BVC v EWF

The Claimant (“C”) brought a claim against the Defendant (“D”) for damages for misuse of private information and harassment. On 27 June 2018, C made an urgent, ex parte, application for an interim injunction to restrain the threatened publication of private information on a Website.

Nicklin J granted an interim injunction on 27 June 2018 with a return date of 4 July 2018. The order of 27 June 2018 permitted service to be given by means of email to the D’s identified email addresses. C’s solicitor served the relevant documents by email on 27 June 2018.

D first made contact with C’s solicitors, by email, on 4 July 2018, the day of the return date, telling them that service was not valid because he wasn’t in the United Kingdom. Nicklin J adjourned the return date and continued the interim injunction.

D filed an Acknowledgment of Service on 12 July 2018, indicating again his intention to challenge the Court’s jurisdiction. D’s application challenging jurisdiction was dated 24 July 2018 and was issued on 31 July 2018. It was brought on the basis that (i) the Court had no jurisdiction to try the claim and (ii) that service of the claim was invalid. D served the application on the Claimant’s solicitors on 23 August 2018.

C was a dual national, having naturalised as a British citizen when he was living and working here, and having retained the nationality of his birth. He was living and working in a South-East Asian country (“State B”), of which he was not a national, but where he had a permanent right of residence, and had been born in a different country (“State A”).

D’s evidence was that he lived and worked in Switzerland, and he had submitted evidence to demonstrate that he was in Zürich on 27 June 2018 when the Claim and accompanying documents were served on him by email.

(1) Should D be granted an extension of time?

(2) Should the Court grant D’s application disputing its jurisdiction?

(3) Should service of the claim form be set aside?

Granting D an extension of time, and dismissing D’s application challenging jurisdiction and to set aside service of the claim form

(1) The CPR provide at r11(4) that an application under Part 11 must be made within 14 days after filing an acknowledgement of service and, at 11(5), that if no application is made within that period, the defendant is to be treated as having accepted that the court has jurisdiction to try the claim. D’s application was issued 19 days after he filed his acknowledgement of service. C did not resist the granting of relief from sanction and the Court had to consider whether it would be appropriate to grant relief of its own initiative, applying CPR rules 3.2(a), 3.3 and 3.9.

D was unrepresented and appeared to have misunderstood the effect of the rules. The delay in issuing the application had no material impact on the litigation and it was appropriate to grant D permission, retrospectively, to file his application to challenge the Court’s jurisdiction on 31 July 2018. In particular, the Court had regard to the interests of justice, bearing in mind the significance of D’s application and the immaterial nature of the breach, as well as the requirement that litigation should be conducted efficiently and at proportionate cost.

(2) Switzerland and the UK are parties to the Convention on Jurisdiction and the Recognition and Enforcement of Civil and Commercial Matters (2007) (“the Lugano Convention”). Article 5(3) of the Lugano Convention provides by way of special jurisdiction that: “A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued … 3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur; …”

C relied on the “centre of interests” principle established by the CJEU in eDate Advertising GmbH v X (Cases C-509/09 and C-161/10) [2012] QB 654 as a basis for special jurisdiction, and submitted that the importance of professional activity in assessing a person’s centre of interests was underlined by the CJEU’s extension of the doctrine in Bolagsupplysningen OÜ v Svensk Handel AB (Case C-194/16) [2018] 3 WLR 59.

D submitted that C’s centre of interests was in State B, or perhaps State A, rather than in this jurisdiction. The Court held that C had a good arguable case (in the sense of a much better argument on the available material) that this jurisdiction is the Lugano Convention State in which he had the centre of his interests. Although he was not currently living here, he was a British national and he had spent many years of his adult life living, working and building his professional and personal reputation in this jurisdiction. The close connecting factors to this jurisdiction had the effect that attribution of jurisdiction to the Court accorded with the aim of ensuring sound administration of justice and efficacious conduct of proceedings.

Second, the Court held that C had proved to the required standard a real and substantial tort committed within the jurisdiction, namely, the cause of action in respect of misuse of private information. If it were necessary to do so, the Court would have rejected D’s challenge to the Court’s jurisdiction on this alternative, more limited basis.

(3) Nicklin J had granted C permission to effect service of the Claim Form and Orders by alternative method, namely by means of email. However, such permission was granted on the understanding that D was within the jurisdiction and service would be effected within the jurisdiction. In fact, it was clear that D was in Switzerland on 27 June 2018 when he received the email by which the Claim Form and the Order were served on him, and so the permission did not constitute permission to serve D out of the jurisdiction by email.

C sought an order pursuant to CPR r6.15(2) (and 6.27), regularising the service by email that was effected on 27 June 2018, or alternatively an order pursuant to CPR r.6.16(1) dispensing with the requirement to serve the Claim Form.

The threshold is high for making an order retrospectively that the service effected by email out of the jurisdiction, in a State party to the Hague Service Convention, was good service (Cecil v Bayat [2011] 1 WLR 3086 at [61]). Nevertheless, this high threshold was met in the circumstances of this case.

In Cecil the Court of Appeal recognised that circumstances such as these, where urgent injunctive relief has been obtained without notice, were the kind of circumstances that could potentially be regarded as exceptional or special. In this case, service of the proceedings out of the jurisdiction by email was the only effective means of protecting C’s legal rights, and the email communication to D brought the proceedings very effectively to his attention and enabled him to make the application challenging the Court’s jurisdiction.

The Court made an order pursuant to CPR r6.15(2) and r6.27 that the steps already taken to bring the Claim Form and the Orders of 27 June 2018 and 4 July 2018 to the attention of D by an alternative method, namely, sending those documents to him by email, constituted good service.

The interim injunction in this case was (it emerged after the fact) granted in circumstances where neither party was in the jurisdiction. The claimant relied on the rules of special jurisdiction derived from the Lugano Convention and the recast Judgments Regulation. The principal basis for assuming such jurisdiction by finding that a member state is the centre of a person’s interests is that the state is the place of their habitual residence, but eDate and Bolagsupplysningen both recognise the potential importance of a person’s pursuit of a professional activity as an alternative route to doing so. The Court’s application of the “centre of interests” doctrine here appears to have been the first time that a Court in England and Wales has assumed jurisdiction on these grounds in a privacy claim.