Ominously, in his recent judgment in Napag Trading Ltd & Ors v GEDI Gruppo Editoriale S.p.A & Anor  EWHC 3034 (QB) Jay J noted:
“Only the Second Defendant saw fit to raise a forum non conveniens challenge in advance of 1 January 2021 and the relevant EU regulation no longer applying… I refuse this application without prejudice to the Second Defendant’s ability to restore it at an appropriate time should the need arise.”
Although transitional provisions maintain the status quo regarding cases commenced in the UK before 1 January 2021, it seems that there are some who can’t wait to challenge in the English courts principles derived from the Brussels Regulation and European Court of Justice rulings (CJEU).
The 1968 Brussels Convention (now in the form of the Recast Brussels Regulation) sought to lay down a framework of rules for the recognition and enforcement of judgments in civil and commercial cases, with an emphasis on predictability and legal certainty. The UK acceded to the Convention in 1978 and it became part of UK law by virtue of the Civil Jurisdiction and Judgments Act 1982, with rulings on its interpretation by the CJEU binding on the UK courts.
The plan is (or was) that on Brexit, the UK would sign up to the Lugano Convention, which governs the relationship of its existing member states, Switzerland, Iceland and Norway, with the EU. The UK’s application to join was lodged in April 2020, but has yet to be accepted by the EU. If and when it is approved, there will be a 3-month delay before it comes into effect, to allow time for objections from other contracting states. The essential difference from the Brussels Regulation is that under the Lugano Convention decisions of the CJEU are not binding. The courts of the non-EU Member States are instead required to “pay due account” to the case law of the CJEU on the Brussels Regulation.
Since its inception the Brussels Regime has provided, as the primary, general rule, that legal proceedings should be brought in the country of the defendant’s domicile. The secondary, special rule, which applies in cases of tort such as defamation and breach of privacy, is that alternatively proceedings may be brought in the country whether the harmful event occurred.
In Shevill (1995) the CJEU ruled that
“the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either before the courts of the Contracting State of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each Contracting State in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the State of the court seised.”
On this basis the claimant, a UK national, was permitted to proceed with an action for libel in England against the publishers of France Soir in respect of the distribution in England of 230 copies of the newspaper out of a total circulation of over 250,000, with her claim limited to the publication within the jurisdiction of England and Wales. Although this ruling may appear to be an instance of the tail wagging the dog, were a similar set of facts to arise today, certainly as a result of the serious harm test introduced by s.1 Defamation Act 2013, if not earlier under common law, the English claimant would not succeed unless she were able to show that the offending words had been read within the jurisdiction of the English court and that this had caused, or was likely to cause, serious harm to her reputation.
Owusu (2005) concerned proceedings for breach of contract and negligence brought in England by an English-domiciled claimant in respect of a very serious injury he had suffered in a diving accident which occurred at a holiday resort in Jamaica. The first defendant, who had rented a villa to the claimant, was domiciled in the UK; the other five defendants were all Jamaican companies. Although there can be little doubt that left to its own devices the English court would have considered Jamaica to be the more appropriate forum to hear the case – it was the place where the harm was suffered, where the main witnesses lived and where the court was best placed to decide on the facts – the CJEU ruled that because one defendant was domiciled in England, the English court had no discretion but to hear the case.
This principle is incorporated into the current Brussels Regulation at Article 8 which provides that
“A person domiciled in a Member State may also be sued (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings…”
The importance of Owusu to publication cases may be seen in circumstances where, for example, a foreign newspaper publishes a defamatory article under the by-line of a London-based correspondent, a situation which occurred in the 1987 libel action brought by a former senior Royal Navy Officer Martin Parkard in respect of allegations published in a Greek newspaper which resulted in an English jury awarding £450,000 damages, a record at the time. Applying the rationale of Shevill, a claimant domiciled anywhere in the world would be entitled as of right to bring defamation proceedings in England claiming damages in respect of all harm suffered as a result of publication anywhere in the world, provided that at least one of the defendants was found to be domiciled in England.
In eDate Advertising (2011) the CJEU recognised that the ubiquity of content placed online and the technical difficulty in quantifying harm caused exclusively within one member state meant that a distinction needed to be drawn in principle from the position regarding regional distribution of printed material. It decided that the criteria identified in Shevill
“must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice…”
Accordingly the CJEU held that in relation to internet publication a claimant has three options. Proceedings may be brought in respect of all the harm suffered as a result of the publication either before the courts of the member state where the defendant is domiciled, or before the courts of the member state in which the claimant has his “centre of interests” which will usually (but not necessarily) be the place where the claimant habitually resides. The third alternative, as with Shevill, is for the claimant to confine his/her/its claim to the harm suffered as a result of publication within a single member state in which proceedings are brought.
The CJEU developed these principles further in Bolagsupplysningen (2017) which concerned a claim brought by an Estonian company before the Estonian courts seeking the removal of and damages for the publication of material published online by a Swedish trade association. The claimant company claimed as a result of the publication to have suffered harm in terms of loss of business in Sweden.
It was held that an application for the rectification of online material could be brought only before the courts of a member state with jurisdiction to rule on the entirety of the harm suffered, that is either the courts of the defendant’s domicile or the courts of the claimant’s centre of interests. With regard to a corporation’s centre of interests, the CJEU indicated that although this may be the country of its registered office, it was more likely to be the country where, if different, its main business activities were conducted.
The CJEU judgments in eDate Advertising and Bolagsupplysningen have been directly applied in two English court rulings. In Wafic Said v Group L’Express (2018) it was held that a claimant could have only one centre of interests, and it was found on the facts that the claimant’s extensive personal connections with England were not sufficient to displace the presumption that his place of habitual residence, Monaco, was the centre of his interests. Therefore, although his claim for damages in respect of harm suffered within the jurisdiction of the English courts was allowed to proceed, his claim for an injunction against the French publisher was dismissed.
More controversially, in Napag Trading v Gedi Gruppo Editoriale (2020) it was agreed between Counsel for the parties and accepted by Jay J. that even if a claimant’s centre of interests were found to be England, it would still be necessary “as a prior condition” for the claimant company to establish that “there has been publication in England and Wales and that the First Claimant has suffered “serious harm” (including “serious financial loss”) here, both being matters of domestic law.” However, the facts of the CJEU case cited in support of this proposition, Marinari v Lloyds Bank (1995), concerned a series of events which took place in Manchester, culminating in the claimant’s arrest by the police in England, very different from the issues which arise from world-wide on-going damage claimed to have been caused by publication of material on the internet. The s.1 Defamation Act 2013 test of serious harm is not expressed to be confined to harm suffered as a result of publication in England and Wales, and it would appear to be inconsistent with Owusu, eDate Advertising and Bolagsupplysningen for the statute to be so interpreted.
Andrew Stephenson is a Consultant and Sarah Daniel an Associate Solicitor at Hamlins LLP.