Case background
In the recently decided case of Eurasian Natural Resources Corporation Plc v Tom Burgis and another [2022], Mr Justice Nicklin was tasked with determining whether the book written by the First Defendant and published by the Second Defendant under the name ‘Kleptopia: How Dirty Money is Conquering the World’ contained defamatory statements about the Claimant. The Claimant is a large international company that deals in ore. The Claimant claimed that the book contained statements that held the following natural and ordinary meanings:
“(a) the Claimant had Andre Bekker, James Bethel, and Gerrit Strydom murdered to protect its business interests; alternatively
(b) there are strong grounds to suspect that the Claimant had Andre Bekker, James Bethel, and Gerrit Strydom murdered to protect its business interests; and
(c) there were reasonable grounds to suspect that the Claimant had Jon Mack poisoned.”
The Court, therefore, listed the matter for the following preliminary issues to be decided before the Defendant was required to submit a formal pleading in response:
“(1) whether the statements complained of at paragraph 20 of the Claimant’s Particulars of Claim refer to the Claimant and, if so;
(2) the natural and ordinary meaning of the statement complained of;
(3) whether the statement complained of in any meaning found is defamatory of the Claimant at common law; and
(4) whether the statement complained of is or includes a statement of fact or opinion.”
In practice, when handing down his judgment, Mr Justice Nicklin focussed on one issue to start with and that was whether any allegations made referenced the Claimant at all. Once the Court had decided that issue, the judge decided that he did not need to deal with the other preliminary issues set out above. As for the law that the judge had to apply in deciding this preliminary issue, the judgment refers to the following principles:
“To those well-established principles Ms Page has also reminded me of several other statements of the law which are uncontroversial:
(a) A wider degree of latitude is given to the words to convey particular meanings where the words published are imprecise, ambiguous, loose fanciful or unusual…
(b) Where the publisher invites the reader to adopt a suspicious approach, a reader may be guided to the real explanation of what has taken place; an explanation which the publisher did not care or did not dare to express in direct terms…
(c) In such cases it may be reasonable for the reader to indulge in a degree of conjecture or guesswork which might otherwise not be permitted…
(d) The statement complained of must be recognisable as opinion rather than a statement of fact…
(e) Opinion is something that is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark, or observation…
(f) The ultimate determinant is how the statement would strike the ordinary reasonable reader, that is whether the statement is discernibly opinion…”
As to the requirement that the words complained of must refer to the claimant in a defamation claim, I can take the statement of legal principles from Monir -v- Wood:
“[95] To be actionable, words in a publication that are alleged to be defamatory must refer to the claimant. If s/he is not named, reference to the claimant can be intrinsic – i.e. from the words themselves (e.g. X’s father is a thief) – and/or established by the proof of extrinsic facts, knowledge of which would cause a reasonable reader to understand the words to refer to the claimant…
[96] Understanding the law relating to reference must start with the appreciation of the fundamental principle that the test is objective. The question is whether the hypothetical ordinary reasonable reader (if necessary, attributing knowledge of particular extrinsic facts) would understand the words to refer to the claimant…”
“Millett -v- Corbyn also establishes, at [9], that at common law meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as “the consensus requirement”, is that the meaning must be one that “tends to lower the claimant in the estimation of right-thinking people generally”. The Judge must determine “whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society”…The second requirement is known as the “threshold of seriousness.” To be defamatory, the imputation must be one that would tend to have a “substantially adverse effect” on the way that the people would treat the claimant…”
As stated above, the judge’s initial focus was on whether the alleged meanings that the Claimant sought to attribute to the comments in the book were actually attributable to the Claimant at all. In dismissing the claim, the judge stated:
“Does this text refer to or in any way reflect adversely upon a corporation? In my judgment, it does not. The book portrays ENRC as little more than a front for the operations of the Trio. It would be unreal for the reasonable reader, at this stage of the book, to attribute or link the suspicious circumstances of the deaths of Bekker, Bethel, and Strydom and Mack’s belief he had been poisoned to a corporate entity. If a reader paused to consider the role played by ENRC in these events, the impression is the one that is consistent throughout the book, that it was being used as the vehicle for criminal activities, or, as Mr Caldecott QC submitted, occasionally sometimes as the target. It was not the organiser of them. The book does not make that allegation either in terms or by implication. In the sections of the text complained of by the Claimant, this message is reinforced by repeated references to “the Trio’s corporation“, “the Trio’s African mining interests” and “the Trio’s people”. There is an unreality at the heart of the Claimant’s pleaded meanings. They attribute, to a corporate entity, actions, and a motive, that it simply cannot have. Only individuals can carry out acts of murder or poisoning. Only individuals can be motivated to do so to protect some business interests. A company cannot. I reach that conclusion not by the application of 19th-century legal precedent but by a straightforward application of the principles that guide the determination of natural and ordinary meaning to the text of this book…
I accept that it is possible to make an allegation that implicates a company in murder, for example, as I gave earlier, by stating that it procured it or to suggest that a company is legally or morally responsible for a murder. But this book does not make any such allegation against ENRC. In short, the book does not bear the defamatory meaning contended for by the Claimant because, read in their proper context, the allegations complained of by the Claimant do not refer to any ENRC corporation.”
Comment
This case is a prime example of why it is essential to make sure that the Claimant has properly analysed the natural and ordinary meanings of the statements complained of and properly pleaded them.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
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