Grovit v De Nederlandsche Bank & Ors
Reference:  EWCA Civ 953;  1 WLR 51
Court: Court of Appeal (Civil Division)
Judge: May, Dyson and Jacob LJJ
Date of judgment: 24 Jul 2007
Summary: Defamation - Conflict of laws - Jurisdiction - Scope of Council Regulation (EC) No 44/2001, art 1(1) - Claimant suing in place where harmful event occurred - Libel claim over letter sent by bank in Netherlands - Bank's reliance on state immunity - Whether claim "civil … matter"
Instructing Solicitors: Beynon Nicholls for the Appellant; Slaughter & May for the Respondent
Cs were involved in the Chequepoint Group of companies which operated money transaction offices. One of the companies applied to D1, the central bank of the Netherlands which exercised regulatory functions in relation to money transaction offices, for registration. In response the bank faxed a letter to the London office of another Chequepoint company, stating its intention not to register the company and giving detailed reasons. These included assertions that the directors and executives of Chequepoint were untrustworthy in a number of respects. The letter was signed by D2 and D3, senior officials in D1. Cs issued a claim for libel against the Ds.
Ds applied for a declaration that they were entitled to immunity under s.14(2) of the State Immunity Act 1978 and/or at common law. Tugendhat J granted the declaration and struck out the claim. Cs appealed.
(1)(2) Whether the action was a “civil … matter” within the meaning of article 1 of Council Regulation EC No 44/2001;
(2) If so, whether Ds were entitled to immunity under s.14(2) of the State Immunity Act 1978 and/or at common law because the proceedings related to things done by the bank in the exercise of the sovereign authority of the state.
Dismissing the appeal:
(1) For the purposes of the Regulation, the claim was not a “civil … matter”. Ds were undoubtedly exercising public law powers. They were performing the role of an administrative authority carrying out governmental supervisory functions which had been delegated to D1 by the Dutch Government to protect the integrity of the financial system in the Netherlands. These functions included dealing with the application for registration. The letter complained of was sent in performance of those functions. If there had been a challenge to the lawfulness of the letter under English domestic law, it would have been by way of judicial review and not in a private law claim; that is because the sending of a letter was a public law function. The fact that incidentally the letter contained libellous material did not deprive it of its essentially public law character.
Whether the Judgments Regulation applies to a civil law claim depends on the nature of the defendant and the function it was undertaking at the material time and not simply on whether the claim is a private law claim as opposed to a claim for judicial review. Accordingly in certain circumstances, such as those in this case, a libel claim will not fall within the scope of the Regulation.