EuroEco Fuels (Poland) Ltd & Ors v Szczecin and Swinoujscie Seaports Authority SA & Ors

Reference: [2019] EWCA Civ 1932

Court: Court of Appeal (Civil Division)

Judge: Lewison, Bean and Baker LJJ

Date of judgment: 11 Nov 2019

Summary: Tort - Defamation - Libel - Jurisdiction - Regulation (EU) No 1215/2012 ("Brussels Recast Regulation") - Arts 7(2) & 30 - related actions - declining jurisdiction - stay of proceedings - Shevill

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Appearances: Adrienne Page QC - Leading Counsel (Claimant)  Greg Callus (Claimant) 

Instructing Solicitors: Mishcon de Reya LLP for the Claimants

Facts

The Cs (Appellants), of whom C1 was a Polish company and Cs 2 – 4 were a company and two individuals (all English), sued Polish domiciled Ds (Respondents) for libel in respect of words spoken by D1 to journalists, and a press release published by the Ds, in Poland and in Polish. Cs confined their claim to seeking damages for republications of the words in England by means of access to Polish news and media sites who reported the words, relying on the so-called ‘mosaic approach’ sanctioned by the ECJ in Shevill v Presse Alliance.

At the time the defamation action was commenced, C1 and D1 were already engaged in litigation in Poland. C1 held a lease from D1 of a site at the port of Szczecin where it operated an alternative petrochemical production plant. C1 was being sued by D1 for causing alleged nuisance by odour from its plant and the words complained of in the defamation claim had imputed to C1 that its plant emitted (toxic) benzene in excess of the limits permitted under  Poland’s environmental laws.

Ds contested the English court’s jurisdiction to try the defamation claim and applied to the Judge (Nicol J) for an Order declaring that the English court has no jurisdiction on the ground that no harmful event had taken place in England; alternatively, that it should decline to exercise any jurisdiction  on the ground that the Polish nuisance action and the English defamation claim were related actions for the purpose of Art 30 of EU Regulation 1215/2012 (“Brussels Recast Regulation”). The Judge held that the Court did have jurisdiction but found that the English and Polish actions were related within the meaning of Art 30(3) and granted the Order sought by Ds, declining jurisdiction, the English court having been the court second seised.

The Cs appealed.

Issue

  1.  Whether the English defamation action and the Polish nuisance action were related actions within the meaning of Art 30(3) of the Brussels Recast Regulation.
  2.  Whether the Judge had a discretion to decline jurisdiction or stay the English proceedings and if so whether that discretion had been properly exercised.

Held

The appeal was allowed unanimously. The Judge had had no discretion to decline jurisdiction nor to order a stay of the English defamation proceedings under Article 30 of the Brussels Recast Regulation.

Comment

Much of the argument on the appeal – and arguably the most interesting – was the difficult question of how to reconcile the related action provisions of the Brussels Recast Regulation with the ‘mosaic approach’ sanctioned by the Grand Chamber of the ECJ in Shevill v Presse Alliance [1995] 2 AC 18. Under the mosaic approach a defamation claimant has the option to bring separate claims in each jurisdiction in which they claim to have suffered harm to reputation, but confined to the harm to reputation suffered in that jurisdiction, as an alternative to bringing a claim for all the damage suffered in the jurisdiction of the defendant’s domicile. (This was not a case which on the facts engaged the expansion of options available since Shevill was decided, as held by the CJEU in eDate Advertising GmbH [2012] EMLR 12 and Bolagsupplysningen [2018] QB 963). For the Appellants, it was contended that the principle established in Shevill should preclude a court declining jurisdiction under the related actions provisions on the ground that in another Member State jurisdiction there is a court first seised of a defamation claim in respect of the same defamatory matter brought compatibly with the Mosaic approach (and therefore should not be declining jurisdiction where the claim in the court first seised was a nuisance action where the risk of conflicting judgments was comparatively slight). The Respondents contended the opposite.

However, the court reached its unanimous decision in the Claimants’ favour without deciding this point, which by a majority they preferred to leave for decision in a case in which it mattered. As it was put by Lewison LJ: “On one view, Shevill (and after it eDate) give a claimant the substantive right to sue in each member state where the libel has been published, with the consequence that that right is not to be taken away by procedural means. On another view, the mere fact that there is a right to begin proceedings in a particular member state does not entail the consequence that the claimant is entitled to prosecute those proceedings all the way to trial. There is something to be said for each point of view.”