Neutral Citation Number: [2015] EWHC 3380 (QB)
Case No: HQ15X02051
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 23/11/2015
Before :
SIR MICHAEL TUGENDHAT
--------------------Between :
NANDI AHUJA
Claimant/
Respondant
- and (1) POLITIKA NOVINE I MAGAZINI D.O.O
(2) LYILJANA SMAJLOVIC
(3) ANICA TELESKOVIC
Defendants
Applicants
----------------------------------------Jonathan Price (instructed by Sutovic & Hartigan) for the Defendants
Hugh Tomlinson QC and Sara Mansoori (instructed by Withers LLP) for the Claimant
Hearing dates: 5, 6 and 23 November 2015
---------------------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
.............................
SIR MICHAEL TUGENDHAT
SIR MICHAEL TUGENDHAT
Approved Judgment
Sir Michael Tugendhat:
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SIR MICHAEL TUGENDHAT
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PARTIES
1. In this action for misuse of private information and libel the Defendants
apply to the court for orders setting aside the order dated 31 March 2015,
by which Master Roberts gave permission for service out of the
jurisdiction in Serbia; and/or a declaration that the court has no
jurisdiction to hear the claim and; and/or in the alternative, a declaration
that the court should not exercise any jurisdiction it may have to hear the
claim. The application was made on 22 July 2015.
2. The First Defendant is the publisher of ‘Politika’, a daily newspaper in
the Serbian language, circulated in Serbia and neighbouring countries in
hard copy, and on the internet to anyone anywhere in the world who
chooses to access its website. In their letter of complaint dated 23
February 2015 the Claimant’s English solicitors wrote that ‘We
understand that Politika is Serbia’s oldest and highest regarded national
broadsheet’. In the issues of Politika dated on 12 and 13 February 2015,
respectively (‘the Articles’ and ‘the First Article, and ‘the Second
Article’) there appeared two articles naming the Claimant. The Second
Defendant is the Editor of Politika. The Third Defendant is a journalist
living and working in Serbia who wrote the text of the words complained
of.
3. The Claimant is a businessman. In his first witness statement, made in
support of the application to the Master, and the letter dated 23 February
2015 (requesting the immediate removal of the words complained of) the
Claimant’s English solicitors described him as follows. He has ‘an
international/global purview for investing my family’s and my own
funds’. The nature of his work means that he has to travel very
frequently, over 200 flights per year over the past five years. He is rarely
in one country very long, but his closest ties are in London. He came to
London to study in 1992. He has been resident here since 1995, with his
Swedish wife, who he married in 2014. She has been resident here since
1998 and owns and runs a successful UK based company. He regards
London as his home and the ‘centre point’ of his life, and describes ‘the
UK as feeling more like my home than any other country’. He is an
Indian citizen with indefinite leave to remain in the UK. He achieved
high academic qualifications in London, and was employed in London by
Merrill Lynch as a Senior Banker in the Wealth Management Division for
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about 12 years to 2011. He spends most time in the UK, India and
Austria, where his parents live. He is a member of the Supervisory Board
of a large commercial enterprise in Serbia known as the Victoria Group,
in the agro-industrial sector. He is the part owner of this business. In
addition he and his family ‘are significant and constructive foreign direct
investors into Serbia’. He has an account with a Serbian bank.
4. Further information about him was disclosed subsequently, and its nondisclosure to the Master is one of the bases on which the Defendants rely
in this case. He is also of Serbian nationality, and travels to Serbia using
his Serbian passport. His mother is Serbian, he was raised in Serbia until
he was aged nine. His foreign residences include a substantial apartment
in Belgrade. He owns, or co-owns, properties in the USA. He also owns
or rents properties in India and Austria. He speaks English fluently, and
Hindi, German and Serbian (in order of proficiency, and not to the same
standard as English). In his second witness statement sworn on 22
October 2015 he summarised his position as follows: ‘I do have links to
Serbia through my current involvement as an investor and member of the
Supervisory Board of Victoria Group… through my Serbian passport
which I am in the process of relinquishing, through two adjoining
apartments I have in Belgrade and my early childhood growing up in
Yugoslavia and my half Serbian mother (who has dual nationality).’
WORDS COMPLAINED OF
5. Since the primary claim in this action is for misuse of private
information, it would be inappropriate to set out the words complained of,
although I should note that the Claimant states that the figure mentioned
in the First Article is inaccurate. A description will suffice. The First
Article, as published in Serbian on the internet, consists of text illustrated
by two prominent photographs. One photograph is of the name and logo
of HSBC and the other is of bundles of euro bank notes, including one of
500 euro notes. The gist of the article is that the Claimant transferred a
large sum of money from a Serbian bank to a Swiss one. The article
includes a disclaimer (‘the Disclaimer’): ‘The hero of our story from
India is certainly not the Serbian tycoon who tried to launder Euros 20
million in a Swiss branch of the British bank HSBC, about which our
newspaper informed readers two days ago. While researching which
Serbian businessman is in question, Politika discovered this unusually big
transaction’. It also includes the statement: ‘This businessman’s move
shocked bankers and caused a weakening of the Dinar, but there were no
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grounds for the state authorities to stop that transfer of money from an
account in our bank to an account in a Swiss bank’.
6. The Second Article is headed (in its English translation) ‘The state knows
who was taking millions to Switzerland’. It again refers to the unnamed
‘tycoon’ who is distinguished from the Claimant in the Disclaimer. The
Second Article repeats the Disclaimer, and states that he did not transfer
the money in cash, but transferred it from one account to another. The
Second Article refers to remarks said to have been spoken by the Prime
Minister of Serbia at a press conference. In relation to transfers out of
Serbia generally, he is quoted as saying that ‘this is something the Tax
Administrator should deal with…’ As to the money transferred by the
Claimant, the Prime Minister is reported as saying: ‘I know of all these
cases of taking money out… The man in question is Indian, Nandi Ahuja,
a member of Victoria Group’s Supervisory Board…’
7. The Claimant complains that the disclosure of bank transfers made by
him is an infringement of his right to privacy, and this is so whether or
not the figure reported is accurate (he says it is not accurate). He also
contends that the words he complains of in each article are defamatory.
The meanings attributed to these words in his letter of 23 February 2015
is that he ‘knowingly or recklessly undermined and weakened the dinar
currency of Serbia… [and] there are grounds to suspect [he] is guilty of
unlawful tax evasion’.
8. While the words published by the Defendants were all written in the
Serbian language, what the Claimant complains of is the publication to
readers in the English language. He contends that the words in English
can be easily read by persons who are using a search engine to search for
references to the Claimant and who, when they see results in Serbian,
click on the icon which sets in motion Google Translate, or an equivalent
application, to produce an immediate translation.
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THE NUMBER OF READERS OF THE WORDS COMPLAINED OF
9. In her written submissions put before the Master, counsel referred to the
first witness statement of Mr Rupert Cowper-Coles, the Claimant’s
solicitor, who referred to what appears to have been an oral report from
the well-known IT expert Dr Godfrey. The solicitor stated that Dr
Godfrey did not have access to the most accurate data source, namely the
server hosting the words complained of, which would allow with
approximately 80% accuracy a determination of the geographic location
of the internet device or server from which the words complained of had
been accessed. Instead he used a service known as Alexa which provides
commercial web traffic data. Using this source, he said, ‘Dr Godfrey was
able to provide me with very approximate web traffic from the UK to the
Articles and other websites that republish the substance of the Articles.
Dr Godfrey discussed with me by telephone on … 28 March this
process… Dr Godfrey was able to estimate daily access to the Blic
website from the UK at 11,000 and Politika at 1,000…’ Dr Godfrey had
made clear that his figures related to the website of these publications, not
to any specific article.
10.The Claimant does not rely on the republications in Blic as publications
for which the Defendants are liable. He relies on them as showing the
damage he has suffered.
11.However, the Defendants challenged this evidence, and it is now accepted
that it gives an inaccurate impression of the number of hits on the
Articles. The witness statement of Natasa Sevic dated 22 July 2015
includes a table showing hits on the Politika website derived from Google
Analytics, which is again approximate. This table includes hits for the
period 12 February to 15 July 2015. This table lists 19 countries,
including Serbia, from which there are shown by far the largest number,
nearly 7000 hits for the First Article and nearly 3000 hits for the Second
Article. Countries from each of which between 200 and 500 hits on the
Second Article are recorded include Austria, USA, Canada, Bosnia and
Herzegovina and Switzerland. There are seven countries from each of
which between 100 and 200 hits are recorded, including Australia,
Germany and Italy. The remaining six countries, including France and the
UK, are each shown to have produced 70 hits. For the First Article the
hits from the UK are between 46 and 70. India does not appear on this
list. At the hearing the Claimant accepted that the number of individuals
who had identified themselves to him as readers of the Articles, and who
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accessed them in England, was about 35. Mr Tomlinson submitted, and I
accept, that there are likely to have a number of people who accessed the
Politika website in England in the course of doing searches on the
Claimant who have not identified themselves to him. So the numbers are
not inconsistent. These figures are for the internet. The hard copies of
Politika numbered nearly 42,000 for 12 February and over 73,000 for 13
February.
12.The Claimant challenges the figure of 70 hits from the UK on a number
of grounds. It is not necessary to set these out. It seems to me that to the
extent that these grounds apply to the hits from the UK, they apply also to
the hits from other countries, such as Austria and the USA. So the
criticisms affect the absolute, not the relative, number of hits. They thus
do not materially affect the question whether England is clearly the most
appropriate forum.
13.The state of the evidence on the number of readers strongly suggests that
the evidence of Dr Godfrey ought to have been adduced in a written
report from him, which would have made clear what his instructions had
been, and depending upon them, how many hits on the Articles there
were in jurisdictions other than England.
HARM SUFFERED
14.The harm which the Claimant alleges includes, as he stated in the letter of
23 February 2015, harm to his reputation in England, in Serbia and
internationally, since he has ‘lived and worked on three continents’. He
there added that the Articles are likely to cause further serious harm not
only to him, but also to his family ‘and have a significant impact on his
and their international business interests, his and their reputations in the
UK, as well as in Serbia, Austria, the USA where he/they have business
associates and significant business interests, and, of course, in India
where his family’s core business activities are based and where most
family members reside, not to mention other parts of the globe too’. He
stated that he had ‘received many calls and messages (as have other
members of the family), including from the UK, USA, Austria, Sweden,
Switzerland, Greece, Kazakhstan, India, and Serbia, to mention just some
of the countries, expressing concern. The words complained of have
caused unpleasant conversations to take place with the creditors of
Victoria Group who have formed the belief that the shareholders have
liquid funds which, he says, they do not have.
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15.Since a claimant who needs leave to serve a claim form out of the
jurisdiction of the English court in respect of a tort may only include in
his English claim damage suffered in England, he recognises that he must
confine this claim to damage suffered by publications to publishees in
England. But in his second witness statement dated 22 October 2015 the
Claimant included a list of 31 individuals who had contacted him. After I
asked what the places of publication were in respect of these individuals
he made a third witness statement dated 6 November, in which he was
able to state that most of these either did, or seemed likely to have, read
the words complained of in England.
16.For the purposes of the claim in misuse of private information the
Claimant relies on the severe distress and serious concern he has suffered
in respect of his family’s safety, which has made him feel compelled to
hire security personnel for himself and his wife during their intermittent
visits to Serbia. This is because another member of the Supervisory Board
of Victoria Group who is known to be wealthy was kidnapped and held
hostage for ransom. He also relies on the injury to his feelings caused by
the failure of the Defendants to contact him about the Articles before the
First Article was published, and that they published the Second Article in
spite of the protests made by and on behalf of himself. He also relies on
the falsity of the information disclosed. In particular there was not alleged
to be, nor was there in fact, any related exchange transaction with Dinars,
so it could not be correct to say that the transaction affected the value of
the Dinar. Nor was there any weakening of the Dinar recorded on the
published information on Dinar exchange rates at the time of the alleged
transfer.
17.The Defendants did not respond to the letter of 23 February 2015, nor to
other attempts made by the Claimant to resolve this matter without
recourse to litigation. Further, they continue to publish, and threaten to
continue to publish, the words complained of without any retraction or
correction.
18.For the purposes of the claim in defamation a claimant now has to satisfy
the test in s.1 of the 2013 Act, namely to show that the publication of the
words complained of ‘has caused or is likely to cause serious harm to the
reputation of the claimant’. The harm relied on for this purpose includes
the following: the seriousness of the meanings which he attributes to the
words complained (in particular in the world of finance and wealth
management in which he works), that he has a distinctive name
(important for the internet searches which business people now
commonly carry out on others with whom they deal, or might consider
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dealing with), that he has a large circle of friends in England, that the
Articles appear in the first few s of a search of his name on google.co.uk,
that he has already had to explain himself to numerous individuals who
have contacted him about the Articles, that the allegations in the words
complained of have been extensively republished in particular on other
media websites, in particular that of the newspaper Blic.
LAW ON SERVICE OUT OF THE JURISDICTION
19.There is no dispute as to the law on this topic. CPR Part 6.36, and
Practice Direction 6B para 3.1, provide that a claimant seeking
permission to serve proceedings out of the jurisdiction in Serbia must
satisfy the court that one of a number of conditions, or gateways, are
fulfilled. The gateways the Claimant relies on are: ‘(2) A claim is made
for an injunction ordering the defendant to do or refrain from doing an act
within the jurisdiction’ and ‘(9) A claim is made in tort where – (a)
damage was sustained, or will be sustained, within the jurisdiction; or (b)
damage which has been or will be sustained results from an act
committed, or likely to be committed, within the jurisdiction’. Claims for
damages for misuse of private information and defamation are both
claims in tort for this purpose. CPR 6.37(3) provides that: ‘The court will
not give permission unless satisfied that England and Wales is the proper
place in which to bring the claim.’
20.A recent summary of the law was given in AK Investment CJSC v Kyrgyz
Mobil Tel Ltd [2011] UKPC 7 by the Privy Council in relation to the Isle
of Man (which I set out substituting England and Wales for the Isle of
Man) as follows:
‘71. On an application for permission to serve a foreign defendant …
out of the jurisdiction, the claimant … has to satisfy three
requirements: …. First, the claimant must satisfy the court that in
relation to the foreign defendant there is a serious issue to be tried on
the merits, i.e. a substantial question of fact or law, or both. The
current practice in England is that this is the same test as for summary
judgment, namely whether there is a real (as opposed to a fanciful)
prospect of success: …. Second, the claimant must satisfy the court
that there is a good arguable case that the claim falls within one or
more classes of case in which permission to serve out may be given.
In this context "good arguable case" connotes that one side has a
much better argument than the other: ... Third, the claimant must
satisfy the court that in all the circumstances [England] is clearly or
distinctly the appropriate forum for the trial of the dispute, and that in
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all the circumstances the court ought to exercise its discretion to
permit service of the proceedings out of the jurisdiction…
88. The principles governing the exercise of discretion… are familiar,
and it is only necessary to re-state these points: first, in both stay
cases and in service out of the jurisdiction cases, the task of the court
is to identify the forum in which the case can be suitably tried for the
interests of all the parties and for the ends of justice; second, in
service out of the jurisdiction cases the burden is on the claimant to
persuade the court that England … is clearly the appropriate forum;
third, where the claim is time-barred in the foreign jurisdiction and
the claimant's claim would undoubtedly be defeated if it were brought
there, practical justice should be done, so that if the claimant acted
reasonably in commencing proceedings in England, and did not act
unreasonably in not commencing proceedings in the foreign country,
it may not be just to deprive the claimant of the benefit of the English
proceedings….’
21.There is a further point, mentioned, but not in issue, in that case. The
court should consider what is the natural forum for the pursuit of the
claims, in the sense of being the jurisdiction with which the claims have
their most real and substantial connection: Spiliada Maritime Corp v
Cansulex Ltd [1987] AC 460, at 478. The jurisdiction in which a tort has
been committed is prima facie the natural forum for the determination of
the dispute: Berezovsky v Michaels [2000] 1 WLR 1004, 1013D and
1014E.
22.Where there is an issue as to whether there could be a fair trial in another
jurisdiction the Privy Council said in the same case:
‘95. The better view is that, depending on the circumstances as a
whole, the [claimant’s] burden can be satisfied by showing that there
is a real risk that justice will not be obtained in the foreign court by
reason of incompetence or lack of independence or corruption. ….
97. Comity requires that the court be extremely cautious before
deciding that there is a risk that justice will not be done in the foreign
country by the foreign court, and that is why cogent evidence is
required. But, contrary to the Appellants' submission, even in what
they describe as endemic corruption cases (i.e. where the court system
itself is criticised) there is no principle that the court may not rule….
101. The true position is that there is no rule that the English court …
will not examine the question whether the foreign court or the foreign
court system is corrupt or lacking in independence. The rule is that
considerations of international comity will militate against any such
finding in the absence of cogent evidence….’
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23.In relation to PD6B 3.1(2) the discretion to grant permission will not be
exercised unless an injunction is a genuine part of the substantive relief
sought and there is a reasonable prospect of an injunction being granted.
24.In relation to PD6B 3.1(9)(a) it is enough that some significant damage
has been sustained in England. In relation to PD6B 3.1(9)(b) the court has
to ask whether damage has resulted from substantial and efficacious acts
committed in England, regardless (save in a case to which the Defamation
Act 2013 s.9 applies) of whether or not such acts have also been
committed elsewhere. But as Lord Hope said in Berezovsky v Michaels
[2000] 1 WLR 1004 at 1032:
‘In a defamation case the judge is not required to disregard evidence
that publication has taken place elsewhere as well as in England. On
the contrary, this feature of the case, if present, will always be a
relevant factor. The weight to be given to it will vary from case to
case, having regard to the plaintiff's connection with this country in
which he wishes to raise his action. The rule which applies to these
cases is that the plaintiff must limit his claim to the effects of the
publication in England: Diamond v. Sutton (1866) L.R. 1 Ex. 130;
Schapira v. Ahronson [1999] E.M.L.R. 735; see also Eyre v.
Nationwide News Pty. Ltd. [1967] N.Z.L.R. 851. Common sense
suggests that the more tenuous the connection with this country the
harder it will be for the claim to survive the application of this rule’.
DEFAMATION ACT 2013 S.9
25.The Defamation Act 2013 s.9 provides:
‘Action against a person not domiciled in the UK or a Member State
etc
(1) This section applies to an action for defamation against a person
who is not domiciled — (a) in the United Kingdom; (b) in another
Member State; or (c) in a state which is for the time being a
contracting party to the Lugano Convention.
(2) A court does not have jurisdiction to hear and determine an action
to which this section applies unless the court is satisfied that, of all the
places in which the statement complained of has been published,
England and Wales is clearly the most appropriate place in which to
bring an action in respect of the statement.
(3) The references in subsection (2) to the statement complained of
include references to any statement which conveys the same, or
substantially the same, imputation as the statement complained of.
(4) For the purposes of this section — (a) a person is domiciled in the
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United Kingdom or in another Member State if the person is
domiciled there for the purposes of the Brussels Regulation; (b) a
person is domiciled in a state which is a contracting party to the
Lugano Convention if the person is domiciled in the state for the
purposes of that Convention.
(5) In this section — “the Brussels Regulation” means Council
Regulation (EC) No 44/2001 ...’
26.The Explanatory Notes record that ‘this section aims to address the issue
of “libel tourism” (a term which is used to apply where cases with a
tenuous link to England and Wales are brought in this jurisdiction)’. But
those words do not identify the mischief which the section is to remedy. It
is not suggested in the present case that the Claimant is in any sense a
‘tourist’, nor that his links to England and Wales are tenuous, and yet the
section applies to him. The section makes no reference to different
categories of claimant, or to any specific link to England that a claimant
might have or lack. It applies as much to a claimant who has never
resided in England as to one who is resident or domiciled here. This form
of drafting has been the subject of discussion in a number of text books:
Gatley on Libel and Slander 12th ed para 24.29, Collins on Defamation
paras 25.51 to 25.89, James Price QC and Felicity McMahon
Blackstone’s Guide to the Defamation Act 2013 10 01 to 10.31, and
Duncan and Neill on Defamation 4th ed 9.03 to 9.09.
27.Price and McMahon identify the mischief as ‘a suggested chilling effect,
in which articles in journals published internationally had to be edited or
withdrawn because of the risk of legal action in England and Wales’ (para
10.11). Identifying the mischief at which an enactment is directed can
support an argument under the principle of Pepper v Hart [1993] AC 593,
but none has been advanced in this case. The editors cite from the speech
of the Lord Chancellor, the Rt Hon Kenneth Clarke MP introducing the
Bill on Second Reading in the House of Commons (para 10.15). He said:
‘Relatively few foreign libel cases ultimately end up in a British court
room, but I am concerned by the use of threatened proceedings by
wealthy foreigners and public figures to stifle investigation and
reporting… using the nature of British law to threaten a publication in
an entirely different jurisdiction. That is the evil we are trying to
address. We are not trying to stop British publications being sued by
anybody who can come here and show that we are the right
jurisdiction’ (Hansard, HC Deb, 12 June 2012, cols 182 and 183).
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28.The law in the USA is, in its broad outline, very well known to English
libel lawyers and others: Adelson v Anderson [2011] EWHC 2497 (QB)
paras [73]-[86]. It may be that it was to the difference between American
and English law, as it was before the passing of the Defamation Act 2013,
that the Lord Chancellor was referring when he spoke of ‘the nature of
British law’ (the differences have been narrowed by the 2013 Act). It has
not been suggested in the present case that ‘the nature of British law’,
compared to Serbian law, could be a factor on which either party might
rely. The Claimant contends that he is at risk of not receiving a fair trial
in Serbia, and the Defendants deny that. But the Claimant’s contention on
this point is not based on any alleged difference between English law of
defamation and Serbian law. No evidence of Serbian law has been put
before the court. The reasons the Defendants adduce for objecting to the
jurisdiction relate to the closeness of the connection of the events in
question to Serbia, to the cost and inconvenience of having to defend
themselves in London, and similar matters. If there is any case (other than
one relating to the USA) in which ‘the nature of British law’ has been a
factor relied on by a claimant in support of an application for permission
to sue a foreign defendant in London, I have not been referred to it. What
the reported cases illustrate is that (save in relation to the USA) it is the
fairness and other standards of the administration of justice in the foreign
jurisdiction which claimants rely on to support their applications (as the
Claimant does in this case).
29.The Claimant relies on Sloutsker v Romanova [2015] EWHC 545 (QB)
for this purpose (the Defendants’ response on this point is considered
below, under Justice in Serbia). In that case the rival jurisdiction
proposed by the defendant was the Russian Federation, but no point was
taken in respect of any difference between the law of defamation in
England and Russia. In a para [71], which counsel cited to the Master,
Warby J said:
‘[Counsel for the claimant] submitted that the defendant is in
substance maintaining her refusal to recognise the legitimacy of the
Russian judicial system, which is an insuperable obstacle to the
defendant's present application. I would not go quite so far. However,
this statement does not appear to me to be in any way a satisfactory
response to the claimant's concerns. It clearly leaves it open to the
defendant to denounce any unfavourable outcome as not, or not
sufficiently, legitimate. This is a factor which arose in Berezovsky
(see p1024D, Lord Hoffmann), and it is clear that the majority took
into account as an important factor evidence which satisfied them that
a favourable result in Russia "will not be seen to redress the damage
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to the reputations of the plaintiffs in England. Russia cannot therefore
realistically be treated as an appropriate forum where the ends of
justice can be achieved" (1014H, Lord Steyn). The defendant's stance
seems to me to be a very powerful factor in favour of treating England
as the appropriate jurisdiction in which to litigate a claim by this
claimant for alleged libel published here by this defendant.’
30.But whatever the mischief addressed by the section, Mr Price submits that
the effect of s.9 is clear. An applicant is required to put before the court
the fullest reasonably available evidence as to publication in all places in
which the words complained of have been published.
31.The editors of Gatley state at para 24.29: ‘…the effect of s.9 will be to
oblige the court to consider all the jurisdictions where the defamatory
statement has been published, in order to determine whether the domestic
jurisdiction is clearly the most appropriate place in which to bring the
action. As the Explanatory Notes to the Act make clear, “ … if a
statement was published 100,000 times in Australia and only 5,000 times
in England that would be a good basis on which to conclude that the most
appropriate jurisdiction in which to bring an action … was Australia
rather than England”. However, the extent of publication in different
jurisdictions may have little bearing on where the claimant's reputation
mainly lies and on where that reputation has been most seriously
damaged, and the Explanatory Notes rightly suggest that the court would
wish to take into account such matters as the amount of damage to the
claimant's reputation in England and Wales compared with elsewhere, the
extent to which publication was targeted at a readership in England and
Wales compared with elsewhere, and whether there was reason to think
that the claimant would not receive a fair hearing elsewhere. No doubt the
court will also wish to consider such factors as the convenience of
witnesses and the relative expense of suing in different jurisdictions. It
would be unsurprising if claimants resident in England and Wales were to
surmount the new threshold more readily than foreign claimants’.
32.Collins at paras 25.56 and 25.77 to 25.79, and Price and McMahon at
paras 10.13 to 10.18 and 10.24 to 10.28, consider the position of
claimants who are resident or domiciled in England in more detail than
the last sentence of this citation from Gatley. They each favour the view
that, if the claimant is resident or domiciled within the jurisdiction, that
will be likely to lead the court to the view that England is the appropriate
place to bring the action. But the only reason they suggest for this relates
to cases where the main harm to reputation will have been done in
England: paras 25.56 and 10.17. There appears to have been no specific
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reference to those residents of the UK who spend much of their working
lives abroad, and enjoy reputations in one or more countries abroad as
significant as their reputations in England and Wales. There are many
such people in business, finance, government and academic life, media
and entertainment, sport and no doubt other fields of activity: compare
Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB); [2015] 1 WLR
3409 paras [44]-[47]. And it is amongst such people, rather than those
whose reputation is mainly in England, that there is likely to be found
those wishing to sue foreign publishers in defamation. As Price and
McMahon also note at paras 10.25 to 10.27, there may be cases where the
court would be in great difficulty in being satisfied that any one place was
clearly more appropriate than another for bringing an a libel action.
33.Mr Tomlinson submits that an obligation on the court to consider all the
jurisdictions where the defamatory statement has been published, in order
to determine whether the domestic jurisdiction is clearly the most
appropriate place in which to bring the action, places an unreasonable and
disproportionate restriction on the Claimant’s right of access to the Court,
at least in the case of a defamation on the internet. The task of collecting
such information in respect of all the jurisdictions in the world would be
immense and complex. In the case of a defamation in hard copy the task
would be impossible for a claimant, since the information would be likely
to be available only to the publisher who put the material into circulation.
(I would add that even the publisher may not know, because hard copies
may be resold and circulated abroad by a domestic wholesaler to whom
the publisher has sold copies).
34.Mr Tomlinson submits that s.9 must therefore be read and given effect in
a way that is compatible with a claimant’s right of access to a court under
ECHR Art 6 (‘everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by
law’). To achieve this he submits that s.9(2) must be read as if it
contained additional words ‘…of all the places in which the statement
complained of has been published, which may reasonably be considered
appropriate …’
35.This submission based on Art 6 was made for the first time in a note
handed up on the morning of the second day of the hearing, in response to
a request from the bench that there be submitted to the court the academic
commentaries on s.9. Mr Tomlinson further submitted that s.9(2) purports
to oust the jurisdiction of the court. It is the public policy of the common
law to interpret restrictively statutory provisions which appear to interfere
with fundamental rights. I understood him to be referring to dicta such as
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that of Lord Hoffmann in R v Secretary of State for the Home
Department, Ex p Simms [2000] 2 AC 115, 131E-F, where he said:
‘[T]he principle of legality means that Parliament must squarely
confront what it is doing and accept the political cost. Fundamental
rights cannot be overridden by general or ambiguous words. This is
because there is too great a risk that the full implications of their
unqualified meaning may have passed unnoticed in the democratic
process. In the absence of express language or necessary implication
to the contrary, the courts therefore presume that even the most
general words were intended to be subject to the basic rights of the
individual. In this way the courts of the United Kingdom, though
acknowledging the sovereignty of Parliament, apply principles of
constitutionality little different from those which exist in countries
where the power of the legislature is expressly limited by a
constitutional document’.
36.Mr Price recalled that access to the court based on service on a defendant
who is out of the jurisdiction is in any event not a right, because the
jurisdiction of national courts is normally territorial. As Lord Diplock
said in Amin Rashid Corpn v Kuwait Insurance [1984] 1 AC 50 at 65G:
‘... the jurisdiction exercised by an English court over a foreign
corporation which has no place of business in this country, as a result
of granting leave under R.S.C., Ord. 11, r.l(l)(f) for service out of the
jurisdiction of a writ on that corporation, is an exorbitant jurisdiction,
i.e., it is one which, under general English conflict rules, an English
court would not recognise as possessed by any foreign court in the
absence of some treaty providing for such recognition. Comity thus
dictates that the judicial discretion to grant leave under this paragraph
of R.S.C., Ord. 11, r.l(l) should be exercised with circumspection in
cases where there exists an alternative forum, viz. the courts of the
foreign country where the proposed defendant does carry on business,
and whose jurisdiction would be recognised under the English
conflict rules.’
37.Transposing Lord Diplock’s words into the language of rights, for an
English court to permit service on a defendant out of the jurisdiction may
be an interference with the rights of the foreign defendant, including in
particular to that defendant’s right of access to her national court, and to
respect for her private life. And in a case of defamation, there may also be
an interference with the right to freedom of expression, either because
English law is more favourable to the claimant, or because the burden of
defending the proceedings, and the risk of unaffordable orders for
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damages and costs, would inhibit the defendant from publishing what is
lawful in his own country. The rules of court have always recognised this
factor, by requiring the court to have regard to the need to do justice to
the defendant as much as to the claimant. The right of access to the court
encompasses the considerations which the editors of Gatley refer to in the
words: ‘whether there was reason to think that the claimant would not
receive a fair hearing elsewhere… the convenience of witnesses and the
relative expense of suing in different jurisdictions.’
38.In my judgment Art 6 and HRA s.3 add nothing to the common law,
under which access to justice has long been a right. The common law
principle of legality, explained in Simms, always required that, so far as
possible, statutes be interpreted in a manner consistent with the rights,
such as access to a court, which it is the general duty of the law to uphold.
And the court is required to consider first domestic law (that is statute law
other than the Human Rights Act and the common law): Kennedy v The
Charity Commission [2014] UKSC 20 para [46].
39.The internet has had the effect that many ordinary people are defamed in
publications accessible to readers all over the world. And some ordinary
(and otherwise very private) people are the subject of defamations which,
for one reason or another, are in fact read or viewed (on media such as
YouTube) by thousands or even millions of people abroad. And I would
not exclude the possibility that there could be cases where, to require a
claimant to put before the court evidence relating to all the jurisdictions
where the defamatory statement has been published, might interfere with
the claimant’s right of access to the court. But that is not this case.
40.In the present case, as in many cases on service out of the jurisdiction in
respect of defamation, the claimant is a man of substantial means. He has
access to legal and technical professional advice in many different parts
of the world, including the benefit of Dr Godfrey’s expert advice. I do not
accept that it would be an interference with this Claimant’s right of access
to a court to be required to put before the Master evidence of hits from
countries other than the UK, such as that which has been put before the
court by Ms Sevic for the Defendants (para 11 above), together with
detailed evidence of his own links with the other jurisdictions where he
spends a significant part of his time, and in which he owns properties.
And if I had thought that there was any undue or impossible requirement
being imposed on the Claimant in this case, I would have taken into
consideration, in deciding whether England and Wales is clearly the most
appropriate place in which to bring an action, the Claimant’s right of
access to the court.
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41.For these reasons, in the circumstances of this case, I reject Mr
Tomlinson’s submission based on the right of access to a court. I accept
that the law is correctly stated in Gatley.
LAW ON NON-DISCLOSURE
42.Mr Tomlinson invites me to take the law to be as recently summarised by
Warby J in Sloutsker v Romanova [2015] EWHC 545 (QB) para [51]:
‘i) An applicant for permission to serve proceedings outside the
jurisdiction is under the duty of full and frank disclosure which
applies on all applications without notice.
ii) The duty requires the applicant to make a full and fair disclosure of
those facts which it is material for the court to know: Brinks Mat v
Elcombe [1988] 1 WLR 1350, 1356 (1) and (2) (Ralph Gibson LJ).
Put another way, disclosure should be made of "any matter, which, if
the other party were represented, that party would wish the court to be
aware of": ABCI v Banque Franco-Tunisienne [1996] 1 Lloyd's Rep
485, 489 (Waller J).
iii) Non-disclosure of material facts on an application made without
notice may lead to the setting aside of the order obtained, without
examination of the merits. It is important to uphold the requirement of
full and frank disclosure.
iv) But the court has a discretion to set aside or to continue the order.
Whether the fact not disclosed is of sufficient materiality to justify or
require immediate discharge of the order without examination of the
merits depends on the importance of the fact to the issues that were to
be decided. The answer to the question whether the non-disclosure
was innocent is an important, though not decisive, consideration. See
Brinks Mat at pp1357 (6) and (7) and 1358 (Balcombe LJ).
v) In the context of permission for service outside the jurisdiction the
court has a discretion to set aside the order for service and require a
fresh application, or to treat the claim form as validly served and deal
with the non-disclosure by a costs order: NML Capital Ltd v Republic
of Argentina [2011] UKSC 31, [2011] 2 AC 495, [136] (Lord
Collins).
43.Mr Tomlinson further submitted that in deciding what is or is not
material, the court was not concerned with the merits of the dispute, save
to the extent that it had to be satisfied that there is a serious issue to be
tried. It followed that the applicant was not required to disclose
everything that might be relevant to the merits of the dispute: MRG
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(Japan) Ltd v Engelhard Metals Japan Ltd [2004] 1 Lloyd’s Law Reports
731 paras 26, 30 and 31.
44.Mr Price directs me to the words of Jay J in Shaw & Anor v Logue [2014]
EWHC 5 (Admin):
‘35. …. the duty requires a party to '… disclose all facts which
reasonably could or would be taken into account by the Judge in
deciding whether to grant the injunction. It is no excuse to say that he
was not aware of the importance of matters he has omitted to
state'….. 37. Even more axiomatically, there is a separate duty arising
at all times not to mislead the Court and, should the Court have been
inadvertently misled, to correct that as soon as possible. These duties
are prominent in the Solicitor's Code of Conduct’. (emphasis original)
45.Mr Price added submissions on cases where there has been deliberate
non-disclosure or misrepresentation. In such circumstances, it will only
be in exceptional cases that a court will not set aside an order, having
regard to the public interest in applicants making full disclosure:
Behbehani v Salem [1987] 1 WLR 723, 729 D-E, 734G-H; Congentra AG
v Sixteen Thirteen Marine SA (‘The Nicholas M’) [2008] EWHC 1615
(Comm); [2008] 2 Lloyd’s Law Reports 602.
THE HEARING ON 31 MARCH 2015
46.Applications for permission to serve proceedings out of the jurisdiction
are normally made on paper. But on this occasion the Claimant was
represented by experienced junior counsel. This was thought appropriate
largely because the case is governed by the Defamation Act 2013 s.9.
47.In addition to the application notice and the draft Claim Form, there was
evidence before the court. This was the two first witness statements of the
Claimant and of his solicitor respectively. There is no requirement in the
CPR that there be draft Particulars of Claim available to the court at that
stage, but it is desirable that there should be. It focusses the minds of the
applicant and of the court on what the claim is, and so on what is material
to be disclosed to the court.
48.Counsel submitted a nine page written submission. The pages of that
submission which might have been of particular assistance to the Master
were the four related to the Defamation Act 2013 ss 1 and 9. This case
may be the first case under s.9 to have come before the court.
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49.The reasons advanced for the submission that England is clearly the most
appropriate place to bring the action are included in a list of 12 subparagraphs, in addition to the submission that there is a substantial risk
that the Claimant would not receive a fair hearing in Serbia. Of the 12
matters listed (all of which are referred to in one form or another
elsewhere in this judgment) the following three are of particular
significance
to
the
issues
that
I
have
to
decide:
‘(f) According to Lawrence Godfrey, an IT expert, the Politika website
and the Blic website together ordinarily receive a very rough and
approximate 12,000 daily views [para 24 of the solicitor’s witness
statement]; (g) The Article on the Politika website and the Blic
republication appear on the first page of a www.google.co.uk search
result under “Nandi Ahuja”… (h) The Claimant has been contacted by a
significant number of friends and associates from within this jurisdiction
and by others with substantial links to England and Wales who have
accessed the Articles or their reasonably foreseeable republications
online…’
THE ISSUES
50.In addition to the issue of whether the Claimant failed in his duty to give
full and frank disclosure to the Master, the main issues that arise, in
respect of each of the claims in misuse of private information and
defamation, are: whether there is a serious issue to be tried, and whether
the Claimant has satisfied the court that there is a good arguable case that
the claims fall within one or both of the sub-paras of PD6B relied on. In
relation to the claim in misuse of private information there is the issue of
whether in all the circumstances England is clearly or distinctly the
appropriate forum for the trial and that in all the circumstances the court
ought to exercise its discretion to permit service out of the jurisdiction. In
relation to the claim in defamation there is the issue whether I am
satisfied that, of all the places in which the statement complained of has
been published, England and Wales is clearly the most appropriate place
in which to bring an action in respect of the statement.
51.The main points taken for the Defendants on non-disclosure are that the
Claimant failed in his duty of full and frank disclosure in a number of
respects, that his solicitor did so deliberately in failing to disclose his
Serbian nationality and upbringing, and that the Claimant did so in the
extent of his interests in, and family connections to, Serbia. In relation to
the defamation claim the main points are that the words complained of
were not defamatory within the meaning of s.1 of the Defamation Act
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2013 or at all, and that the Claimant has failed to satisfy the test in s.9. In
relation to both the defamation claim and the misuse of private
information claim the Defendants’ case is that the Claimant has failed to
demonstrate that real or substantial damage occurred in this jurisdiction,
or from an act committed within this jurisdiction. In relation to the misuse
of private information claim, the Defendants further contend that England
is not clearly the appropriate forum for the trial because Serbia is the
natural forum (in that the action has the most real and substantial
connection to that jurisdiction), and justice does not require that
permission should nevertheless be granted to proceed in England.
NON-DISCLOSURE
52.The main failures which Mr Price relies on relate to the Claimant having
Serbian nationality and a Serbian passport, and property and other
connections with Serbia not referred to in the evidence before the Master,
the overstatement of the numbers of publishees in England (12,000 hits
per day, of which 1000 were on Politika, whereas a realistic figure for the
Articles in Politika is of the order of 70 in all by 15 July, and the
publications of Blic are not sued on), the omission to adduce the evidence
of publications in, and his connections with, places other than England
and Serbia (being information which I have held could reasonably have
been obtained by the Claimant), the failure to identify which of the
people whom he named as having approached him had read the words
complained of in England, and the failure to disclose evidence of the
cogent kind required if a court is to decide that there is a risk that the
Claimant would not receive a fair trial in Serbia.
53.In relation to all of these matters, save the first, Mr Price accepted that the
failure was not the result of any intention to deceive, but rather of
misjudgement. In relation to the Serbian nationality, passport and
properties he alleged that it was deliberate.
54.There is no dispute that the failure to disclose the Claimant’s nationality
was a serious one. Mr Tomlinson accepted that and extended the
Claimant’s apologies. The matter is the more serious because at the start
of the hearing the Master asked ‘What nationality is the claimant?’ and
counsel replied ‘He is an Indian national. He has been resident in this
jurisdiction….’ The Claimant’s solicitor, who was present, did not
intervene to ensure that the Master was told that the Claimant was also of
Serbian nationality. The misleading information given to the court on 31
March was not corrected until after the Defendants had raised the issue.
Ms Georgian made a witness statement on 22 July in which she reported
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that the Claimant is referred to as having joint Indian and Serbian
nationality. This is in a brochure from the London Business School,
which he once attended. The Defendants’ application to set aside service
was issued on the same day. It identified the non-disclosure of the
Claimant’s Serbian nationality, and his upbringing, interests and family
connections with Serbia, as the first ground relied on. On 22 October
2015 the Claimant made his second witness statement. In that he accepted
that he did have Serbian nationality and a passport, which he used for
travel to Serbia, but said that he had begun the process of formally
relinquishing Serbian citizenship. He explained his failure to mention
those matters which he accepted to be true about his connections with
Serbia on the basis that he did not believe them to be important, and that
he considered the core of his life to be in London.
55.The Defendant’s legal representatives interpreted this evidence as
meaning that the Claimant had not disclosed these matters to his own
solicitors. If he had disclosed them to his own solicitors, Mr Price
submitted, then the court should infer that the solicitors would have
informed the court. As a result of the submissions advanced by Mr Price,
further evidence was filed in the form of a third witness statement by the
Claimant’s solicitor dated 4 November 2015. He stated that the day
before the application to the Master the Claimant had informed his
solicitors that he had a Serbian passport. Mr Cowper-Coles, who received
the call, said he discussed with a partner, and, he says, with counsel,
whether this should be disclosed to the court, and that they all took the
view that it was not material. Counsel has explained that she did not
recall having been told of the Claimant’s Serbian passport the day before
she gave the misleading answer to the Master, and that is why she gave
the answer to the Master that she did.
56.At the start of the hearing before me Mr Price applied for an adjournment
to consider, and if possible investigate further, whether this nondisclosure was deliberate, and whether privilege had been waived. I
refused the adjournment for reasons I gave at the time. Mr Cowper-Coles’
witness statement of 4 November 2015 makes clear that the decision not
to disclose was deliberate in the sense that it was a considered decision,
although he says it was not with intent to deceive. Further notes have
been submitted to me on this topic in writing after the end of the hearing.
It is accepted for the Defendants that counsel’s failure to disclose the
Claimant’s Serbian nationality was not intentional. But the Defendants
remain critical of the conduct of his solicitors. In this context, it is
common ground that the court should draw no distinction between the
Claimant and his legal representatives.
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57.I accept that it is a matter of concern that, in the context of this case, the
materiality of the Claimant’s Serbian nationality was not recognised by
the Claimant’s solicitors. The difference in recollection between solicitor
and counsel is a further cause for concern, as is the omission by the
solicitors to inform the court that the Master had been misled at the
hearing in March. The Master’s question related to objective facts, not to
the Claimant’s subjective view of his nationality. But these proceedings
are not an appropriate occasion for investigating this matter further,
assuming (which I doubt) that any further investigation in the course of
these proceedings could be conducted consistently with the requirements
of justice to all concerned and the overriding objective for the conduct of
this case (which includes proportionality). Any investigation would be a
matter for the regulatory authority. I make no adverse finding against any
individual.
58.Although Mr Tomlinson accepts that the Claimant’s Serbian nationality
should have been disclosed, he submits that a claimant’s nationality is, at
most, only of limited relevance to the question as to what is the most
appropriate place for an action to be tried. He submits that in this case the
evidence weighed heavily in favour of granting the application. The other
matters disclosed in the evidence before the Master, and in the words
complained of themselves, made clear that he has substantial links to
Serbia. He submits that the court should not discharge the order made by
the Master in any event.
59.In my judgment the order must be set aside. This conclusion would
follow in any event, in my view, from what I have found to be the
requirements of s.9, and the absence of any quantitative evidence of
publication in countries other than England and Serbia (the fact of global
publication was disclosed in the letter of 23 February). The same
conclusion would also follow independently, in my view, from the large
difference between the figures for publication in England put before the
Master and the figures as they have been put before me. But
independently of these, in my judgment the non-disclosure of the
Claimant’s Serbian nationality, and the fact that the court was misled as it
was, taken by itself, would have required the order to be set aside.
60.Before deciding what other order should be made, I shall consider the
other issues, the answers to which may assist in deciding what should
follow.
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ISSUES IN THE DEFAMATION CLAIM
61.Because s.9 of the Defamation Act sets a higher threshold for the
Claimant to surmount, I shall consider this claim first. Mr Price submits
that there is no serious issue to be tried because the words complained of
are not defamatory within the meaning of s1(1). of the Defamation Act.
That reads: ‘A statement is not defamatory unless its publication has
caused or is likely to cause serious harm to the reputation of the
claimant’. He submits that the Claimant has failed to establish a
sufficiently strong case on harm.
62.This is not an application for a determination on meaning, although it is
necessary to consider issues of meaning. The words complained of refer
to the Claimant. So the first stage in this case is to determine the strength
of the Claimant’s case on whether the words are defamatory. For this
purpose the principles applicable are those at common law. Well-known
guidance is given in Jeynes v News Magazines Ltd [2008] EWCA Civ
130. The second stage is to consider whether the harm test under s.1 has
been satisfied. See Lachaux v Independent Print Ltd [2015] EWHC 2242
(QB); [2015] EMLR 28 paras [13]-[14, [144]-[145] and [151]-[152]
63.In my judgment the Claimant has raised a serious issue to be tried against
the First and Second Defendants that the words complained of do bear a
meaning at least as serious as that there are grounds to suspect he was
involved in the evasion of tax which he or others should have paid in
Serbia. And I accept that he has raised a serious issue to be tried that an
allegation of suspected involvement in tax evasion is a serious one for a
person in the Claimant’s business. The Articles are meant to be taken
seriously, and come from a publisher of high standing in Serbia. The
Claimant has adduced evidence which also satisfies me that he has raised
a serious issue to be tried that the words complained have come to the
attention of a significant number of people who read them in England. I
am satisfied to the same extent that the court should infer that the words
have been read in England by a further significant number of people who
have not contacted him about them, and that so long as the words remain
accessible on the Politika website, it is likely that he will suffer further
harm to his reputation in England.
64.The claim against the Third Defendant is different because the tax
evasion meaning arises from the photographs and the title, whereas the
Third Defendant’s evidence is that, as a journalist, she was the author of
the text alone. This is what anyone experienced in defamation
proceedings would expect. I need say little about the strength of the claim
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against the Third Defendant. If she is not responsible for the images
published with her text, the question whether there is a case against her
depends upon whether any meaning relating to the Serbian Dinar is a
separate defamatory meaning (she does mention the effect on the Dinar).
While I reach no conclusion on this, I do say that I would require some
persuasion to find that a report of transfer of funds by a businessman
from one country to another becomes discreditable in the mind of a
reasonable reader simply by reason of the adverse impact the transfer is
said to have had on the exchange value of the currency of the country
from which the transfer is made. Compare Modi v Clarke [2011] EWCA
937, paras [12] and [30]-[36].
65.There is a similar consideration in relation to the claims against all the
Defendants based on the Google Translate text. First, that too appears
without the images, although in order to get to the translated text it may
be that some or all readers will have first looked at the Serbian webpage.
Further, as Mr Price submits, the Google Translate application can garble
the original (and in fact did so in this case in relation to the Disclaimer),
and there may be differences in the translations produced for each
individual reader. This was a factor considered by Sharp J (as she then
was) in El Diwany v Hansen [2011] EWHC 2077 (QB). However, the
present case is different, in that there is a direct link to the translation
application from the Politika website, and the evidence is that the
translations into English are better, and more consistent with one another,
than appears to have been the case in El Diwany. So I find that the
Claimant has raised a serious issue to be tried on this point.
66.I am also satisfied that the Claimant has brought himself within both the
sub-paras of Practice Direction 6B para 3.1 upon which he relies. An
injunction is a normal remedy to give to a successful libel claimant. As
the editors of the above-mentioned text books remark, an English court is
the only court that would grant an injunction specifically restraining
publication in England.
67.However, and independently of the question of whether the Claimant is at
risk of not receiving a fair trial in Serbia, I am not satisfied that, of all the
places in which the statement complained of has been published, England
and Wales is clearly the most appropriate place in which to bring an
action in respect of the statement. As the letter of 23 February 2015, and
the witness statements of the Claimant make clear, his case is that he has
suffered damage in many countries in which he has important business
interests, and in which he deals with important counter-parties. Serbia is
one of these countries, but by no means the only one. The letter of 23
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February 2015 gives no threat to take legal action in an identified
country.
68.The only specific evidence (other than the Claimant’s statements) about
the number of hits on the Articles suggests that he has suffered, and is
likely to continue to suffer, damage to his reputation in other countries at
least as great as that he complains of in England. I refer to the hits from
Austria and the USA (in each case many times the number from the UK),
and to the Claimant’s evidence that he spends time and owns properties in
both of these places. But he has not provided the court with material upon
which the court can assess whether any of Serbia, Austria or the USA (or
any other place) might be more appropriate.
69.In the letter of 23 February the Claimant’s solicitors wrote that he ‘and
his family … are very private individuals guarding their privacy closely’,
and alleged that the Defendants have been ‘reckless’. So I cannot assume
that a claim for defamation in a country whose laws are favourable to the
Claimant (if such there be) would have any less strength than a claim in
England under English law.
70.I also bear in mind the statement in Gatley, which is in my view correct,
that the court will also wish to consider such factors as the convenience
of witnesses and the relative expense of suing in different jurisdictions.
As to the statements by the text book writers that it would be unsurprising
if claimants resident in England and Wales were to surmount the new
threshold more readily than foreign claimants, I can see the force of that
in respect of a claimant who can satisfy the court that the main harm to
his reputation will have been done in England. But in my judgment this
Court is no position to reach that conclusion in relation to the Claimant
on the limited evidence he has chosen to put before the court. This is
because he states that his reputation is global, but his specific evidence
relates only to England and Serbia.
71.The Claimant is not alone in facing a difficulty with s.9 as a result of his
global reputation. In one sense his professional achievements and family
wealth make him a rare member of a small elite in the world of business.
But members of this elite class are attracted to London, and many of them
own properties in London, and spend as much time in London as the
Claimant says that he does. And it is in the public interest that the
reputation of such people should not be unlawfully damaged. Their
business activities are of importance to the economic well-being of this
country. It may be that in addressing the complaint that non-residents
with a tenuous connection to London have sought to vindicate their
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reputations in England, Parliament has so framed s.9 as to make it unduly
difficult for some people who are resident or domiciled here to vindicate
their reputations. If so, Parliament was well aware of what it was doing,
because the issue was discussed during the passage of the Bill. And
whether Parliament intended this consequence or not, the court can only
do anything about it if, and to the extent that, claimants put before the
court the evidence of the harm to their global reputations which enables
the court to be satisfied that, of all the places in which the statement
complained of has been published, England and Wales is clearly the most
appropriate place in which to bring an action in respect of the statement.
72.It follows that, independently of the issue of non-disclosure, s.9 of the
2013 Act requires that I set aside the Master’s order giving permission to
serve the claim form out of the jurisdiction, in so far as it includes claims
in defamation. I shall invite further submissions as to whether or not I
should also make a declaration that the court does not have jurisdiction to
hear and determine this claim in defamation against the Defendants.
ISSUES IN THE MISUSE OF INFORMATION CLAIM
73.There is little dispute that there is a serious issue to be tried on the claim
for misuse of private information. Financial information of the kind in
question in the words complained of is private information. In so far as it
is commercially confidential, then it might be said that the disclosures in
England were most likely to have occurred only after the information had
entered the public domain. Although he refers to his claim as relating to
private information (which usually connotes personal information) the
Claimant does complain of the commercial quality of the information.
For example, he refers to the difficulties he has encountered with the
creditors of Victoria Group. But it is not only about that which the
Claimant complains. He also complains of the impact on his private life
and that of his family of the information being disclosed. The worst
impact of that on his private life is the fears which he states that he now
has for the safety of himself and his family when they are in Serbia.
74.Nevertheless, for the purposes of the present application I accept that he
has a good arguable case that his private information has been misused by
publication on the internet in the UK and for that matter in the other
countries from which there were hits on the Politika website. There is a
good arguable case that that damage is to be taken to have been suffered
in England, where he resides. I take into account that there may be a
defence raising the public interest, but on the information at present
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available to the court, that prospect does not affect my decision that the
Claimant has the necessary serious issue to be tried.
75.As to the prospect of the Claimant obtaining an injunction, an English
court might need some persuasion to grant such an injunction in respect
of this cause of action, if the words complained of remain accessible to
those conducting searches on the Claimant in the USA, and the other
countries which the Claimant has referred to. Compare the Spycatcher
litigation. But I am satisfied that the publication of private information in
England is a tort within the sub-paragraph of PD6B para 3.1(9). I am
satisfied to the necessary extent that damage has been sustained, and will
be sustained, within the jurisdiction and that damage which has been or
will be sustained results from an act committed, or likely to be
committed, within the jurisdiction.
76.The main issue in respect of this claim is whether in all the circumstances
England is clearly or distinctly the appropriate forum for the trial, and
that in all the circumstances the court ought to exercise its discretion to
permit service out of the jurisdiction. To answer this question the court
must consider whether the Claimant is at risk of not receiving a fair trial
in Serbia (as to which see below), and other factors. I consider first what
is the natural forum for the pursuit of the claim, in the sense of being the
jurisdiction with which the claim has the most real and substantial
connection.
77.The Claimant lists factors which he submits make England that
jurisdiction. These include his connections with this jurisdiction, and that
the disclosure occurred (that is, the tort was committed) in this
jurisdiction. The Defendants submit that Serbia is the natural forum for
the pursuit of the claim. They list the following factors. The words
complained of were part of an investigation into financial matters of
public interest in Serbia, and a defence of what is in the public interest in
Serbia is most suitably tried in Serbia. The original disclosures, both to,
and by, the Defendants were in Serbia, and that is where disclosure has
been made to much the greatest number of people. Much of the damage
of which the Claimant complains relates to Serbia, both his difficulties
with Victoria Group creditors, and his concerns for his and his family’s
safety in Serbia. Further, the conduct of the Defendants is to be judged by
the law and professional standards applicable in Serbia.
78.In my judgment Serbia is the place with which the claim for misuse of
private information has its most real and substantial connection,
notwithstanding that the disclosure complained of in this action is the
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disclosure in England. The words complained of refer to the Claimant
because he had substantial connections with Serbia. He had a bank
account in Serbia, and was a member of the Supervisory Board of a
Serbian enterprise. In the words complained of the Defendants contend
that disclosure was in the public interest in Serbia. The harm complained
of is closely connected with Serbia. A Serbian court would (if conducting
a fair trial) be better placed to assess the strength of the Defendants’
public interest defence, the propriety of the conduct of Serbian
journalists, and the Claimants’ concerns about his and his family’s safety.
79.I turn then to the other circumstances to which the court must have
regard. The Claimant relies on the following. He contends that the
Defendants have demonstrated that they are able to engage in litigation
here, the issues of fact are likely to be limited, the Second Defendant is
familiar with London and can speak English, and the difficulties in
travelling to which the Third Defendant refers can be overcome by
receiving her evidence over a video link, or in some other way.
80.The Defendants contend that all the parties, including the Claimant have
Serbian nationality and residences in Belgrade (it is at this stage of what
the court has to consider that the Claimant’s Serbian nationality and
passport are most clearly facts which are highly material to what the court
has to decide). They also all speak Serbian. Serbian is the language, and
Serbia is the place, in which all but a small part of the disclosures have
been made. The undisputed evidence of the Defendants is that the cost of
living in Serbia is a fraction of that in London, and that earnings are
proportionately lower. The cost of a trial in England, including bringing
witnesses here, would clearly be very expensive indeed by Serbian
standards (they would be expensive enough by English standards). On the
other hand, unlike the Serbian witnesses, who would need visas and
accommodation in London, the Claimant, as the holder of a Serbian
passport, and the owner of an apartment in Belgrade, would suffer no
significant cost or inconvenience in bringing proceedings in Serbia.
81.Independently of the issue of whether the Claimant is at risk of not
receiving a fair trial in Serbia, it is my judgment that, in all the
circumstances, Serbia, not England, is clearly and distinctly the
appropriate forum for any trial of this claim for misuse of private
information.
JUSTICE IN SERBIA
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82.In support of the submission that the Claimant is at risk of not receiving a
fair trial in Serbia the Claimant relies on two types of evidence: general
evidence about the administration of justice in Serbia, and specific
evidence about this case.
83.The specific evidence is that the words complained of include a quotation
attributed to the Prime Minister of Serbia, set out in para 6 above. The
Claimant also refers to the part ownership of the First Defendant by the
state of Serbia. The Claimant’s solicitor referred to a summary of several
reports on the state of Serbia’s judiciary and media conducted by various
international and supranational bodies including the European
Commission, the World Economic Forum, the United Nations
Development Programme and the United States Department of State. He
exhibited an extract from the European Commission’s report of October
2014. He summarises these reports as concluding that, despite the recent
adoption of legislation to improve its independence, the Serbian judiciary
falls short of the standards that would be expected for parties to receive a
fair and independent trial in accordance with Art 6 of the ECHR.
84.Passages of the Report which seem to me to be of most relevance are the
following:
‘Regarding the independence of the judiciary…. The constitutional
and legislative framework still leaves room for undue political
influence affecting the independence of the judiciary, particularly in
relation to the career of magistrates… Some judges from higher and
appellate courts were confronted with direct attempts to exert political
influence over their daily activities without the High Judicial Council
properly defending their independence…. The impartiality of judges
is ensured through the constitutional and legal framework. However
practical implementation is hampered by the fact that the system of
random allocation of cases is not yet automated in all courts, which
provides scope for circumventing the system … Fundamental rights –
Serbia has ratified all the main international human rights instruments
and is on track with reporting to the UN human rights mechanisms.
Nevertheless, implementation needs to be more consistent. During the
reporting period, the European Court of Human Rights delivered 29
judgments on 73 applications against Serbia. In 27 judgments the
Court found that Serbia had violated the European Convention on
Human Rights and Fundamental Freedoms. The majority of the
judgments refer either to violation of the right to a fair trial due to the
length of the procedure or to the non-enforcement of domestic
judgments…’
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85.The Claimant’s solicitor expresses the fear that the highly influential
position of the First Defendant as a media organisation gives rise to a real
risk that Serbian proceedings against it could be influenced by the media.
He also expresses ‘substantial concern’ that the fact that the First
Defendant is owned as to 50% by the Government of Serbia suggests
overt political influence.
86.The Defendants’ evidence includes other reports, and specific evidence
relating to 500 proceedings brought against it in Serbia between 2011 and
2015. Most of these were employment disputes. But 45 related to media
law, of which it lost 16. It contends that this evidence undermines the
Claimant’s case on this point. The Defendants also note that, although
the Claimant’s solicitor’s letter of 23 February includes a statement that
he has retained counsel in Serbia, no Serbian lawyer has given evidence
to support the Claimant’s contentions as to the administration of justice in
Serbia. They are no more than the views expressed by his solicitor.
87.Further, Mr Price submits that the Claimant’s reliance on Sloutsker is
misconceived. In that case the concern was that, whether the claimant
won or lost any proceedings in Russia, no vindication could be achieved,
because the result would be understood by the public to have been
achieved by corruption: Sloutsker paras [53] and [56], and see Berezovsky
at 1024B. That is not the Claimant’s case in relation to Serbia.
88.It is not necessary for me to consider in detail the evidence adduced by
the Defendants. In my judgment the evidence relied on by the Claimant
falls well short of the ‘cogent evidence’ that the court must have before it
can find that ‘there is a real risk that justice will not be obtained in the
foreign court by reason of incompetence or lack of independence or
corruption’ (para 22 above). I see nothing in the remarks attributed to the
Prime Minister of Serbia which has prejudiced the Claimant’s right to a
fair trial, or that raises a real risk that any trial would be unfair.
89.It follows that, independently of the issue of non-disclosure, I would set
aside the Master’s order in relation to the claim in misuse of private
information, as well as in relation to defamation.
CONCLUSION
90.For these reasons the order giving permission to the Claimant to serve
these proceedings on the Defendants out of the jurisdiction will be set
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aside. I invite further submissions from the parties, if so advised, as to
any further order that I should make.