C is a British businessman, naturalised in 2009 with joint Israeli citizenship, who has resided in the UK since 2003. He is domiciled in the UK for tax purposes, and his family and business interests are largely based in this jurisdiction. It is his ‘centre of interests’.
D1 is a company founded by D2 that owns a website. Ds3-5 also write for D1’s website.
Ds1-3 are domiciled in the State of California; D4 is domiciled in the State of New York; D5 is domiciled in the Commonwealth of Pennsylvania.
In respect of 8 publications on D1’s website (and associated social media publications), C sued Ds1-5 for libel, misuse of private information (“MPI”), breach of data protection, and harassment. He also sued Ds1-2 for malicious falsehood.
C’s ex parte application to serve-out was converted to on-notice by Nicklin J, and then heard by Jay J. Jay J gave permission in respect of the libel claims (the first such grant of permission under s.9 Defamation Act 2013), and the MPI claim in respect of photographs only, but refused permission as to all other claims.
Ds1-5 appealed the grant of permission to serve-out, saying that Jay J had erred (1) in holding that while the legal burden of satisfying s.9 fell on claimants, there was an evidential burden on defendants to identify an alternative candidate jurisdiction and demonstrate it was available; and (2) having criticised C’s evidence as “far from forthcoming about his business interests” there was no safe basis for the conclusion that C satisfied s.9.
C filed a Respondent’s Notice that (1) the judge had erred in holding that the standard of proof was ‘balance of probabilities’ rather than ‘a good arguable case’ (holding along the way that s.9 was not merely a modification of forum conveniens at common law and as such a facet of personal jurisdiction, but instead, like s.10 of the 2013 Act, a brand new subject-matter jurisdictional provision); and (2) the judge had erred in holding that expert evidence on foreign law was not necessary in establishing the availability and appropriateness of an alternative candidate jurisdiction.
C also filed a cross-appeal against the refusal of permission to serve-out his claims in:
- malicious falsehood (relying in the appeal only on the Loutchansky species of malice, and an appeal against Jay J’s approach to s.3 Defamation Act 1952); and
- data protection (the Gateway limb having been satisfied by Article 79(2) GDPR, and the Forum limb also satisfied, the only dispute was whether C had an arguable case – capable of resisting summary judgment – as to extra-territorial applicability of GDPR under Article 3 GDPR).