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  1. Media Law
December 8, 2014

Businessman’s bid to secretly gag and sue Athens-based Greek language newspaper in London’s High Court rejected

By PA Medialawyer and Press Gazette

A businessman has failed in his attempts to gag and sue a Greek newspaper in a UK court.

Sabby Mionis also failed in his attempts to have a High Court hearing held in secret.

He settled a previous libel claim against Demokratia with a confidential deal under which the newspaper promised not to publish anything referring to him or his immediate family.

Mionis originally sued in London over publications which took place within the jurisdiction of England and Wales.

Despite the fact the Greek language title is published in Athens, and no hard copies are distributed in the UK, the newspaper accepted that it might have been read here by a few people.

Mionis brought his second legal action in London – which he failed to have heard in secret – after the newspaper allegedly breached its agreement with him.

But judge Sir David Eady held that the relevant clause in the settlement agreement was unenforceable because it was too vague and uncertain about the scope of the obligations it imposed.

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After the hearing John Filippakis, publisher of the newspaper, criticised the claimant, Mionis, for forum-shopping by bringing his libel claim in England, and for a failed attempt to persuade the court to hear the proceedings in private.

Filippakis said Demokratia was not published in the UK, and had almost no online readers in the UK "beyond Mr Mionis' friends and associates".

Mionis, who was until 2009 the chief executive of CM Advisers Ltd, the management company of CMA Global Hedge, an investment company listed on the London Stock Exchange, had sued Democratic Press SA and three individuals over a series of some 18 articles which appeared in Demokratia between October 2012 and May 2013.

They concerned the so-called "Lagarde list" – information passed to the Greek government in 2010 by France's then Finance Minister, Mme Lagarde, with a view to helping the authorities identify individuals involved in tax evasion, and were published on the front page of the newspaper's website and most of them also appeared the front page of the hard copy editions.

Mionis claimed the newspaper's articles formed part of a sophisticated campaign and included "gratuitous and deeply offensive personal attacks" on him.

He sued in London on the publications which took place within the jurisdiction of England and Wales – although the newspaper is not published in hard copy in the UK, the defendants accepted that it might have been read here on the internet by a few people.

Under the settlement, reached a few months later, the defendants agreed to a number of undertakings – they would publish an article, with a photograph of him, the truth of which he would warranted, and would not repeat the offending allegations.

Clause 3.2 stated they would not publish, in any jurisdiction, any articles or statements which "refer to" Mionis or his "immediate family".

But Mionis then returned to court, claiming that the defendants had breached the agreement struck in the settlement with two articles, published in January and June this year, this year which, he said, clearly referred to him, although he was not named.

Eady said that the settlement meant that the defendants, who had been staring down the barrel of an extremely expensive defamation action, had been relieved of the pressures of litigation.

But he added: "It will be noted that the restrictions imposed upon the defendants' future conduct went in certain respects beyond anything the court would have been able to grant if the claimant had proceeded successfully to trial.

"The standard form of injunction, when granted at the close of a successful libel claim, would prevent only publication of the words complained of and 'any similar words defamatory of the claimant'.

"Specifically, however, these defendants are not permitted to refer to the claimant or members of his family in any way; they are not merely prevented from publishing words that are defamatory, false, in breach of privacy or otherwise prima facie unlawful.

"That does not mean in itself that the terms of the agreement are unenforceable. Parties are, in general terms, allowed to negotiate an agreement, by way of settling litigation, which goes wider than the scope of legal remedies obtainable from the court."

Mionis and his advisers had recognised from the outset that the defendants had a right and a duty to report accurately and fairly on the developing story of the Lagarde list, Eady said.

But this gave rise to a tension when it came to construing the scope of the restrictions that the agreement, including clause 3.2, sought to impose on their freedom of expression.

The judge went on: "The court should always strive to give effect to the true intention of contracting parties.

"Here, I do not find it easy to identify an underlying common intention between the parties. I doubt whether they were ad idem on the scope of the restrictions to be imposed."

The judge applied the so-called "officious bystander" test, asking what would have been the response if, during negotiations on the relevant clause, someone had put a question along the lines of: "If you want to refer, in a forthcoming article, to individuals associated with the claimant, would you need to ensure that it is so worded that no reasonable reader would take the passage to be referring indirectly to him?"

He went on: "I suspect that the defendants would have replied in the negative, but I would be confident that they (standing in the shoes of the reasonable onlooker) would not have reacted by saying, 'Of course we would'."

Mionis's legal team had cited an article dated 22 October 2014 as an example of how the defendants could, if they took the trouble, publish an article on the Lagarde list which did not breach the agreement, the judge said.

He went on. "I have no doubt that it would be relatively easy to avoid any reference to the claimant, even indirectly, by erring on the side of caution, were it not for the fact, expressly acknowledged by the claimant, that the defendants had to go on covering the Lagarde story.

"In my view, the difficulties of interpretation that would repeatedly arise, almost every time an article on that subject was contemplated, would render clause 3.2 too vague and uncertain, as to the scope of the obligation imposed, for it to be enforceable.

"What a contracting party is required to do or to refrain from doing needs to be spelt out clearly, and especially so when it is sought to limit the right to communicate information and ideas. It follows that I cannot hold the defendants to be in breach of its terms in the light of the evidence adduced."

The court also could not issue an injunction to enforce the agreement's terms, because it would leave so many uncertainties about putting it into effect that it would be unenforceable.

Eady ordered Mionis to pay the defendants' costs, including an interim payment of £50,000 on account which had to be paid within 18 days.

After the hearing, Demokratia's publisher, John Filippakis, said in a statement: "We are delighted that Judge Eady has rejected Sabby Mionis' claim for an injunction to try, firstly, to forbid us through an English court order making any reference at all about him or his family and, secondly, to pay damages."

He went on: "The judge also dismissed Mr Mionis' extraordinary attempt to have the case heard in secret, behind close doors.

"Mr Mionis's attempt to sue our Athens-based Greek language independent newspaper firstly for libel and then for alleged breach of a settlement agreement is likely to have cost him about £500,000 (or around 633,646 Euros).

"Demokratia does not sell any copies in England. Also, there are almost no readers of it in this country on the internet beyond Mr Mionis' friends and associates.

"Yet he sued us for libel over Greek language articles which linked him with the raging political controversy in Greece over the Lagarde List. The list exposed those who held large funds in Switzerland and in companies based in 'tax havens' globally and has led to court proceedings against politicians and public officials and the investigation of the tax affairs of prominent businessmen in Greece.

"If Mr Mionis, who is a high profile Greek citizen and who was involved with various businesses in Greece, felt that he had a grievance he should have sued in Greece rather than forum-shopping over here.

"If his claim had succeeded, we would have suffered a huge economic blow in the midst of the well-known deep crisis in Greece."

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