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July 14, 2009

Tim Whehell and BBC Newsnight for beating the English language of a UK High Court ruling into the opposite of what it said about the nature of Russian justice, its beneficiaries and victims

Sent: 17 July 2009 14:47
To: Tim Whewell
Subject: Your evidence please
Dear Tim:

In your recent broadcast on Oleg Deripaska, you make the following claim about the ruling of Justice Christopher Clarke in the Cherney v Deripaska High Court action (at minutes 0538-0550 of the tape):

“…The judge said that Deripaska had agreed a final global payment to end Mr Cherney and Mr Malevsky’s protection of his business, words used by Mr Deripaska himself in his statement to the court.”

Please provide me with your substantiation of the judge’s words, as I have searched the ruling and cannot find them; or anything approaching your interpretation of Justice Clarke’s opinion on the substance of the case. At 0526 minutes, you state: “the ruling didn’t deal with the substance of the claim”. Twelve seconds later you seem to have contradicted yourself.

In the event that you have made an honest mistake, I’ll be glad to report that. Should you fail to respond, I may be obliged to report that you refuse to respond.



—– Original Message —–
Sent: Friday, July 17, 2009 7:52 PM
Subject: RE: Your evidence please

Dear John,
I did not contradict myself. Nor did I make a mistake.
We made clear that the judge was quoting Mr Deripaska. We also made clear that the judge’s ruling dealt only with jurisdiction and not with the substance of the case.
Tim Whewell
—– Original Message —–
To: Tim Whewell
Sent: Saturday, July 18, 2009 9:13 AM
Subject: RESEND — Request for additional information

Tim — to expedite your timely response late yesterday afternoon, I sent a follow-up request. It carries typos that I have cleaned up in resending the message now. You are requested to reply at your earliest convenience.

—– Original Message —–
To: Tim Whewell
Sent: Friday, July 17, 2009 9:08 PM
Subject: Request for additional information

Dear Tim:

Thanks for your thoughtful email, following up our detailed discussion by telephone this afternoon. Pardon me for pointing out that your categorical responses are as open to misinterpretation as your broadcast.

You continue to miss the fundamental point of the London court case to date, for I could not find a reference in your broadcast, nor did you answer when I asked: what you meant when you said, on air, that Mr Justice Clarke’s ruling was “extraordinary”? This may be, as we discussed but you did not report, that for the first time a judge of the UK High Court has ruled that the Russian courts can be influenced so unfairly by a man of wealth, like Mr Deripaska, that a factual claim, like that of Mr Cherney’s, could be denied a full and fair hearing; and that if Mr Deripaska were to decide an individual like Mr Cherney is adverse to his interest, Mr Cherney’s life may be in danger.

Please review the judgement again on these points:

In our discussion, you pointed out that in your broadcast, you were referring to Sect. 95 of Mr Justice Clark’s ruling of July 3, 2008. In the text of the ruling, this section can be found under the heading “Mr Deripaska’s Account” (page 22).

I can’t find where you reported that the ruling ordered Mr Deripaska to trial on Mr Cherney’s breach of contract claims. As you know, these claims all relate to the question of who owns the assets Mr Deripaska claims to have acquired for himself.

You insist that Mr Justice Clarke’s “ruling dealt only with jurisdiction and not with the substance of the case.” Thank you for explaining that is what you meant. But the text of the ruling makes plain that your claim either misunderstands the ruling, or intended to mislead. You omitted to report to your audience what the judge’s ruling was, and his reasons. If you had wished to quote the judge, as you now say was your intention, you might have chosen Sect.119. Please note carefully the quote marks I use to report exactly what Mr Justice Clarke wrote in his judgement:

“One side or other is plainly telling lies on a grand scale. But I am satisfied that, on the material presently before me, Mr Cherney has a good arguable case on this point, in the sense that he has a strong argument and that, insofar as any judgment can be made on present material, he has much the better side of the argument.”

In our telephone discussion today, we agreed that at Sect. 95 the judge was doing no more than summarizing Mr Deripaska’s claims to the court. We disagree over whether in your use of the English language — in both the spoken and the published text of your broadcast — you make this clear to a reasonable person familiar with the meaning of the language. I ask you to consider the possibility that your presentation was so constructed as to lead listeners and readers fluent in English to believe that you meant to convey the meaning that Mr Justice Clarke endorsed Mr Deripaska’s claims. You said on the telephone this afternoon: “I don’t accept that at all.”

That is , of course, your reaction to the interpretation by others of the meaning of the words you spoke.

This is the crucial point of our disagreement. We agreed that you would address it by putting down in writing why you believe the audio and written text are not open to this interpretation — why you say you should not be understood as having intended to convey the opposite meaning; and why you say you did not intend to take Mr Deripaska’s side ahead of the Appeal Court hearing of his claims next week in London.

In your defence you told me “the BBC lawyers went through every sentence”. I responded that perhaps the BBC lawyers were going through the meaning of your sentences in order to remove anything that might bother Mr Deripaska’s lawyers; and that your claim was so evidently a misrepresentation in Mr Deripaska’s favour, you and the BBC lawyers would have seen no harm in that.

We agreed that because you omitted to report the threats of assassination and perversion of justice in Russia, to which Mr Justice Clarke’s ruling referred in detail, and which were the basis for his order that Mr Deripaska should face trial in England, the stakes in interpreting correctly, or misinterpreting, what you say you meant by your broadcast, are great and grave.

You promised that you would put down in writing why you believe it is impossible to interpret that your broadcast favoured Mr Deripaska’s version of events and facts in this way.

I told you in our discussion that the written text of your remarks does not publish quote marks. You agreed. I said also that you did not intimate qualifying quote indicators in your voice-over. In the soundtrack, there is no indication of what you now say you “[we] made clear that the judge was quoting Mr Deripaska”.

Since this boils down to the meaning of the words — how they are understood, and not simply how you claim to have spoken them — would you mind clarifying your background in the language that is at stake here:

1. Are you a native speaker of English, and if so, in what part of the world did you first acquire the English language?

2. Do you speak any other language? To what level of proficiency, and for how many years?

3. Do you have an ethnic, or national, or other tie to a non-English speaking part of the world?

4. What are your educational credentials?

With my thanks,


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