Reference:  EWHC 545 (QB)
Court: High Court (Queen's Bench Division)
Judge: Warby J
Date of judgment: 5 Mar 2015
Summary: Defamation - libel - foreign claimant - foreign defendant - service out of the jurisdiction - whether material non disclosure - whether real and substantial tort within jurisdiction of England and Wales - whether England is the proper forum - likelihood of serious harm - service of English proceedings in Russian Federation - whether valid service effected under Hague Convention - CPR 6.40(3)
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Adrienne Page QC - Leading Counsel (Claimant)
Instructing Solicitors: Hamlins LLP
The Claimant is a Russian businessman and former senator in the Russian Federation Senate now residing in Israel where he is President of the Israeli Jewish Congress. The Defendant is a Russian journalist. In a blog and articles published in November 2011 and a radio interview in March 2012, the Defendant alleged that the Claimant had put out a contract to murder her husband, Alexei Kozlov, while Mr Kozlov was being transferred to prison, and had corrupted the head of the Court, the public prosecutor and the Judge in the criminal prosecution of Mr Kozlov.
The Claimant was granted permission to serve English proceedings for defamation on the Defendant at her address in Moscow. The Request by the Senior Master for service abroad under the Hague Convention was accepted and processed by a Judge of the District Court in Moscow who reported that it had not been possible to execute the Request owing to the failure of the Defendant to attend the court hearing of which she had been given notice. Following this, the Claimant had the Claim Form sent to the Defendant at her home by registered post.
The Defendant, having acknowledged service, applied for declarations that valid service had not taken place, that England and Wales was not the proper place for the claim, alternatively for permission to serve out of the jurisdiction to be set aside for material non-disclosure.
The Claimant cross-applied for a declaration that valid service had taken place in accordance with Russian law; alternatively, under CPR 6.15(2) for an order for alternative service.
(1) Whether the permission to serve out of the jurisdiction should be set aside on the ground of (a) material non-disclosure; and/or (b) that England and Wales is not the proper forum.
(2) Whether valid service of the Claim Form had taken place under the Hague Convention in accordance with the law of the Russian Federation pursuant to CPR 6.40(3); if not
(3) Whether the Court should make an order for alternative service under CPR 6.15(1) or (2)
(1) (a) The failure of the Claimant to disclose, on his application for permission to serve out of the jurisdiction, that he had made an unsuccessful complaint of criminal defamation in Russia was a material but innocent non-disclosure which did not justify the discharge of the order granting permission.
(1)(b) The claim involves a real and substantial tort in this jurisdiction and the likelihood of serious harm and England is clearly the appropriate place in which to try the claim.
(2) Valid and effective service of the proceedings has taken place under Russian law and the CPR.
(3) In the light of its conclusion as to valid service, the court did not have to decide whether to authorise alternative service under CPR 6.15. However, it would be undesirable to enable the Defendant to avoid service of proceedings relating to a real and substantial tort in this jurisdiction.
This is another instance of a finding on its particular facts of a real and substantial tort in this jurisdiction in respect of a foreign claimant seeking to sue a foreign defendant. A powerful factor was the Defendant’s evidence challenging the legitimacy of the Russian court. The commencement of the action pre-dates the coming into force of s. 9 of the Defamation Act 2013.
Although the claim is not subject to the serious harm test in s. 1 of the Defamation Act 2013, it is to be noted that the Judge concluded from the combination of: the Claimant having a sufficient reputation here and the gravity of the allegations, that it was likely that substantial publication within the jurisdiction “would lead to serious harm“.
The judgment contains a useful clarification as to what constitutes good service of proceedings under Russian law where the Russian court charged with giving effect to the service Request under the Hague Convention certifies its inability to execute the Request.