In Ontumulus v Collett ( EWHC 980 (QB)) a Turkish Yacht company and a German Yacht company, together with Mr Ontulmus, who was a shareholder in the Turkish company and a consultant to both companies, sued the defendants in England in respect of five emails which were alleged to have been read in Germany and Switzerland.
The issue was whether it is necessary for the corporate claimants to plead a trading reputation in the relevant jurisdictions which existed before the publications complained of. Tugendhat J answered this question in the negative – the only requirement is for a corporate claimant to plead that ‘it has a reputation that is capable of being injured’ in the relevant jurisdiction.
Foreign claimants, both corporate and individual, can bring an action in this jurisdiction for defamation based upon publications that did not take place here under Article 2 of the Judgments Regulation (Council Regulation (EC) 44/2001) and the double actionability rule applies, i.e. the claimant must plead and prove that the publication complained of was actionable in the law of the country where the alleged tort was committed as well as by English law (see s.13 the Private International Law (Miscellaneous Provisions) Act 1995 ). This was not in issue in this case as, by the time the Defendants’ strike out application came to be heard, the Claimants had agreed to plead the German and Swiss law relied upon and did not simply rely on the presumption that English law is the same as foreign law.
The Defendants’ application therefore relied upon the Claimants’ Particulars of Claim being defective for not pleading that the two companies had a trading reputation in Germany and Switzerland before the publications complained of. They cited Jameel v Wall Street Journal Europe Sprl  UKHL 44 in support of their argument. In that case Lord Bingham had referred to ‘a corporation with a commercial reputation within the jurisdiction’ when holding that it was not necessary for it to prove financial loss to be able to sue in defamation (at paras 24 – 27) and Lord Hope had stated:
“…it is the fact that the statement was calculated to injure the claimant in his character or reputation that makes the action maintainable. Proof that he has a reputation that is capable of being injured in this way is an essential element. In the case of an individual it can be presumed that he has a reputation of that kind. In all other cases this is something that must be proved.” 
However, Tugendhat J held that it would be reading too much into the Jameel case to find that this required corporate claimants to establish a pre-existing reputation in each relevant jurisdiction before the publications complained of – what matters is whether they have a reputation that is capable of being injured (see ). Although in this case he did find that the Claimants had established a pre-existing reputation in the minds of the two publishees.
In his judgment Tugendhat J expressly left open the interesting question of whether it is possible for the words complained of themselves to create the necessary reputation. The number of different possible scenarios in which this issue could arise suggests that the answer is likely to depend upon the facts of the particular case. There is the obvious need to look at the words complained of and whether they were capable of establishing a reputation within that jurisdiction, but from this judgment it is clear that the publishees will also have to be considered as the court held that:
“A relevant reputation is one that exists in the mind(s) of one of the persons to whom the words complained of are alleged to have been published” .
Other issues such as the extent and type of publication (an email with limited publication is very different to a newspaper or journal with a very large circulation) and details about the corporate company (was a new company it seeking to establish a reputation in that jurisdiction?) may well also be relevant and important.
Finally, it is worth practitioners noting that the judgment also provides some guidance of what matters are proper to include in the Particulars of Claim. CPR r16.4(1)(a) states that these must include a concise statement of the facts upon which the claimant relies. In this case the Claimants had also pleaded ‘background’ details, however these were not relevant to meaning, damages or any other matter which the claimant had to establish as part of the cause of action. As such they were struck out because they were superfluous and ought not to have been included. The Court went as far as to state that pleading them was ‘contrary to the overriding objective’. If such matters become relevant to any defence which is raised, then practitioners should plead them in a reply.
Sara Mansoori is a member of the media information team at Matrix Chambers.