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.