undefinedOn 6 September 2024 Steyn J handed down judgment in the case of Parish v Wikimedia Foundation [2024] EWHC 2301 (KB) setting aside an order granting the claimant permission to serve the defendant out of the jurisdiction.  The Claimant failed the Forum Test and had failed to make material disclosures on the original application for permission. The Claimant also failed the merits test as a result of the application of section 8 of the Defamation Act 2013.

Background

The Claimant is a lawyer who qualified in England but never practised and worked for a number of years in Geneva.   In September 2021 he was convicted of an offence of forgery in Switzerland.  He was sentenced to 3 years imprisonment, of which 18 months was suspended, reduced on appeal to 2 years imprisonment, suspended.

In 2023 Wikipedia published the following words of which complaint was made by the claimant:

“Parish has also been convicted in Switzerland for his role in a fraudulent arbitration in a dispute between rival members of the Kuwaiti ruling family aimed at falsely authenticating fraudulent videos showing corruption and breach of Iran sanctions.…..In September 2021, Parish was convicted and sentenced to three years’ jail time and was banned from practicing law in Switzerland”.

On 29 January 2024, the Claimant issued a claim for libel against the Defendant, Wikimedia Foundation Inc. For himself, he gave an address in England.  For the Defendant, he gave an address in San Francisco in the United States of America.  He sought and obtained, on the usual without notice basis, permission to serve the claim on WMF in the USA.  In his witness statement in support he stated that he was a British citizen resident in the jurisdiction.  He relied on various connections with England in support of his contention that England was clearly the most appropriate place to pursue the claim.

Permission to serve out was granted on 22 March 2024.  On 2 May 2024 the Defendant filed an application to set this order aside on a number of grounds, including that England was not the most appropriate forum, that the claimant was guilty of material non-disclosure on his without notice application and, in any event, it had a complete limitation defence.

Judgment

After summarising the procedural background, the Judge dealt with the law on permission to serve out, setting out the established legal principles as explained in Soriano v Forensic News LLC [2022] QB 533 at [11] to [12].  In particular, permission to serve out can only be granted if the claimant satisfies that court that

  • he has a real as opposed to a fanciful prospect of success on the claim (‘the Merits Test’).
  • England and Wales is the proper place to bring the claim (‘the Forum Test’), as modified by section 9 of the Defamation Act 2013 (“the 2013 Act”) in defamation cases.

The Judge first considered the Forum Test. The Defendant contended that Switzerland was a more appropriate jurisdiction.

The Claimant claimed to be resident in England however, the Judge found that he had not, in fact, lived in England for over 20 years [41].  The address on the claim form was his parents’ address [52].  The Claimant was a member of the Swiss Bar, had worked in Geneva for over decade and owned property in Geneva [54].

The Judge concluded  that the Claimant had not established that England was clearly the most appropriate forum for the claim for five reasons.  (1) He did not live in England and he was most well known in Switzerland [57];  (2)  the underlying facts had nothing to do with England;  (3)  the material documents were likely to be in French;  (4) the Claimant was well able to pursue proceedings in Switzerland; (5) there was no evidence that travelling to Switzerland would present any practical difficulty.([57] to [61]).  As a result, the order for service out should be set aside [62].

The Judge then considered the issue of material non-disclosure.  The Judge found that there were egregious breaches of the duty of full and frank disclosure.  In particular, he had not disclosed that he had lived and worked abroad for the past two decades or his extensive connections with Switzerland [74].  In addition, the Claimant had failed to put his letter dated 16 February 2022 (relevant to limitation) before the Master on the permission to serve out application.  On the basis of these non-disclosures the order would have been set aside in any event.

Finally, the Judge considered the Merits test.   The Defendant relied on the “single publication rule” provided for by section 8 of the 2013 Act.  This applies where a defendant publishes a statement (“the first publication”) and then, subsequently, publishes that statement or one which is substantially the same.  Section 8(3) provides that, for limitation purposes,

“any cause of action  in respect of the subsequent statement is to be treated as having accrued on the date of the first publication”.

The Defendant argued that the “first publication” was a 10 January 2022 version of the Wikipedia page which was the subject of a complaint by the Claimant in his letter of 16 February 2022.  It was said that, because the claim had been issued on 29 January 2024 it was time barred (more than one year having elapsed since the first publication).

The issue was whether the first and subsequent publications made “substantially the same” statement.   The Judge compared the two versions of the Wikipedia page ([81]) and, noting that they both referred to the Claimant’s conviction, prison sentence and ban on practising law in Switzerland, held that they were “substantially the same”.

By section 8(4) of the 2013 Act the section did not apply in relation to the subsequent publication “if the manner of that publication is materially different from the manner of the first publication.”   However, no issue arose under this provision because it was clear that the manner of the two publications was not materially different [80].

The Claimant had put forward no reason for contending that it would be equitable to disapply the limitation period.  As a result, there was no real prospect of the Claimant defeating a limitation defence and he therefore failed the Merits Test.  The claim was, therefore, dismissed.

Comment

This case is an application of the clear and established principles concerning service out in defamation cases, established in the Soriano case.  Once the true position concerning the Claimant’s residence and connections with Switzerland were established it was plain that he could not show that England and Wales was “clearly the most appropriate place” in which to bring the action.

The judgment is a reminder to practitioners that, when using the “without notice” procedure for seeking permission to serve out, a claimant must take care to make full and frank disclosure of material facts.   The Claimant in this case had given a wholly misleading impression of his connections with the UK and it is unsurprising that permission was set aside on the ground of “non-disclosure”.

Perhaps the most interesting part of the judgment concerns section 8 of the 2013 Act.  Although this provision has been in force for more than 10 years it has received very little judicial consideration and has not formed part of the ratio of any decided case.  The Judgment demonstrates that the section can be a powerful weapon in the hands of a defendant.  The fact that the two versions of the webpage were differently worded did not prevent them from being “substantially the same”.   As the Judge pointed out, the Claimant’s submission that the re-publication of the same material meant that the limitation period re-started was bad in law and ignored the effect of section 8.  No issue arose to the manner of publication and questions as to how this is to be taken into account when applying section 8 remain for consideration in future cases.

Hugh Tomlinson KC is a member of the Matrix Chambers media and information group and an editor of Inforrm.