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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Ahuja v Politika Novine I Magazini D.O.O & Ors  EWHC 3380 (QB) (23 November 2015)
Cite as:  1 WLR 1414,  WLR 1414,  EWHC 3380 (QB),  WLR(D) 494,  EMLR 8
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| NANDI AHUJA
|- and -
|(1) POLITIKA NOVINE I MAGAZINI D.O.O
(2) LJILJANA SMAJLOVIC
(3) ANICA TELESKOVIC
Hugh Tomlinson QC and Sara Mansoori (instructed by Withers LLP) for the Claimant
Hearing dates: 5, 6 and 23 November 2015
Crown Copyright ©
Sir Michael Tugendhat:
WORDS COMPLAINED OF
THE NUMBER OF READERS OF THE WORDS COMPLAINED OF
LAW ON SERVICE OUT OF THE JURISDICTION
'71. On an application for permission to serve a foreign defendant … out of the jurisdiction, the claimant … has to satisfy three requirements: …. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i.e. a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: …. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context "good arguable case" connotes that one side has a much better argument than the other: ... Third, the claimant must satisfy the court that in all the circumstances [England] is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction…
88. The principles governing the exercise of discretion… are familiar, and it is only necessary to re-state these points: first, in both stay cases and in service out of the jurisdiction cases, the task of the court is to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice; second, in service out of the jurisdiction cases the burden is on the claimant to persuade the court that England … is clearly the appropriate forum; third, where the claim is time-barred in the foreign jurisdiction and the claimant's claim would undoubtedly be defeated if it were brought there, practical justice should be done, so that if the claimant acted reasonably in commencing proceedings in England, and did not act unreasonably in not commencing proceedings in the foreign country, it may not be just to deprive the claimant of the benefit of the English proceedings….'
'95. The better view is that, depending on the circumstances as a whole, the [claimant's] burden can be satisfied by showing that there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption. ….
97. Comity requires that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and that is why cogent evidence is required. But, contrary to the Appellants' submission, even in what they describe as endemic corruption cases (i.e. where the court system itself is criticised) there is no principle that the court may not rule….
101. The true position is that there is no rule that the English court … will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence….'
'In a defamation case the judge is not required to disregard evidence that publication has taken place elsewhere as well as in England. On the contrary, this feature of the case, if present, will always be a relevant factor. The weight to be given to it will vary from case to case, having regard to the plaintiff's connection with this country in which he wishes to raise his action. The rule which applies to these cases is that the plaintiff must limit his claim to the effects of the publication in England: Diamond v. Sutton (1866) L.R. 1 Ex. 130; Schapira v. Ahronson  E.M.L.R. 735; see also Eyre v. Nationwide News Pty. Ltd.  N.Z.L.R. 851. Common sense suggests that the more tenuous the connection with this country the harder it will be for the claim to survive the application of this rule'.
DEFAMATION ACT 2013 S.9
'Action against a person not domiciled in the UK or a Member State etc
(1) This section applies to an action for defamation against a person who is not domiciled — (a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention.
(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.
(4) For the purposes of this section — (a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation; (b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention.
(5) In this section — "the Brussels Regulation" means Council Regulation (EC) No 44/2001 ...'
'Relatively few foreign libel cases ultimately end up in a British court room, but I am concerned by the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting… using the nature of British law to threaten a publication in an entirely different jurisdiction. That is the evil we are trying to address. We are not trying to stop British publications being sued by anybody who can come here and show that we are the right jurisdiction' (Hansard, HC Deb, 12 June 2012, cols 182 and 183).
'[Counsel for the claimant] submitted that the defendant is in substance maintaining her refusal to recognise the legitimacy of the Russian judicial system, which is an insuperable obstacle to the defendant's present application. I would not go quite so far. However, this statement does not appear to me to be in any way a satisfactory response to the claimant's concerns. It clearly leaves it open to the defendant to denounce any unfavourable outcome as not, or not sufficiently, legitimate. This is a factor which arose in Berezovsky (see p1024D, Lord Hoffmann), and it is clear that the majority took into account as an important factor evidence which satisfied them that a favourable result in Russia "will not be seen to redress the damage to the reputations of the plaintiffs in England. Russia cannot therefore realistically be treated as an appropriate forum where the ends of justice can be achieved" (1014H, Lord Steyn). The defendant's stance seems to me to be a very powerful factor in favour of treating England as the appropriate jurisdiction in which to litigate a claim by this claimant for alleged libel published here by this defendant.'
'[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document'.
'... the jurisdiction exercised by an English court over a foreign corporation which has no place of business in this country, as a result of granting leave under R.S.C., Ord. 11, r.l(l)(f) for service out of the jurisdiction of a writ on that corporation, is an exorbitant jurisdiction, i.e., it is one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity thus dictates that the judicial discretion to grant leave under this paragraph of R.S.C., Ord. 11, r.l(l) should be exercised with circumspection in cases where there exists an alternative forum, viz. the courts of the foreign country where the proposed defendant does carry on business, and whose jurisdiction would be recognised under the English conflict rules.'
LAW ON NON-DISCLOSURE
'i) An applicant for permission to serve proceedings outside the jurisdiction is under the duty of full and frank disclosure which applies on all applications without notice.
ii) The duty requires the applicant to make a full and fair disclosure of those facts which it is material for the court to know: Brinks Mat v Elcombe  1 WLR 1350, 1356 (1) and (2) (Ralph Gibson LJ). Put another way, disclosure should be made of "any matter, which, if the other party were represented, that party would wish the court to be aware of": ABCI v Banque Franco-Tunisienne  1 Lloyd's Rep 485, 489 (Waller J).
iii) Non-disclosure of material facts on an application made without notice may lead to the setting aside of the order obtained, without examination of the merits. It is important to uphold the requirement of full and frank disclosure.
iv) But the court has a discretion to set aside or to continue the order. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues that were to be decided. The answer to the question whether the non-disclosure was innocent is an important, though not decisive, consideration. See Brinks Mat at pp1357 (6) and (7) and 1358 (Balcombe LJ).
v) In the context of permission for service outside the jurisdiction the court has a discretion to set aside the order for service and require a fresh application, or to treat the claim form as validly served and deal with the non-disclosure by a costs order: NML Capital Ltd v Republic of Argentina  UKSC 31,  2 AC 495,  (Lord Collins).
'35. …. the duty requires a party to '… disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the injunction. It is no excuse to say that he was not aware of the importance of matters he has omitted to state'….. 37. Even more axiomatically, there is a separate duty arising at all times not to mislead the Court and, should the Court have been inadvertently misled, to correct that as soon as possible. These duties are prominent in the Solicitor's Code of Conduct'. (emphasis original)
THE HEARING ON 31 MARCH 2015
ISSUES IN THE DEFAMATION CLAIM
ISSUES IN THE MISUSE OF INFORMATION CLAIM
JUSTICE IN SERBIA
'Regarding the independence of the judiciary…. The constitutional and legislative framework still leaves room for undue political influence affecting the independence of the judiciary, particularly in relation to the career of magistrates… Some judges from higher and appellate courts were confronted with direct attempts to exert political influence over their daily activities without the High Judicial Council properly defending their independence…. The impartiality of judges is ensured through the constitutional and legal framework. However practical implementation is hampered by the fact that the system of random allocation of cases is not yet automated in all courts, which provides scope for circumventing the system … Fundamental rights – Serbia has ratified all the main international human rights instruments and is on track with reporting to the UN human rights mechanisms. Nevertheless, implementation needs to be more consistent. During the reporting period, the European Court of Human Rights delivered 29 judgments on 73 applications against Serbia. In 27 judgments the Court found that Serbia had violated the European Convention on Human Rights and Fundamental Freedoms. The majority of the judgments refer either to violation of the right to a fair trial due to the length of the procedure or to the non-enforcement of domestic judgments…'