An international banker failed in an attempt to sue a Portuguese newspaper for libel in London when a judge declared that the case was an abuse of the process of the court.
Mr Justice Dingemans said it was "not worth the time, effort and expense" to allow Alvaro Sobrinho, the former head of BESA, the Angolan subsidiary of Banco Espirito Santo (BES), Portugal's second-largest financial institution, to pursue his case against against Impresa Publishing SA over an article criticising billions of dollars in loans made under his leadership and suggesting that there was reason to suspect wrongdoing in connection with them.
Sobrinho had launched his action over an article published in the 7 June 2014, edition of the weekly newspaper Expresso, and online.
In July 2014 Sobrinho launched a criminal complaint for libel against the newspaper in Portugal.
In August 2014, BES – which owned BESA – collapsed, requiring a bail-out from Portugal's central bank and subsequently being restructured.
This sparked an inquiry by Portugal's Parliament, at which Sobrinho gave evidence which attracted considerable media coverage.
He subsequently dropped a civil claim for 500,000 euros he had launched against Impresa Publishing following the refusal of the public prosecutor to pursue his criminal libel complaint, saying that he felt he had achieved all he could through his evidence to the Parliamentary inquiry.
In September 2014 Impresa sought to strike out the claim Sobrinho had launched in the High Court in London.
Mr Justice Dingemans said that while Expresso had a print circulation of 90,000 copies in Portugal, it had only 52 online subscribers and a circulation of 136 in England and Wales at the time the offending article was published.
Sobrinho was required by section 1 of the Defamation Act 2013 to show that his reputation in England and Wales had suffered serious harm as a result of the publication, the judge said.
The evidence before him, he said, did not demonstrate what the claimant had said was an "enormous circulation and readership" for the newspaper and its website in the England and Wales jurisdiction.
As Sobrinho had launched, then dropped, proceedings in Portugal, under the decisions of the House of Lords and European Court of Justice in Shevill v Presse Alliance, he could now only seek to recover damages for the harm his reputation had suffered in the England and Wales jurisdiction.
Mr Justice Dingemans said: "It should be noted that unless serious harm to reputation can be established, an injury to feelings alone, however grave, will not be sufficient."
Sobrinho was involved with the Duke of Edinburgh's International Award Programme, the Vaccine Alliance as well as the Planet Earth Institute, a charity registered in England, and based in London.
But his evidence had not shown that he was aware of any harm to his reputation from publication of the article in England and Wales – in contrast to proceedings in Portugal, where according to his evidence, people who had read the article contacted him directly and made derogatory comments "about him being an outcast dishonest banker who had embezzled funds".
The judge said that if Sobrinho's reputation was restored in Portugal by the media coverage of the Parliamentary inquiry, then it was also restored in England and Wales.
"Mr Sobrinho's view was that just because he had achieved all that he could have hoped to have achieved in Portugal, perhaps more, from the coverage of his evidence to the Parliamentary inquiry in the media, did not mean that the same point applied in England and Wales," said Mr Justice Dingemans.
"However I could not understand any good reason for his view. In my judgment Mr Sobrinho was unable to explain why vindication of his reputation in Portugal from the media coverage of the Parliamentary inquiry and his evidence, which had been sufficient to cause him to discontinue proceedings in Portugal, had not been sufficient to satisfy him in England and Wales.
"This is in circumstances where the media which had been available in Portugal to those who had read the article was available to those who would have read the article in England and Wales.
"In my judgment the publication in England and Wales of the article and that part of the article which had been published on the open website has not caused serious harm to Mr Sobrinho's reputation in England and Wales, and, as at December 2015 and January 2016, is not likely to do so."
Mr Justice Dingemans added that it was an "abuse of process to pursue the proceedings, because, as a result of the vindication of Mr Sobrinho's reputation following his evidence to the Parliamentary inquiry, the pursuit of these proceedings is not worth the time, effort and expense in pursuing them".
Solicitor Claire Gill, a partner at law firm Carter-Ruck, who represented Impresa Publishing, said: "Foreign claimants need to take heed from this decision and cannot safely assume that serious harm will be inferred even if the allegations are serious and they have a reputation here.
"Whilst foreign publishers will be pleased with this decision and may take heart from the fact that the burden is on the claimant to get over the serious harm hurdle, they cannot safely assume they will not be sued.
"The more serious the allegations, and the bigger the circulation, the greater the risk of a finding of serious harm."
A spokesman for Sobrinho said: "The court recognised the established and good reputation of Dr Álvaro Sobrinho in the UK, achieved through his work as a banker, investor and philanthropist, yet deemed sufficient harm was not caused by these articles in this jurisdiction. This goes against the personal and professional experiences encountered by our client since publication, and he continues to be affected in his business and philanthropic activities in the UK.
"The Court formally recorded that Impresa did not seek to justify the meaning of the articles it published, which meaning was held to be capable of causing serious harm.
"We are further considering the Court’s decision and the possibility of an appeal."