Insights High Court finds that statements complained of in book Kleptopia did not refer to the claimant and were therefore not defamatory of it


Eurasian Natural Resources Corporation Ltd (ENRC) issued libel proceedings against Tom Burgis and his publisher, HarperCollins Publishers Ltd (for whom Wiggin acted), in relation to Mr Burgis’s book “Kleptopia – How dirty money is conquering the world” (the Book). ENRC claimed that two sections of the Book were defamatory of it.

ENRC alleged that the natural and ordinary meaning of the sections of the Book was that:

  1. ENRC had Andre Bekker, James Bethel and Gerrit Strydom (referred to in the Book as “the Trio”), murdered to protect its business interests; alternatively
  2. there were strong grounds to suspect that ENRC had Andre Bekker, James Bethel and Gerrit Strydom murdered to protect its business interests; and
  3. there were reasonable grounds to suspect that ENRC had Jon Mack poisoned.

As Mr Justice Nicklin noted, it is an essential part of a defamation claim that the words complained of should refer to the claimant. ENRC relied on the references to “ENRC” and “ENRC plc” in the Book to try and establish this. It said that the statements complained of “in the context of the Book as a whole” referred to and were understood to refer to ENRC.

Mr Burgis said that ordinary reasonable readers would not identify ENRC as having been connected with the deaths of the Trio and the poisoning of Mr Mack. Mr Burgis also said that, if the words complained of did refer to ENRC:

  1. they did not bear the meanings of guilt as stated by ENRC;
  2. they were not defamatory of ENRC concerning Jon Mack’s suspicions that he had been poisoned; readers were told there was no medical evidence to support his suspicion;
  3. in the context of the Book as a whole, the sections of the Book complained of meant: “the deaths of Andre Bekker, Gerrit Strydom and James Bethel are suspicious and the cause of death in each instance remains open to question which merits further investigation”; and
  4. this meaning was a statement of the author’s opinion.

Mr Burgis also contended that if the words complained of did refer to ENRC, they were not actionable at common law as defamatory statements because ENRC’s meanings, i.e., the act of murder, could not be committed by corporations, still less holding companies, but only by natural persons.

In October 2021, Nicklin J ordered a trial of preliminary issues as to: (i) whether the statements complained of referred to Eurasian; (ii) the natural and ordinary meaning of the statements; (iii) whether the statements were defamatory of Eurasian; and (iv) whether the statements were fact or opinion.

The central issue was whether the statements complained of referred to any ENRC company at all. This was a question of assessing the natural and ordinary meaning, and whether the ordinary reasonable reader would understand the allegations to be made against a company.

Having read the whole of the Book, Nicklin J said that a clear message from it was that ENRC was the corporate front for the illegal activities of the Trio. Further, even during the period when ENRC was a public company, the Book suggested that its corporate governance was an inadequate “counterweight” to the Trio’s influence. When ENRC was taken back into private ownership, the ordinary reasonable reader could not fail to appreciate the significance of this step, he said.

Further, Nicklin J said, a more general theme of the Book was that corporate structures, and the opacity of ownership of companies and property, enabled criminal activities, particularly the laundering of the proceeds of crime and the plundering of resources to flourish. A second aspect was the suggestion that such corporate structures were used not only as a front by wrongdoers but also a shield and occasionally as a weapon. For example, the Book states that “the corporation itself – an idea, incorporeal, a thing that could not be impoverished or incarcerated – would carry any punishment.

Nicklin J said that this was the context in which the reader arrives at the sections complained of by ENRC. He was satisfied that the words complained of in the first section suggested that the deaths of the Trio were suspicious and that there could be grounds to suspect that they might have been killed to stop them from revealing information about “the ENRC unit at the heart of the suspected corruption”. This was reinforced when the narrative returned to the deaths in question in the second section complained of.

However, Nicklin J said, a reader who concluded that the men had been murdered in order to silence them, would be “avid for scandal”. Similarly, no reasonable reader could conclude, from the single paragraph relating to Jon Mack, that he had been poisoned or even that there were grounds to suspect him of being so. That was an unreasonable and forced meaning. The importance of the section was more that Jon Mack believed that he had been poisoned, by whom was not specified, and that this had led him to terminate his involvement with an SFO investigation into ENRC.

Nicklin J found that the concluding sentences of the first section echoed the broad theme that, even if the SFO investigation reached a conclusion adverse to ENRC, any punishment was likely to be felt only by the corporation and not “the Trio or their lieutenants”.

In Nicklin J’s view, the text did not refer to or in any way reflect adversely upon a corporation. The Book portrayed ENRC as little more than a front for the operations of the Trio. It would be unreal for the reasonable reader to attribute or link the suspicious circumstances of the deaths of Bekker, Bethel and Strydom and Mack’s belief he had been poisoned to a corporate entity. The impression given throughout was that ENRC was being used as the vehicle for criminal activities and occasionally the target. It was not the organiser of them. The Book did not make that allegation either in terms or by implication. In Nicklin J’s view, there was an unreality at the heart of ENRC’s pleaded meanings. They attributed to a corporate entity, actions and a motive that it simply could not have, as only individuals can carry out acts of murdering or poisoning or be motivated to do so to protect business interests. A company cannot.

Further, Nicklin J said, as already stated, the Book did not allege that any of the Trio was murdered or that Mr Mack was poisoned. In so far as it suggested that these events were suspicious, the ordinary reasonable reader would conclude that the finger of suspicion pointed at individuals, not at a corporate entity of ENRC. There was no suggestion that there was any corporate sanction for these actions.

Accordingly, the sections of the Book complained of did not bear the defamatory meaning contended for by ENRC because, read in their proper context, the allegations complained of did not refer to any ENRC corporation.

Nicklin J accepted that the sections of the Book complained of did bear Mr Bugis’s meaning, but he found that that meaning was not defamatory of ENRC or any corporate entity.

Accordingly, it was not necessary to determine the other preliminary issues. The consequence of the ruling was that the claim was dismissed, and judgment entered for Mr Burgis and his publisher. (Eurasian Natural Resources Corporation Ltd v Tom Burgis [2022] EWHC 487 (QB) (2 March 2022) — to read the judgment in full, click here).