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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Loutchansky v Times Newspapers Ltd & Ors [2001] EWCA Civ 92 (23 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/92.html Cite as: [2001] EWCA Civ 92

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE GRAY)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 23 January 2001

1. LORD JUSTICE SIMON BROWN: This application arises in a libel action in which the defendants concede that the claimant has a reasonable prospect of success. Success for this purpose means that the claimant will establish that the following defamatory statements were made about him and that the defendants will have failed to prove that they were published on an occasion of qualified privilege:

"(a) that he was the boss of a major Russian criminal organisation;

(b) that he, through Nordex, the company he owned and controlled, was involved in the smuggling of nuclear weapons and;

(c) he either personally or by means of companies owned or controlled by him was involved in the criminal laundering of billions of dollars from Russia or, alternatively, by his conduct he had given reasonable cause to suspect him or the companies he owned or controlled in the criminal laundering of billions of dollars from Russia."

2. The defendants nevertheless contend that the claim should be struck out, or at least stayed, and by this application they seek permission to appeal against Gray J's refusal on 24 October 2000 to make any such order. The basis on which they make that application is a submission that the claimant, even if successful on liability, would still recover only nominal damages because, so the defendants seek to argue, he is a man of general bad reputation.
3. Why is he a man of general bad reputation? The defendants say that this is so because, since December 1994, the claimant has been excluded from the United Kingdom at the personal direction of the Home Secretary on the grounds that his presence here would not be conducive to the public good. That decision, the defendants say, was based on the United Kingdom's stance against organised crime and racketeering and the need to protect the public and economy from such activity. In the course of the claimant's recent efforts to have the exclusion order quashed, a Home Office Official has deposed:

"I am unable because of the sensitive sources involved to elaborate on the detail of the information received by the Home Secretary. To do so would compromise the sources of that information and would be contrary to the interests of national security in that it is vital to the proper functioning of those bodies charged with the collection and dissemination of such information that their sources' identities be protected."

4. The first point to make is that this whole argument might be thought to be circular. If the claimant succeeds in this action, he will surely have demonstrated the falsity of these allegations and thus substantially undermine the basis of the Secretary of State's decision to exclude him in the first place. The analogy on which the defendants seek to rely is principally with a claimant's previous convictions. But there is a considerable difference between that case and this. Can it really be said of a Home Secretary's exclusion order, as Lord Denning said of previous convictions in Goody v Odhams Press [1967] 1 QB 333 at 341:

"I think the previous convictions are admissible. They stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open Court, they are matters of public knowledge, they are accepted by people generally as giving the best guide to his reputation and standing."

5. Nor should one overlook in this case the fact that the Secretary of State's exclusion decision can not be regarded as necessarily final. Under the special Immigration Appeals Commission Act 1997, once the Secretary of State makes an appealable decision, which now, finally, we are told he has done after prevaricating for a considerable period of time, that decision becomes appealable to the Commission and it appears that this claimant is intent upon appealing.
6. All that said, this judgment is not intended to constitute a ruling one way or the other as to the admissibility of the exclusion order. We are not called upon to give a ruling as to that. All we are called upon to do is to decide whether the judge's refusal to strike out this action, or indeed stay it, should properly be the subject of a substantive appeal to this court.
7. The difficulty of that basic argument aside, there are a number of other difficulties in the path of the strike out application, as were remarked upon by the judge below. There is the question of whether the strike out power in CPR Part 3.1, the case management power, should in any event appropriately be exercised in a case like this unless, as seems doubtful, this action can properly be regarded as an abuse of process. Even if the doubt as to whether the exclusion order is admissible as evidence of the claimant's general bad reputation is put aside, there is the difficulty, as the judge observed, of predicting what effect the jury would give to it. I quote the judgment:

"I do not think it would be right for me to proceed on the assumption that on account of the exclusion order the jury would award derisory or even nominal damages."

8. Even, moreover, were the defendants able to demonstrate conclusively that the exclusion order is admissible and that it would reduce the damages to a nominal sum, there is what may be called the Joyce v Sengupta [1993] 1 WLR 373 point, the claimant's prima facie entitlement to bring such an action in circumstances such as these to clear his name.
9. There is, in my judgment, no realistic prospect whatever of the Court of Appeal allowing an appeal against the judge's refusal to strike out this claim. I read into this judgment what Brooke LJ said, as the single Lord Justice initially seised of this application, when he refused it on the documents on 30 November last:

"The Court of Appeal would be extremely reluctant to alter case management directions given by a specialist judge in his specialist field so close to a trial date.

(1) Nothing in the CPR could be designed to prevent a litigant who complies with the rules and practice directions, from presenting his case to a court. I see no real prospect of interfering with the judge's approach to the question of striking out.

(2) Gray J made it clear that the trial judge could entertain arguments about the admissibility of the exclusion order. The Court of Appeal would not interfere with his pre-trial ruling in those circumstances."

10. I have already indicated that I agree with this latter comment. Least of all would it be appropriate for us to give a final ruling on the matter today, given that we have only very briefly, in the course of this short hearing, been introduced to this court's recent decision in Burstein v Times Newspapers Limited (unreported, transcript 20 December 2000) which, undoubtedly, will require careful further study before any final ruling is made as to the admissibility and relevance of the exclusion order.
11. I now turn to deal with the defendant's application to appeal against the refusal of a stay. Not only do I for my part find Gray J's reasoning for refusing a stay to be convincing and unassailable, but, as Mr Spearman tells us this morning, the position has since developed in a highly material way. The essential basis upon which the stay was sought was the Secretary of State's refusal to allow the claimant to come to this country even to give evidence at his trial. That, the defendants sought to contend, would produce an unfairness and prejudice to them. We now learn that the Secretary of State has agreed that the claimant can attend his trial. True, the agreement is said to be conditional and the conditions have apparently not yet all been agreed, but there is no basis to doubt that they will be agreed and that the claimant will attend.
12. Even, I may add, were he not to do so, I, for my part, would not regard that as a sufficient basis to stand this matter out of the list unless the trial judge himself thought so. It is not a matter on which this court would override the directions of the judge below.
13. I observe by way of footnote that this matter is the subject of a longstanding fixture for trial to commence on 19 March 2001 with an estimated length of 15 working days.
14. I would have no hesitation in refusing the application.
15. LORD JUSTICE LONGMORE: I agree.
ORDER: Application refused.