Sadik v Sadik

C sued in libel over the publication by D, his sister-in-law, of allegations of criminality and dishonesty to 34 members of his extended family via WhatsApp. The publications followed bitterly contested family property litigation, in which D and her husband and son had ultimately discontinued their claims after trial but before judgment.

C had obtained judgment in default and summary disposal, Nicklin J awarding the maximum £10,000 in damages. D then applied to set the default judgment aside, serving evidence from her son that he had destroyed the claim form and other documents served on her. C consented to the default judgment being set aside.

D served a defence alleging qualified privilege and abuse of process (but not truth). C served a reply denying those defences and alleging malice.

D applied to strike out the claim or obtain summary judgment on the grounds that:

1. pursuant to s.9, Defamation Act 2013, the court had no jurisdiction as she was domiciled outside of the Brussels and Lugano Convention territories;
2. that C had no real prospect of satisifying the s.1, Defamation Act 2013, requirement to show serious harm to reputation; and
3. that the claim was an abuse of process in the Jameel v Dow  Jones sense.

1. As to s.9, Defamation Act 2013:

a) Whether it was too late to bring such a jurisdiction challenge, after a default judgment had been set aside and pleadings completed;

b) If not, whether D had shown that C had no real prospect of establishing that D was domiciled in the UK at the relevant time.

2. Whether C had a real prospect of satisfying s.1, Defamation Act 2013, as to serious harm to reputation;

3. Whether the claim should be struck out as a Jameel abuse of process.

Dismissing the application:

1. a) It was not too late to bring a jurisdiction challenge under s.9. S.9(2) was in mandatory form. Jurisdiction under s.9 cannot be conferred by waiver, submission or consent. It is concerned with the subject matter of the suit and not with personal jurisdiction over the defendant. CPR r.11 is concerned with matters of jurisdiction that are capable of being waived. The CPR cannot operate so as to confer jurisdiction on a court if, by statute, it cannot possess it.

b) D had not shown that C had no real prospect of establishing that D was domiciled in the UK at the relevant time. It was at least arguable that at the date the claim was issued, which appeared to be the relevant time, the Defendant was still domiciled in the UK. After 25 years or so of residence in London, which in her evidence she repeatedly called her ‘home’ and for which she had paid the bills for many years, it was at least arguable that D continued to be resident in, and have substantial connections with, the UK until at least the date she left for Kuwait, which was after these proceedings were issued.

2. D had not shown that C had no real prospect of establishing that he had suffered serious harm to his reputation. Applying the Supreme Court’s decision in Lachaux, the allegations were very serious, exacerbated by a religious component, and had been published to publishees who were important to C by D, whose position in the family could lead to publishees thinking there was something in the allegations. There was also evidence of the grapevine effect, with the allegations circulating beyond their initial audience on WhatsApp. Although there was a lack of positive evidence of harm to reputation, Lord Sumption in Lachaux had made clear that a court considering serious harm could draw inferences and look to the “inherent probabilities”. Here the inherent probabilities were that that there will have been some publishees of D’s words who would have concluded that D would not have made such widespread and serious accusations against her brother-in-law unless there was some substance to them.

3. This was not a claim to be struck out as a Jameel abuse of process, largely for the same reasons as above. C had a real prospect of showing he had suffered serious harm to his reputation, and of establishing jurisdiction. There was evidence of grapevine publication within the jurisdiction. The parties’ costs budgets were far in excess of the likely damages, but that was not unusual in libel claims, nor a reason to strike out. C would receive at a minimum a measure of vindication by a public judgment in his favour, and given the grapevine publication that had already occurred, this would benefit C in refuting the libel should it resurface in future.

Allegations of a very serious nature are always likely to be at least capable of causing serious harm to reputation, particularly if targeted at persons of significance to a claimant, while Jameel abuse has never been a “numbers game”, especially where false allegations are continuing to circulate and a defendant refuses to apologise or retract.

The Judge’s comments on the interaction between s.9, Defamation Act 2013, and CPR r.11 suggest that defendants may unusually be able to keep this form of jurisdiction challenge up their sleeves for as long as they choose, perhaps even to trial, by which time huge sums may have been wasted in the English courts and alternative jurisdictions may have run into limitation problems.