On 23 November 2015 Sir Michael Tugendhat set aside an order for service out of the jurisdiction of proceedings for the misuse of private information and libel which had been made by Master Roberts on 31 March 2015 in respect of an article in Politika, a Serbian language newspaper circulating in Serbia and neighbouring countries in hard copy and available in this country only on the internet. Sir Michael held that the Claimant was in breach of his duty of full and frank disclosure and the case is a significant reminder of the duty of candour that rests upon a claimant when seeking permission to serve outside the jurisdiction under CPR 6.36 and of the perils of over-enthusiastic attempts to squeeze foreign claims into this jurisdiction. The case is also important on the question of how section 9(2) Defamation Act 2013 requiring evidence that England and Wales is "clearly the most appropriate place in which to bring an action in respect of the statement" is to be interpreted and the burden it places on a Claimant which the judge decided had not been discharged in this case.
The claim was brought by a businessman who claimed that his closest ties were in London pointing out that he had studied there and been resident there and ran a successful UK-based company and that he spent most of his time in the UK, India and Austria. He did disclose that he was a member of the Supervisory Board of a large commercial enterprise in Serbia but he failed to disclose to the Master that he was also of Serbian nationality and travelled to Serbia using his Serbian passport, that his mother was half-Serbian; that he was raised in Serbia until he was aged nine and that his foreign residences included a substantial apartment in Belgrade.
The allegations were of a serious nature relating to the disclosure of bank transfers said to have been made by him to Switzerland raising suspicions that he was guilty of unlawful tax evasion. All the articles were written in the Serbian language but reliance was placed on Google Translate where one could obtain a reasonably accurate and consistent version of the article. The case proceeded on the basis that the words complained of were capable of causing serious harm threshold meeting the threshold under Section 1 Defamation Act 2013 and that the allegations related to private information.
The Claimant had in accordance with Para 3.1 of Practice Direction 6B to prove that there was a serious issue to be tried on the merits with a real prospect of success, that there was a good arguable case that the claim fell within one or more classes of case in which permission to serve out of a jurisdiction may be given and that England was clearly the appropriate forum for the trial of the dispute. Had that been the sole issue, Sir Michael would probably have held that there was a good arguable case for service outside the jurisdiction and serious issues to be tried.
Sir Michael approved the description in Gatley on Libel and Slander at Para 24.29 as to the relevant factors to be considered under Section 9 Defamation Act 2013 in deciding whether or not England and Wales was clearly the most appropriate place in which to bring the defamation action such as: the proportion of times that the article was published in England as opposed to elsewhere; the amount of damage to the claimant's reputation in England and Wales compared with elsewhere; the extent to which the 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 as well as the convenience of witnesses and the relative expense of suing in different jurisdictions.
The law imposes a duty of full and frank disclosure on all applications made without notice such as an application for permission to serve proceedings out of the jurisdiction and this involves a full and fair disclosure of those facts which it was material for the court to know.
The proceedings followed a rather surprising course. There appeared to be some evidence that the number of publishees in England had been considerably overstated. It seems that there were no more than 70, although the court was initially given the impression that the downloads were in the thousands. It appeared that inadvertently a misleading answer had been given to the Master about the Claimant's nationality owing to a misunderstanding in that the Master was wrongly told – when he asked - that the Claimant was an Indian national. After permission had been given the defendants happened to discover from a brochure from the London Business School that the Claimant was referred to as having joint Indian and Serbian nationality. However, even more significantly and surprisingly, the Claimant's solicitors had deliberately taken the view that it was not necessary to disclose that the Claimant had a Serbian passport or that he was of Serbian nationality. This, in the view of Sir Michael, had led to the court being misled and the failure to disclose this was a serious one and a matter of concern. Leading Counsel who had not appeared before the Master accepted that the Claimant's Serbian citizenship should have been disclosed and apologised for the omission. However, he was unable to persuade the judge who concluded that the Master had been misled to do other than to conclude that this was a material non-disclosure and to set the order for service outside the jurisdiction aside. The case underlines the danger of deciding to omit evidence as a matter of judgement- in this instance misjudgement – when making an ex parte application to the court.
This was the first time the Court had considered Section 9 Defamation Act 2013 and the question of proving that England and Wales was clearly the most appropriate place for the case to be heard. The judge recognised that this placed a heavy evidential burden on the Claimant in multi-jurisdictional publications in that he would have to produce evidence of damage in all the relevant countries where he had a reputation to enable the court to decide the relevant merits of bringing an action in a particular country. It could be unduly difficult for Claimants but that was what Parliament evidently had in mind. It will certainly add a layer of expense to such applications which engage Section 9. The judge considered that the case had its most real and substantial connection with Serbia and that there was no compelling reason why the case could not be heard in Serbia. He did not consider that there was sufficient evidence to suggest that the claimant could not obtain a fair trial in Serbia.
The jurisdictional test in relation to the misuse of private information was somewhat different for deciding whether to permit service out of the jurisdiction. Section 9 did not apply. The question was whether in all the circumstances England was clearly or distinctly the appropriate forum for the trial and that the court ought in all the circumstances to exercise its discretion to permit service out of the jurisdiction. The judge accepted that there was a good arguable case that the Claimant's private information in the form of international bank transfers had ben misused by publication on the internet, although he had some doubts as to whether an injunction was likely to be granted, if the Claimant succeeded. However, the order for service out in relation to the misuse of private information was likewise tainted by the non-disclosure. Furthermore the judge was of the view that the case had a substantial connection with Serbia, that it dealt with an bank account in Serbia, that the harm complained of was closely connected with Serbia and that the Serbian Court would be better placed to assess the strength of the Defendant's public interest defence and to a decide on the propriety of the journalist's conduct. The witnesses spoke Serbian and it would add to the cost of the proceedings for the case to be heard in England. He therefore concluded that Serbia was clearly and distinctly the appropriate forum for the hearing of the misuse of private information claim.