dire finances, Mrs Bokova’s personal wealth is in great shape (paragraph 28) and that in 2012 and 2014 she bought 2 Manhattan apartments for $2.4 million (£1.5 million) in cash. Further her son paid off a £540,000 mortgage in just 4 years (paragraph 29). The article reports a statement by a spokeswoman to the effect that the purchase of all family properties was fully justified by their income (paragraph 40).

Sir Edward Garnier contended that this was a Chase level 1 meaning to the effect that Mrs Bokova was guilty of corruption because she had bought two expensive Manhattan apartments in a very short period. However that ignores the fact that there is a reported comment that the purchases were fully justified by family income. It is right that, notwithstanding this explanation, the fact of the purchase has been reported, next to the contrast between the dire finances of UNESCO and Mrs Bokova’s personal wealth.

I note that there is nothing in the article to explain how Mrs Bokova was able to pay £1.5 million in cash for 2 apartments in 2 years. Mr Caldecott suggested that Mr Bokova’s husband might have been very wealthy from legitimate sources of income. If so that does not explain why Mrs Bokova’s personal wealth is in great shape and why Mrs Bokova, and not her husband, was purchasing the apartments. There is nothing about a husband and his wealth beyond the short reference to all family purchases being justified by their income. All of this means that there are reasonable grounds to suspect the use of tainted or illegal monies to purchase the apartments and pay off the son’s mortgage, because without such funds Mrs Bokova would not be able to afford the apartments or pay off her son’s mortgage. Therefore this is more than just grounds to investigate (a Chase level 3 meaning) the purchase of the apartment and pay off her son’s mortgage and is a Chase level 2 meaning.

In my judgment the article means that “there are reasonable grounds to suspect that the Claimant has used tainted monies to purchase two Manhattan apartments and help her son pay off a £540,000 mortgage”.

The Claimant’s meaning about bringing UNESCO into disrepute in relation to the international prize was common ground between the parties. I accept that this is the meaning of the article.

In these circumstance in my judgment the article meant that “the Claimant was personally responsible as Director-General for bringing UNESCO into disrepute by naming an international prize after “Equatorial Guinea’s dictator Teodoro Obian Nguema, who encourages rumours that he eats the flesh of his enemies””.

As appears above there is only one relevant meaning of the Daily Mail article which is relied on. It was effectively common ground that the meaning of the Daily Mail article was Chase level 2, but there was a dispute about whether the meaning was “strong” grounds to suspect of “reasonable” grounds to suspect.

It is to be noted that there was a reference to secret documents reflecting grave concern and the fact that British diplomats have demanded a fraud inquiry after the decision to make Ana Luiza Thompson-Flores her assistant director-general. There were references to suspicious embellishments and mysterious rewriting of criteria and the fact that the investigations department to whom Mr Sudders had reported had called for a comprehensive external independent investigation.

I agree that this means that there are grounds to suspect fraud. I have decided that this is a straightforward Chase level 2 and “reasonable grounds”. This is because there is nothing to show that there were strong grounds to suspect as opposed to reasonable grounds to suspect.

In my judgment this article means “there are reasonable grounds to suspect that the Claimant was guilty of fraud in relation to the appointment of Ana Luiza Thompson-Flores as her assistant director-general for strategic planning”.

For the detailed reasons set out above the online article has the following meanings:

The Daily Mail article had the meaning “there are reasonable grounds to suspect that the Claimant was guilty of fraud in relation to the appointment of Ana Luiza Thompson-Flores as her assistant director-general for strategic planning”.