Reference:  EWHC 873 (QB)
Court: High Court, Queen’s Bench Division
Judge: Johnson J
Date of judgment: 13 Apr 2021
Summary: Libel – section 9 Defamation Act 2013 – jurisdiction – service out – forum conveniens – service gateways – centre of interests
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Greg Callus (Claimant)
Ben Hamer (Claimant)
Alexandra Marzec (Defendant)
Instructing Solicitors: Rechtschaffen Law for the Claimant; Eversheds Sutherland for the Sixth Defendant.
C applied for permission to serve a claim form on six defendants out of the jurisdiction. All defendants were domiciled in various states or commonwealths of the USA. Nicklin J ordered of his own motion that the application should be served-out, so that the application for permission to serve-out the claim form could be contested.
D1-D5 filed evidence and appeared at the 2-day hearing. D6 did not attend and was not represented. Permission to serve out against D1-D5 in (i) libel and (ii) misuse of private information was granted by Jay J but not in the remaining causes of action ((iii) under the GDPR; (iv) malicious falsehood (against D1 and D2 only); and (v) harassment) and that the application against D6 be adjourned:  EWHC 56 (QB).
C renewed the adjourned application against D6 in respect of the claims in (i) libel and (ii) misuse of private information only. The claim against D6 was in relation to two articles published by D6 on his website. D6’s evidence in response to C’s application was served late and included evidence on foreign law by a lawyer from the state of Washington in the United States.
- Should D6 be granted relief from sanctions for the late service of his evidence?
- Should permission be given for D6 to adduce expert evidence?
- Should permission be given for C to serve out the claim in defamation?
- Should permission be given for C to serve out the claim in misuse of private information?
- Yes. Applying the tripartite test from Denton v TH White Limited  EWCA Civ 906: (i) the breach was serious and significant; (ii) there was no good reason for the 4-month delay in service of evidence; (iii) however, considering all the circumstances it would be undesirable to determine the application without D6’s evidence which was, in part, highly relevant and so relief should be granted.
- Yes. The expert evidence was exhibited to the factual statement of D6’s solicitor and still required the court’s permission to be adduced but it would be disproportionate and contrary to the overriding objective to require the evidence to be re-served to comply with the requirements of CPR PD 35 para 3.2 in the circumstances.
- Yes. The libel claim had a real prospect of success and established a serious issue to be tried. It also surpassed the threshold under s.9 Defamation Act 2013 that “England & Wales is clearly the most appropriate place to bring the claim”. Considering the claim in isolation, C had not demonstrated that England is a more appropriate place to bring the action than Washington. However, the claim against D6 did not stand in isolation: the claim against D1-D5 was proceeding and was likely to have common and linked issues, including C’s pre-publication reputation, the harm caused by each publication and the defences of truth and public interest. This consideration outweighed the factors that weigh in favour of Washington as a more appropriate place to bring the claim.
- No. The misuse of private information claim did not have a real prospect of success in light of previous mass publication of the photographs by the other defendants and as a result there was not a serious issue to be tried.
The second application to successfully surpass the s.9 Defamation Act 2013 test (the first being the application against D1-D5:  EWHC 56 (QB)). Johnson J found the decisive factor was the ongoing proceedings in the claim against D1-D5 following Spiladia Maritime Corp v Cansulex Ltd (The Spiladia)  AC 460. Arnold LJ gave D1-D5 permission to appeal in relation to the application heard before Jay J, and C permission to cross-appeal in relation to the GDPR and malicious falsehood claims; and Johnson J has also given permission to appeal to D6 so that the appeals can be heard together.