BW Legal Services Limited v Glassdoor Inc

Reference: [2022] EWHC 979 (QB)

Court: Queen's Bench Division

Judge: Mr Justice Jay

Date of judgment: 29 Apr 2022

Summary: Norwich Pharmacal relief - Allegedly defamatory posts - Whether a declaration should be made that the court had no jurisdiction to try the claim because no valid service had been effected - Whether a declaration should be made that the court should not exercise its jurisdiction because of an exclusive jurisdiction clause in the Defendant's Terms of Use and/or because it was contended that the Claimant obtained an Order improperly or unfairly

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Appearances: Adam Speker QC - Leading Counsel (Defendant) 

Instructing Solicitors: BW Legal for C; Bird & Bird for D

Facts

C is a specialist debt recovery law firm. D, a US company, owns and operates the website www.glassdoor.co.uk as well as its US analogue, www.glassdoor.com The websites allow employees to place reviews about their employers.

C complained about two anonymous reviews posted on the UK website contending that they were defamatory of it and seeking the identities of the posters from D. It issued a Part 8 Claim Form on 9 November 2021 with a draft order supported by a witness statement. It did not seek permission to serve out of the jurisdiction on D but gave an address for service as being c/o Glassdoor Global Limited (GGL), a separate corporate entity within the same group as D based in London. On 19 November 2021 Master Eastman granted the Norwich Pharmacal order on paper and without notice to D and the order was sent by C to D via GGL demanding compliance. D applied to set aside the Claim Form and order under CPR r.11(1)(a) and/or (b) and/or CPR r.23.9.

Issue

  1. Whether there had been valid service of D on GGL for the purposes of CPR r.6.9.
  2. Whether C should have brought these proceedings in the courts of California rather than in this jurisdiction.
  3. Whether C obtained Master Eastman’s Order by unfair and/or improper means.
  4. Whether, in all the circumstances, the Master’s Order should be discharged in light of the foregoing.
  5. Whether the Master’s order should be discharged in any event because conditions for the grant of Norwich Pharmacal relief had not been fulfilled.

Held

  1. There had not been valid service of D by sending the documents to GGL. Notwithstanding the commercial nexus between GGL and D, GGL is not D’s representative in the UK. D’s business is not carried on from GGL’s offices in London: Adams v Cape Industries [1990] 1 Ch 433 applied. Accordingly, D was entitled, as of right, to a declaration that the court had no jurisdiction: [52]
  2. C should have brought these proceedings in the courts of California because C signed up to D’s Terms of Use and the claim is caught by the exclusive jurisdiction clause within the Terms of Use. Since that was so, it was for C to show strong reasons for suing here and it failed to do so: [66]
  3. Whilst the Master should not have made the order on paper and without reference to the parties, C had not asked him to deal with it in that way. Once it had been made, C should have corrected the matter but had C succeeded on the other issues, the Court would have been slow to conclude that it had acted so unfairly and improperly that its entitlement to the relief sought would have been lost: [71]
  4. Yes. it followed from the findings on issues 1 and 2.
  5. It was unnecessary for the Court to decide whether C had a good arguable case for Norwich Pharmacal purposes but it would probably have concluded that C, a body that trades for profit, had not proved serious financial loss: [68]-[69]

Comment

Two points of interest arise from the judgment. First, in what circumstances a foreign company can be held to have a place of business within the jurisdiction because a separate legal entity within the same group has a place of business here. It is one of three similar recent decisions, the others being Alli-Balogun v On the Beach Ltd [2021] EWHC 83 (QB) and Hand Held Products v Zebra Technologies Ltd [2022] EWHC 640 (Ch) and will be read with interest by internet companies with a similar business model. Second, on the conclusion that, absent strong reasons to disapply it, the court had to give effect to an exclusive jurisdiction clause.