Case Law, Sobrinho v Impresa: Serious allegations do not always mean serious harm – Nathan Capone

31 01 2016

expresoThe case of Sobrinho v Impresa Publishing ([2016] EWHC 66 (QB)) was a defamation claim in respect of an article in a Portuguese newspaper which alleged illegality on the part of a banker.  Dingemans J held that this had not caused serious harm to the banker’s reputation in England and Wales. Further, the proceedings were an abuse of process, his reputation already having been vindicated in Portugal.

Background

The defendant is a publishing company incorporated in Portugal. It is the publisher of the Expreso weekly newspaper, said to be Portugal’s broadsheet equivalent of The Times or The Telegraph.

The claimant, Mr Sobrinho, was a Portuguese citizen and the former CEO of an Angolan subsidiary of a Portuguese bank called BESA. Mr Sobrinho was also the founder and chairman of a charity registered in England and spent some in London on account of his daughter attending university there.

In June 2014, the defendant published an article in Expreso (in both hard copy and online versions) which alleged that Mr Sobrinho had failed in his governance of BESA which had led to the bank’s collapse and eventual bail out from the Portuguese central bank. The article also alleged that Mr Sobrinho had misappropriated millions of dollars from BESA’s funds and that there were reasonable grounds to suspect he had done so fraudulently.

The article had been published widely in Portugal, but at the time there were only 136 subscriptions to the hard copy of Expreso in England and Wales, with 52 subscriptions to online editions.

Mr Sobrinho commenced civil proceedings in Portugal and England. However, he subsequently dropped his claim in Portugal in April 2015 following an enquiry by the Portuguese Parliament, the outcome of which he believed had vindicated his reputation in Portugal.

In a preliminary issue hearing in the English proceedings, Mr Justice Dingemans was required to determine whether the article had caused Mr Sobrinho serious harm to his reputation and whether his claim was an abuse of process.

The Law

(i) Serious harm

Recent jurisprudence on the serious harm test can be said to have crystallised into two key uncontroversial propositions. First, the test requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused of will probably cause serious harm to the claimant’s reputation. Injury to feelings alone is not sufficient. Secondly, the claimant can call evidence in support of his case on serious harm, and the defendant can similarly call evidence to demonstrate that no serious harm has occurred or is likely to occur. The Court is entitled to draw inferences on the admitted evidence – mass media publications of a very serious defamatory allegation are likely to obviate the need for evidence of serious harm. However, this does not mean that serious harm is merely a ‘numbers game’ and very serious harm to reputation can be caused by the publication of a defamatory statement to just one person.

(ii) Abuse of process

As established in the case of Jameel v Dow Jones [2005] EWCA Civ 75, the Court is required to stop defamation proceedings which serve no legitimate purpose, i.e. whether a ‘real and substantial tort’ had been committed. This was expressed in Jameel as whether “the game was worth the candle“.

Judgment

Having reviewed evidence presented by both the claimant and defendant, Mr Justice Dingemans determined that the article had not caused Mr Sobrinho any serious harm in England and Wales. Mr Sobrinho’s own evidence suggested that any serious harm he had suffered had occurred in Portugal. Whilst Mr Sobrinho argued that particular companies had ceased their support for the English charity he ran, there was nothing to show that any individuals at these companies were readers of the article. It was just possible that the companies were concerned with BES’s collapse in Portugal, Mr Sobrinho’s connection to which was well known.

Equally important was the vindication of Mr Sobrinho’s reputation in Portugal. Mr Sobrinho’s witness evidence stated that “as a result of the public inquiry in Portugal and the coverage it received” he felt “that I have achieved all that I could expect to have achieved through proceedings there, perhaps more“. The evidence showed that that coverage of the Parliamentary inquiry was available in England in the same way that theExpreso article had been available in England. This meant that if his reputation had been restored in Portugal, it must also have been restored in England and Wales.

The judge could not identify a precise reason why no serious harm had occurred to Mr Sobrinho’s reputation in England and Wales, but cited a number of possibilities, from the limited extent of publication to the apparent fact that his reputation had been vindicated by the inquiry. Regardless of the reason, it was clear that no serious harm had in fact been caused or was likely to be caused.

Given that no serious harm had been caused and that Mr Sobrinho’s reputation had so effectively been restored by the Parliamentary inquiry in Portugal, the pursuit of the claim in England and Wales was a Jameel abuse of process and was “not worth the candle“.

Comment

The case highlights the risk of litigating an allegedly defamatory statement without establishing a strong evidential basis that serious harm to the reputation of the claimant has occurred or is likely to occur. In this case, although the allegations made by the defendant were very serious, the claimant was unable to satisfy the court that his reputation in England and Wales had been adversely affected to the extent that it had been caused serious harm.

A claimant should not simply assume that just because serious allegations have been made, damage will be presumed. This is particularly true in circumstances where circulation of the defamatory publication in England and Wales has been relatively limited. The new serious harm test requires Claimants to carefully assess and present evidence on the extent of their reputation in England and Wales, and how the defamatory publication has harmed that reputation.

This post originally appeared on the Fieldfisher Defamation Law Blog, “Scandalous!”and is reproduced with permission and thanks


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