HomeInsightsCourt of Appeal enforces settlement agreement contractual rights over Article 10 rights of freedom of expression

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The claimant, Mr Sabby Mionis, was a businessman and philanthropist who had dual Greek and Israel nationality.

The first defendant, Democratic Press SA, was the publisher of the Greek language newspaper, Demokratia.

The newspaper, Demokratia, published a series of 18 prominent articles about Mr Mionis and his business activities, which Mr Mionis alleged were defamatory of him in that they falsely portrayed him as the “chief fixer” of tax evasion on a huge scale.

Mr Mionis issued proceedings for libel, claiming damages, including aggravated damages (for the alleged anti-Semitic content), and an injunction preventing the repetition of the defamatory allegations complained of.

The parties reached a compromise and entered into a settlement agreement according to which Mr Mionis undertook not to pursue his libel claims, and to bear his own costs. In return, the defendants undertook: (i) to take down the articles complained of from the newspaper’s website; (ii) not to republish any of the allegations complained of; (iii) not to publish any reference to Mr Mionis or his immediate family; and (iv) to publish an article, which was to be verified as true by Mr Mionis and accompanied by a photograph of him.

A few months later, Mr Mionis applied to the court to enforce, by way of injunction, the undertaking given by the newspaper not to publish any reference to Mr Mionis or his immediate family. The newspaper had published two articles, which Mr Mionis said breached the settlement agreement because both articles referred to him, and the second referred to his brother.

Sir David Eady, sitting as a High Court Judge, refused Mr Mionis’s application on the ground that the clause in question was too vague to be enforceable.

Mr Mionis was granted permission to appeal on five grounds, one of which he did not pursue and three of which the defendant did not challenge. The Court of Appeal was therefore only concerned with one ground, which was that the judge had failed to adopt the correct approach to the enforcement of contractual terms that restrict freedom of expression, but which are freely entered into by the parties.

The Court of Appeal had to decide whether an injunction should be granted to enforce the clause, having regard to the court’s obligations under s 12 of the Human Rights Act 1998. This involved considering the right to freedom of expression on the one hand, and the contractual rights of the parties in relation to the settlement on the other.

Giving the lead judgment, Lady Justice Sharpe noted that the right to freedom of expression is a Human Rights Convention right of fundamental importance, which has been consistently recognised as such both in Strasbourg and domestic jurisprudence. However, she said, Article 10(2) of the ECHR permits restrictions on the right for the protection of the reputation and rights of others, which included, in this case, the private rights of the parties under an otherwise validly constituted contract of settlement. “This is something to which the law attaches considerable importance and save in well-defined circumstances, such contracts would normally be enforced”, Sharpe LJ said. The issue was therefore one of proportionality, and in particular, whether the restrictions in the clause in question were a disproportionate interference with the respondents’ Article 10 rights.

Sharpe LJ noted that the wording of s 12 required a consideration of Article 10, because the court was being asked to grant an injunction that affected freedom of expression. However, in her view, “the analysis after a settlement agreement has been freely entered into, and the parties have waived their respective rights, is not the same as that which arises at the interim stage say, in a contested privacy or defamation action.” That would be to ignore the importance in the public interest of parties to litigation being encouraged to settle their disputes with confidence that, if need be, the court will be likely to enforce the terms of a settlement freely entered into on either side. In Sharpe LJ’s judgment, there was nothing disproportionate on the facts, in holding the defendant to its bargain. The appeal was allowed. (Mr Sabby Mionis v Democratic Press SA [2017] EWCA Civ 1194 (31 July 2017) — to read the judgment in full, click here.)

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