(1) Kumlin (2) EEW Eco Energy World plc v (1) Jonsson (2) Agerman (3) Östlund (4) Realtid Media AB
Reference:  EWHC 1095 (QB)
Court: High Court, Queen’s Bench Division, Media & Communications List
Judge: Julian Knowles J
Date of judgment: 11 May 2022
Summary: Libel - jurisdiction - centre of interests - Brussels Recast Regulation - serious harm - serious financial loss - rule against Reflective Loss - holding companies - trading reputation - rule in Marinari - causation - applicable law - double-actionability - eCommerce Directive
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Greg Callus (Defendant)
Ben Gallop (Defendant)
Instructing Solicitors: TNT Solicitors for Cs; RPC for Ds
C1 is a Swedish citizen resident in Monaco (but with properties in London) who is a director of C2, an English apex holding company of a group working in the solar electricity sector. C1 sued for libel over 8 articles published online in Swedish by Ds between 29 September and 2 November 2020, and C2 sued in respect of 6 of the same articles (all except the Third and Sixth articles). The claim form was issued 20 November 2020, so the Brussels Recast Regulation applied. Both Cs said that England & Wales was their centre of interests, so advanced claims for global (not just local) publication and internet injunctions. The total sum claimed, including C2’s special damages, €14.5m (approximately £13.1m).
Ds applied for declarations under CPR Part 11 on three grounds:
(1) That there was no jurisdiction at all because Cs did not have a ‘good arguable case’ on each element of the tort in relation to publication in England & Wales;
(2) If publication subsisted, England & Wales was not Cs’ centre of interests, so their claim was a Mosaic Basis claim, and was limited to damages for publication in England & Wales, and limits to non-pecuniary relief.
(3) If global publication was within the Court’s jurisdiction, the Boys v Chaplin exception to double-actionability should apply, such that Swedish law alone should be held to apply to the totality of the global claim, and provisions of Swedish law meant that C2 (as a corporate) could not sue at all, and that only D4 and its editor, D1, could be sued.
(1) Did C1 have a good arguable case of serious harm arising from defamatory publication in England & Wales?
(2) Did C2 have a good arguable case of serious financial loss arising from defamatory publication in England & Wales?
(3) Did Cs have their ‘centre of interests’ in England & Wales?
(1) Only in respect of the Second, Sixth and Eighth articles did Cs have a good arguable case that they were defamatory at common law. Notwithstanding the low publication numbers in England & Wales C1 had a good arguable case in respect of the three articles which were defamatory at common law, but not the other five articles.
(3) C2 did not have a good arguable case on serious financial loss, having regard variously to the rule in Marinari, the rule against Reflective Loss, its position as a holding company where the losses had been suffered by subsidiary entities in its ‘group’, and difficulties of causation.
(4) C1 did not have a good arguable case that England & Wales was his centre of interests. If it was anywhere at all, it was Monaco.
There was no need to resolve C2’s centre of interests, or deal with Ground 3 of the application.
Three of C1’s eight claims would be permitted to proceed here, but only on the Mosaic Basis.
None of C2’s claims, including the whole of the special damages plea, were within the Court’s jurisdiction.
Surely the last of the Article 7(2) Brussels Recast Regulation CPR Part 11 challenges, and so one of the few where the very recent Court of Appeal decision in Mincione could make a difference to the remedies available at trial. Useful outwith the jurisdiction context for the discussion of ‘serious financial loss’ in relation to a holding company.