By John Helmer, Moscow
Depending on whose opinion you trust, there’s not a great deal of difference between the business of Rod Christie-Miller (image) and the business of Anton Malevsky. It’s the business of conveying fear to motivate action – or inaction. A parachute jump put an end to Malevsky’s line of work. The UK High Court decision on February 10 in the case of Nathaniel Rothschild and Associated Newspapers Limited may have put an end to at least one of Christie-Miller’s lines, the threat business; at least, the threat Schillings regularly issues to sue reporters and publishers investigating Russian oligarchs and their business relationships with western bankers.
Christie-Miller is managing partner of London libel law specialist Schillings, and lawyer to Rothschild and Oleg Deripaska. On Friday one of his threats to deter, prevent and punish accurate investigation of his clients was tossed on its head by the principal British judge on the law of libel, Justice Sir Michael Tugendhat. The findings of fact by the judge, and the ruling , imply that as legal counsel to Rothschild, in his relationship with Deripaska, Christie-Miller has been making a business of threatening newspaper proprietors, editors and reporters in order to procure their silence, and take money for his effort.
Malevsky, who is alleged by Deripaska to have been a gangster, standover man and extortionist, is dead. According to Malevsky’s widow, and evidence in the coming High Court trial of Michael Cherney v Oleg Deripaska, Malevsky was a war hero, loving family man, frequent party and house guest of Deripaska’s, and trusted business partner and shareholder in Deripaska’s businesses .
The South African Police report says that on November 6, 2001, as Malevsky was coming in for a landing at the end of a sky dive, he was killed accidentally. SA Police Inspector H.J. van Wyk told Interpol, which despatched an official message from Pretoria, reporting that “on approaching the landing site, the wind whirled the parachute out of control and caused the landing to be fatal.”
Now that Malevsky is dead, he can’t sue for defamation. And unless you are the superstitious type, he also can’t threaten anyone from the grave he jumped into a decade ago. That’s because Malevsky’s threats were purportedly physical, allegedly criminal.
Christie-Miller’s threats are financial, and they are legal, in the peculiar context of English libel law. Here’s  a sample.
For many campaigning to reform the English practice, London’s law on defamation is discreditable, because it attracts the unscrupulous rich with something to hide, in order to exploit the lack of financial means of publishers and reporters; deterring them from their investigations by the fear of being taken to court – not because of lack of proof or doubt in the veracity of the evidence, but because of the risk of costly UK litigation. Christie-Miller and his law firm are bodyguards whose punch is in their invoices.
Did Justice Tugendhat, once an expert barrister in libel cases himself, intend the judgement he has brought down against Rothschild and Schillings as an attempt to reform the way in which libel writs have been used to scare off the media from their truth-telling role?
His initial description of those involved in the case hints at something like that. Rothschild the plaintiff is initially reported by the judge, not in the affirmative, but in the declarative: “Mr Rothschild describes himself as a member of the well known Rothschild banking family, who is a banker and businessman.” The note of scepticism towards this as a basis for reputational propriety susceptible to being defamed, is discreet but unmistakeable.
Regarding Deripaska, the judge is matter of fact. “Mr Deripaska controls Rusal and other major Russian businesses through his ownership of EN+ Group and Basic Element. He is amongst those commonly referred to as Russian oligarchs.” That reference to oligarchs, as the English judge well knows, has become in US libel law the criterion of a public person about whom the conventional standards of proof of defamation do not apply. Almost by definition in the US code, oligarchs are without reputation that can be made worse than they already are, and thus retrievable in a libel action. The dismissal of a defamation lawsuit by Mikhail Fridman against the Centre for Public Integrity (CPI), an investigative journalism group, in the federal US court of the District of Columbia set this standard in 2005 .
To the Bates precedent, a new US statute, enacted in August 2010, has added protections for investigative journalism that focuses on Russian business, and oligarchs (Russian or other). Reporters who are US citizens and publishers incorporated in the US can have no UK court award against them enforced in the US – without the claimants starting from scratch in the US courts and proceeding under the US law on libel, not the UK one .
Tugendhat’s judgement refers expressly to the “public figure” reform in the US libel law. He also ruled that once the Daily Mail acknowledged in preliminary court proceedings that it could not prove, or had been mistaken, in some of the factual claims in its original, allegedly defamatory publication, he would allow the defence to proceed on much broader, more general grounds of Rothschild’s conduct with Deripaska, and with Lord Peter Mandelson.
By stretching the field of activity relevant to judging what Rothschild has been getting up to in business with his oligarch friend, the judge also introduced something like the American public-figure standard. That’s because, as the judge points out: “In a case where a defendant is not able to prove the whole of the defamatory allegation he has made, the law is that he may nevertheless succeed if he can prove, on the balance of probabilities, that what he has alleged is substantially true.”
As for what is true, the standard of evidence the judge insists on is “reasonableness” in relation to “the balance of probabilities”. On these criteria, the threat Schillings issued was based on a standard of proof that has been dismissed as unreasonable. It’s enough, according to Tugendhat, that Rothschild, Deripaska and Mandelson did the things they admit they were doing. For a reasonable reader, ruled the judge, “what is alleged is an error of judgment, and grounds to suspect a conflict of interest, but not corruption.” Perhaps there was more in the evidence, but the judge didn’t have to assess it. There was already enough for him to rule “that the words complained of were substantially true (in the meaning which I have found them to bear), notwithstanding the admitted inaccuracies.”
That too, Justice Tugendhat’s ruling demonstrates, was provable, not from witnesses summoned to the court for the defence of the publisher; except for one witness on a peripheral issue, the defence lawyers called no witnesses. Instead, they relied on demonstrating what was wrong, improbable, unbelievable in the testimony of Rothschild himself.
A practising barrister and expert in the English variety of defamation law reads the Tugendhat judgement as something short of revolutionary in the English libel code. But he notes it was the Schillings strategy for Rothschild that did him in at the end. “In this case (trial by judge alone) the defendant’s lawyers made the right call in judging that they could win on the strength [that is, the weakness] of the plaintiff’s proposed evidence, even allowing for the admitted inaccuracies in the offending piece. It has always been the case that the defence of justification was satisfied if the defamatory imputations were substantially true. And for more than forty years in the UK, it has been the case that if you get half way to proving the substantial truth of the sting of the libel, the damages have to be reduced.”
“I suppose [Rothschild] will appeal. The argument is likely to be that the trial judge misconceived the nature of the sting of the libel and therefore misconceived what was necessary for the defendant to prove that it was substantially true. The Court of Appeal or the new UK Supreme Court may take the opportunity of reviewing the law on what is, in some respects at least, a difficult concept which could do with clarification.”