Black Cube gets green light for defamation claim in London’s High Court
London used to be described by the media as the defamation
capital of the world. In the 1980s and 1990s, when high profile international
litigants brought libel actions against media groups, and sometimes against
each other, it made for guaranteed headlines.
Offered only rudimentary advice from judges under the
guidelines then in place, libel juries tended to give sizeable awards, often
stretching into the six-figure bracket and occasionally topping the £1m mark.
The largest ever libel damages award, £1.5m, was won by Lord Aldington in a
1989 case against Nikolai Tolstoy and Nigel Watts.
A series of subsequent reforms to the system led to fewer
cases and even fewer large awards, which are now invariably determined by
judges rather than juries. But the latest published figures show that the
number of defamation claims has begun to rise once again.
Despite the legislators’ best intentions, these suggest that
the Defamation Act 2013, which heralded the most significant changes to the
law, has not succeeded in reducing the volume of claims being brought. In 2018,
265 defamation claims were issued in London, as opposed to 156 in 2017 and 112
in 2016, according to data published by the Royal Courts of Justice.
And big awards might be back on the agenda too. Should it
reach a full hearing, one case will not only make big headlines, but if
successful, it might even beat the all-time damages record. The case is being
brought by Black Cube, one of the world’s leading intelligence agencies, formed
by a group of veterans from the Israeli elite intelligence units. It
specialises in assisting in complex business and litigation cases.
Black Cube’s claim is being brought against Keshet
Broadcasting, an Israeli media company, after its investigative programme,
Uvda, broadcast a 90-minute documentary on the company and its methodologies in
June 2019.
After the broadcast, a spokesperson for Black Cube
commented: “Black Cube operatives always obey the laws of the jurisdictions in
which they operate and all aspects of each operation are reviewed by leading
law firms in order to ensure our compliance with local laws and regulations.”
The amount being claimed by Black Cube is £15m. Should that
sum, or something approaching it, be awarded by the trial judge in damages, it
would be the largest ever award for defamation in the UK by a very considerable
margin.
For more than a decade, libel damages awarded by an English
court have been subject to a ceiling figure of £275,000 – the highest sum that
a libel court can award for the worst possible libel with the most serious
aggravating features. This ceiling was confirmed by the Court of Appeal (Cairns
v Modi [2012] EWCA Civ 1382 [25]) and no sum exceeding it has been awarded
since the Defamation Act came into force.
Nevertheless, Black Cube has passed the first hurdle. At a
recent High Court hearing in London, which was conducted remotely, the company
had to prove that it has a valid case, that England & Wales is an
appropriate jurisdiction for the trial (forum conveniens) and that the court should
exercise its discretion to permit service of the proceedings out of the
jurisdiction., i.e. in Israel, where Keshet is based.
To fight its corner, Black Cube assembled an impressive
legal team: Carter-Ruck partner, Matthew Wescott, and Desmond Browne QC, who
recently celebrated the 50th anniversary of his call to the Bar. A QC since
1990 and a veteran of many prominent libel trials, he is widely regarded as a
doyen in his field.
In court, Browne successfully argued that London is an
appropriate forum to hear the dispute for the following reasons: most of Black
Cube’s clients and income derive from the UK, one of its founders is based in
London and is a British citizen, and many UK media outlets published excerpts
from the documentary after it was broadcast.
The High Court ruled in favour of Black Cube, when Master
Cook found that it satisfied all the tests and granted permission for the claim
to be served on Keshet Broadcasting in Israel before the end of October.
It is unlikely that the Black Cube v Keshet Broadcasting
case will ultimately be heard in court before next year, but it promises to be
one of the highlights should the parties not reach settlement before then.
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