Napag Trading Ltd & Ors v GEDI Gruppo Editoriale S.p.A & Anor

Reference: [2020] EWHC 3034 (QB)

Court: High Court

Judge: Jay J

Date of judgment: 13 Nov 2020

Summary: Defamation – Libel – CPR Part 11 – Jurisdiction – Serious Harm – s.1, Defamation Act 2013 – Reference – Publication

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Appearances: Aidan Eardley (Defendant)  Greg Callus (Defendant) 

Instructing Solicitors: Archerfield Partners LLP (First Defendant); Reynolds Porter Chamberlain LLP (Second Defendant)

Facts

The first claimant was Napag Trading Limited, an English-domiciled company trading in petroleum-based products. The second claimant was Napag’s CEO and sole director, Sgr Franceso Mazzagatti, an Italian national with his main residence in Dubai, and the beneficial owner of 95% of the company’s shares. The third claimant was an Italian-domiciled subsidiary of Napag, Napag Italia Srl: it had also traded in petroleum-based products.

The first defendant was Gedi Gruppo Editoriale S.p.A. It published L’Espresso, a weekly Italian-language political and cultural magazine available in print and online in England and Wales. The second defendant was Società Editoriale Il Fatto S.p.A. It published Il Fatto Quotidiano (“Il Fatto”), a daily Italian-language newspaper available online in this jurisdiction.

The claimants brought proceedings in libel against the first defendant over two articles published in L’Espresso on 11 and 25 October 2019, and against the second defendant over four articles published in Il Fatto on 1 and 9 November 2019 and 23 and 24 January 2020. The six articles concerned an investigation brought by the Milan public prosecutor into corrupt payments made or intended to be made to a man convicted of bribing judges in Italy, and the trading of oil in breach of international sanctions (or, at the very least, the US embargo) on Iran. The claimants alleged that the articles imputed that they were involved.

The defendants applied, under CPR Part 11, for a declaration that the Court had no jurisdiction to try any of the claims against them, and for an order setting aside the Claim Form.

Jay J heard the defendants’ applications on 21 and 22 October 2020.

Issue

1.  Whether each of the claimants could show, to the necessary standard, all of the elements of a claim for libel under the law of England and Wales;

2.  Whether the first claimant’s centre of interests was in England and Wales.

Held

1.  Jay J granted the applications sought by the defendants.

Each of the claimants needed to establish a “good arguable case” in respect of all of the elements of a libel claim in this jurisdiction. The first defendant had accepted that the L’Espresso articles were published in England and Wales, and the judge found that the claimants had a good arguable case that the Il Fatto articles were published here too – albeit to a very limited extent.

But although the claimants also had a good arguable case that the L’Espresso articles referred to and made serious allegations against them, only the third claimant could satisfy that standard in respect of all four of the Il Fatto articles. Jay J was not satisfied that any of the articles referred to the first claimant, and held that the second claimant only had a good arguable case on reference and defamatory meaning in respect of the 9 November 2019 article.

In any event, none of the claimants could demonstrate a good arguable case on serious harm for the purposes of s.1 Defamation Act 2013.

Jay J’s finding that the first claimant had only been referred to in the L’Espresso articles – publication of which in England and Wales had been quite limited – coupled with his conclusion that it had not, for the purposes of s.1(2) Defamation Act 2013, demonstrated to the requisite standard “serious financial loss” due to publication in this jurisdiction, meant that the first claimant failed at this hurdle.

Regarding the second claimant, the limited publication in England and Wales of the L’Espresso articles, and of the single Il Fatto article in which he featured, likewise meant that he had failed to establish a good arguable case on serious harm against the defendants.

The third claimant had ceased trading in May 2019, and the evidence supporting its claim to have been attempting to re-establish itself in London between then and October 2019 was “extremely thin”. Therefore, the judge did not accept that the third claimant had a trading reputation in England and Wales at the time that the articles were published. Jay J held that even if this had been otherwise, the third claimant was far from establishing to the requisite standard that it had suffered serious reputational harm in this jurisdiction for the purposes of s.1(1), Defamation Act 2013, let alone “serious financial loss” for the purposes of s.1(2).

2.  Because the first claimant had failed on the serious harm issue, the question of where its centre of interests was did not strictly speaking arise.

However, Jay J considered it nonetheless, and concluded that the first claimant’s centre of interests was, on balance, in England and Wales. Again, the standard that the first claimant had to meet was a “good arguable case”. Because the judge was satisfied that the first claimant’s being registered in this jurisdiction was “for a sound commercial reason which had nothing to do with this litigation”, that its evidence as to the conducting of its business in London could not “regarded as untrue”, and that it was a different legal person to the third claimant (whose centre of interests had never been in England and Wales), the first claimant met that standard.

Comment

An interesting judgment, involving consideration and application of a provision – s.1(2) Defamation Act 2013 – on which there is, as Jay J noted, a “paucity of authority”. The judge held that the provision requires proof of serious financial loss which is consequent on serious reputational harm.

On the wider question of s.1 serious harm, the claimants conceded that they had to show serious harm (and, in the case of the first and third claimants, serious financial loss) in England and Wales as a consequence of publication in this jurisdiction rather than anywhere else: ultimately, Jay J was prepared to accept inferences that reputational harm might have been caused by publication outside this jurisdiction, but not by publication in it, militating against the claimants’ “good arguable case” on serious harm.

Regarding the question of a natural or legal person’s “centre of interests”, the judge considered the CJEU decision of Bolagsupplysningen OU v Svensk Handel AB [2018] QB 963, including paragraph 43 of that judgment. Jay J rejected the defendants’ submission that the paragraph elevates the standard of proof which a claimant must meet when seeking to persuade a court that their centre of interests is in a particular jurisdiction. Rather, the judge’s interpretation of paragraph 43 was that in circumstances where a national court cannot identify a claimant’s centre of interest due to unclear evidence, that claimant cannot avail of the special jurisdiction conferred by Article 7(2) of the Recast Brussels Regulation.