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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 >> Wright v Ver  EWHC 2094 (QB) (31 July 2019)
Cite as:  EWHC 2094 (QB)
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QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
| Craig Wright
- and -
for the Claimant
Hugh Tomlinson QC (instructed by Brett Wilson LLP) for the Defendant
Hearing date: 29 July 2019
Crown Copyright ©
The Honourable Mr Justice Nicklin :
i) a video posted by the Defendant to a YouTube account held by bitcoin.com on or around 15 April 2019 ("the YouTube Video");
ii) a tweet containing the YouTube Video which was posted on the Defendant's Twitter account ("the Twitter Account") on 3 May 2019 ("the Twitter Posting"); and
iii) a reply to the Twitter Posting which was also posted on Twitter on 3 May 2019 by a third party ("the BKKShadow Posting").
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…
i) pursuant to CPR Part 17.2(b) to amend the Claim Form to add further claims in respect of the Twitter Posting and the BKKShadow Posting;
ii) pursuant to CPR Part 6.38(1), to serve on the Defendant the Particulars of Claim and any further documents in the proceedings "out of the jurisdiction in Japan where the Defendant is domiciled"; and
iii) pursuant to CPR Part 6.15 and 6.27, to serve the Amended Claim Form and Particulars of Claim using an alternative method, namely email.
"65. This section aims to address the issue of 'libel tourism' (a term which is used to apply where cases with a tenuous link to England and Wales are brought in this jurisdiction). Subsection (1) focuses the provision on cases where an action is brought against a person who is not domiciled in the UK, an EU Member State or a state which is a party to the Lugano Convention. This is in order to avoid conflict with European jurisdictional rules (in particular the Brussels Regulation on jurisdictional matters).
66. Subsection (2) provides that a court does not have jurisdiction to hear and determine an action to which the section applies unless it 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. This means that in cases where a statement has been published in this jurisdiction and also abroad the court will be required to consider the overall global picture to consider where it would be most appropriate for a claim to be heard. It is intended that this will overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in this jurisdiction only. This would mean that, for example, if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action in respect of the statement was Australia rather than England. There will however be a range of factors which the court may wish to take into account including, for example, the amount of damage to the claimant's reputation in this jurisdiction compared to elsewhere, the extent to which the publication was targeted at a readership in this jurisdiction compared to elsewhere, and whether there is reason to think that the claimant would not receive a fair hearing elsewhere."
"… [the words 'libel tourism'] do not identify the mischief which the section is to remedy. It is not suggested in the present case that the claimant is in any sense a 'tourist', nor that his links to England and Wales are tenuous, and yet the section applies to him. The section makes no reference to different categories of claimant, or to any specific link to England that a claimant might have or lack. It applies as much to a claimant who has never resided in England as to one who is resident or domiciled here…"
"The Internet has had the effect that many ordinary people are defamed in publications accessible to readers all over the world. And some ordinary (and otherwise very private) people are the subject of defamations which, for one reason or another, are in fact read or viewed (on media such as YouTube) by thousands or even millions of people abroad. And I would not exclude the possibility that there could be cases where, to require a claimant to put before the court evidence relating to all the jurisdictions where the defamatory statement has been published, might interfere with the claimant's right of access to the court. But that is not this case… [I]f I had thought that there was any undue or impossible requirement being imposed on the claimant in this case, I would have taken into consideration, in deciding whether England and Wales is clearly the most appropriate place in which to bring an action, the claimant's right of access to the court."
i) First, its operation depends on where the defendant is domiciled – not on where they are resident or contingently present. In other words, the fact that a defendant to whom the section applies is or was in England and Wales, and could be served personally, is irrelevant.
ii) Second, the burden of s.9(2) is upon the claimant to demonstrate that England and Wales is clearly the most appropriate place to bring the action. There is no burden on the defendant to come up with alternative jurisdictions, nor is the Court obliged to identify the most appropriate jurisdiction if the claimant fails to establish that it is England and Wales.
i) If a claimant fails to show that England and Wales is "clearly the most appropriate place" to bring an action, the Court does not have jurisdiction to hear the claim. There is no discretion.
ii) The requirement is strict:
"… the effect of s.9 will be to oblige the court to consider all the jurisdictions where the defamatory statement has been published, in order to determine whether the domestic jurisdiction is clearly the most appropriate place": a passage from Gatley at §24.29, approved in Ahuja at ,  and .
iii) Even if this an "immense and complex" task, it is highly unlikely to constitute an interference with a claimant's right of access to the Court, particularly where the claimant is of substantial means: Ahuja .
iv) Similarly, a claimant with a global reputation must
"… put before the court the evidence of the harm to their global reputations which enables the court to be 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": Ahuja .
v) This is because such damage must be evaluated on a jurisdiction-by-jurisdiction basis: Ahuja .
vi) In addition, a Court will take into account factors including: (a) the extent to which publication was targeted at a readership in England and Wales compared with elsewhere; (b) whether there was reason to think that the claimant would not receive a fair hearing elsewhere; (c) the convenience of witnesses and the relative expense of suing in different jurisdictions: Ahuja ; (d) the value of any vindication that could be obtained elsewhere: Huda [85(v)].
vii) As a jurisdictional requirement, s.9 must be considered prior to any question of service:
"In a s.9 case, the Court does not get to the stage of considering whether to grant permission to serve out (and the questions of discretion that would apply to that decision) unless s.9(2) is satisfied. England & Wales has to be 'clearly the most appropriate place in which to bring an action' before the English Court can have jurisdiction over the claim": Huda .
i) The task of the Court is to identify the forum in which the case can be suitably tried for the interests of all parties and for the ends of justice: Huda [18(i)].
ii) The Court should consider what is the natural forum for the pursuit of the claims, in the sense of being the jurisdiction with which the claims have their most real and substantial connection: Huda [18(iv)], citing Spiliada Maritime Corpn -v- Cansulex Ltd  AC 460, 478).
iii) The jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute: Huda [18(v)], citing Berezovsky -v- Michaels  1 WLR 1004 at 1013D and 1014E.
iv) Where publication has taken place on the internet, and therefore is accessible by a large audience abroad, it might interfere with the right of access to the Court to require the claimant to put before the Court evidence relating to all the jurisdictions where the defamatory statement has been published. In assessing whether this is the case, the Court may have regard to the means of the claimant: Ahuja .
v) The issue of jurisdiction is not merely a numbers game: "the extent of publication in different jurisdictions may have little bearing on where the claimant's reputation mainly lies and on where that reputation has been most seriously damaged": Ahuja .
vi) Relevant factors are likely to include the extent of damage to a claimant's reputation in England and Wales compared with elsewhere; the extent to which publication was targeted at a readership in England and Wales compared with elsewhere; the convenience of witnesses; and the relative expense of suing in different jurisdictions: Ahuja . In relation to 'targeting', Mr Wolanski QC has referred me to the decision in Sloutsker -v- Romanova  EWHC 545 (QB);  2 Costs LR 321, in which Warby J said :
"In [King -v- Lewis  EMLR 4 ], the Court of Appeal rejected 'out of hand' a submission that the court should take into account whether or not the defendant had 'targeted' this jurisdiction, concluding that this was too subjective and nebulous a criterion, liable to manipulation and 'much more likely to diminish than enhance the interests of justice'".
vii) Claimants resident in the jurisdiction are more likely to be able to surmount the threshold than foreign claimants, although if such a claimant spends his working life abroad, and enjoys reputations in one or more countries abroad as significant as his reputations in England and Wales, he might be in a different position: Ahuja –;
"As the law stands, the same principles apply to internet publication as apply to hard copy publication, except that the court's discretion in an internet context 'will tend to be more open-textured than otherwise': King -v- Lewis... It is clear from the context in which Lord Woolf made that remark that he intended it to be taken as an indication that the court should not be shy of allowing foreigners who publish via the internet to be sued in this jurisdiction, given that such publishers will have chosen to disseminate their information via a global medium. This emerges not least, but not only, from Lord Woolf's citation at  of the conclusion of the High Court of Australia in Gutnick -v- Dow Jones  HCA 56  that:
'If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage.'"
The position at common law
 Where there is a worldwide publication of an allegedly defamatory article, whether in hard copy form or on the Internet, difficult issues of jurisdiction may occur. Where the claim is governed by the Brussels and Lugano Conventions, as scheduled to the Civil Jurisdiction and Judgments Act 1982, and Council Regulation 44/2001/EC of 22 December 2000, a claim for all publications can be brought in the jurisdiction where the defendant is established or individually in each member state where publication has taken place in respect only of the publication within that member state: see Shevill -v- Presse Alliance SA  2 AC 18. If the latter alternative is adopted, English jurisdiction in respect of the publication in England cannot be challenged on the ground that England is not the most convenient forum. Where the Conventions do not apply, a claimant can obtain permission to serve a foreign publisher out of the jurisdiction in respect of a publication in England, pursuant to CPR r 6.20(8). In those circumstances the claim will be limited to the publications within the jurisdiction. Furthermore, the defendant can apply to have service set aside on the ground that there is an alternative jurisdiction 'in which the case may be tried more suitably for the interests of all the parties and the ends of justice': see Spiliada Maritime Corpn -v- Cansulex Ltd  AC 460, 476.
 It is in the context of an application to set aside service outside the jurisdiction on such grounds that the question of whether 'a real and substantial tort has been committed within the jurisdiction' has been relevant. In Kroch -v- Rossell et Cie Société des Personnes ŕ Responsibilité Ltd  1 All ER 725 the plaintiff brought libel proceedings against the publishers of a French newspaper and a Belgian newspaper. He obtained permission to serve each defendant out of the jurisdiction on the ground that a small number of copies of each newspaper had been published in England. The vast bulk of the publications had been in France and Germany. The defendants applied successfully to have the order giving permission to serve out set aside. Slesser LJ remarked, at p.729:
'in no sense can it be said that there is any substantial importation of these papers in England, or that the libel which is said to affect the plaintiff in England is anything but a very minor incident of the substantial publication in France.'
Scott LJ added, at p.732:
'I think it would be ridiculous and fundamentally wrong to have these two cases tried in this country, on a very small and technical publication, when the real grievance of the plaintiff is a grievance against the widespread publication of the two papers in the respective countries where they are published.'
 More recently, in Chadha -v- Dow Jones & Co Inc  EMLR 724, 732 Roch LJ stated:
'In my judgment once it is established that there has been an "English tort" that is to say that there has been a significant publication of prima facie defamatory matter concerning the plaintiff within the jurisdiction, the English courts have jurisdiction with regard to that English tort. Where the perpetrator of the tort is not within the jurisdiction but is abroad, then leave to serve process abroad under Order 11 is required and the fundamental principle identified by the House of Lords in Spiliada… If there is a substantial complaint with respect to the English tort, having regard to the scale of the publication within the jurisdiction and the extent to which the plaintiff has connections with and a reputation to protect in this country as against the inconvenience to the defendant in being brought here to answer for his alleged wrongdoing then service of the writ abroad is to be ordered.'
i) There exists an initial presumption that the natural or appropriate forum for trial of the dispute will be the courts of the place where the tort is committed; a principle not limited to defamation: ; The Albaforth  2 Lloyds Law Reports 91, 96; Berezovsky -v- Michaels  1 WLR 1004, 1014E.
ii) This presumption is only a starting-point. The Court is not required to disregard evidence that publication has taken place in other jurisdictions. On the contrary the existence and extent of that publication will always be a relevant factor. The weight to be given to it will vary from case to case, having regard to the claimant's connection with England and Wales. The more tenuous the connection with this country, and the more substantial any publication abroad, the harder it will be to demonstrate that England and Wales is the most appropriate forum: -; Berezovsky, 1032D-E.
iii) Although the House of Lords, in Berezovsky (at p.1012), had rejected a 'single-publication rule' for internet publication (see discussion in Gutnick -v- Dow Jones (2002) HCA 56 [29(ff)].) - the proposition that the Court should treat the entire international publication across multiple jurisdictions as if it gave rise to one cause of action and to assess whether it has been clearly proved that this action would best be tried in England and Wales - the Court still needed to have regard to the 'global picture': . Where there is publication in just two jurisdictions, the Albaforth starting-point may remain very meaningful. But in relation to internet libel, bearing in mind that each publication constitutes a separate tort, a defendant who publishes on the internet may find himself at risk of multiple actions in different jurisdictions. In such cases, the place where the tort is committed ceases to be a potent limiting factor, cf. Gutnick -v- Dow Jones (2002) HCA 56 , -. The Court must still ascertain the most appropriate forum and the parties' connections with the relevant jurisdiction(s) will still have to be considered. In an internet case the Court's discretion will tend to be more open-textured than otherwise; but every case will depend upon its own circumstances.
s.9 Defamation Act 2013
"…the Court must assess the amount of damage to the claimant's reputation in England & Wales compared with elsewhere and the extent to which the publication was targeted at readership in England & Wales compared with elsewhere": Ahuja ;
And claimants must "… put before the court the evidence of the harm to their global reputations which enables the court to be 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": Ahuja .
"… it makes little sense to distinguish between one jurisdiction and another in order to decide which the defendant has 'targeted', when in truth he has 'targeted' every jurisdiction where his text may be downloaded. Further, if the exercise required the ascertainment of what it was the defendant subjectively intended to 'target', it would in our judgment be liable to manipulation and uncertainty, and much more likely to diminish than enhance the interests of justice."
See also Sloutsker (quoted in [17(vi)] above).
i) Stage 1: assess the nature of the publication and its extent in each jurisdiction.
A preponderance of publication in England and Wales is likely to be a weighty factor in demonstrating that England and Wales was clearly the most appropriate jurisdiction. If there has been more widespread publication elsewhere, then subject to any argument on 'targeting' and depending on the extent of the relative publication in the other jurisdictions, the claimant may struggle, simply on the basis of numbers, to satisfy the requirements of s.9(2).
ii) Stage 2: assess the evidence of harm to reputation in the jurisdictions in which there has been publication.
If a claimant can provide evidence of very serious harm to reputation in England and Wales, then s/he may well succeed in demonstrating that this jurisdiction is clearly the most appropriate, notwithstanding any conclusion, at stage 1, that there has been more extensive publication outside England and Wales. A claimant might be able to demonstrate, by clear evidence, serious harm to reputation arising from a relatively tiny publication in England and Wales; perhaps the product of a 'well-directed arrow'. Alternatively, a claimant might be able to put forward a powerful inferential case based on the extent of publication and the geographical limits on his/her reputation. For example, a contestant on reality show broadcast only in the UK might be completely unknown outside the UK. If s/he were to be defamed in a global publication, and assuming that there was more than a de minimis publication in England and Wales, the Court might be satisfied that, notwithstanding a larger publication of the libel elsewhere, this jurisdiction was nevertheless clearly the most appropriate. In that example, the more extensive the publication in England and Wales, the more powerful would be the inference of reputational harm and the more likely that the Court would be satisfied that s.9(2) was met. Although it will engage similar issues, I should make clear that this analysis is entirely separate from the question of serious harm to reputation under s.1 Defamation Act 2013.
Stage 1: nature and extent of publication
i) The Bitcoin YouTube Channel
- In the period, 25 February 2016 to 22 June 2019:
Total views: 1,821,515 of which
United States: 422,698 (23.2%)
United Kingdom: 96,915 (5.3%)
Total subscribers: 2,420,214 of which
United States: 859,935 (35.5%)
United Kingdom: 185,935 (7.7%)
- In April 2019:
Total views: 73,135 of which
United States: 20,870 (28.5%)
United Kingdom: 4,985 (6.8%)
Total views by subscribers: 19,840 of which
United States: 6,136 (30.9%)
United Kingdom: 1,407 (7.1%)
- In the period: 14-18 April 2019:
Total views: 24,913 of which
United States: 7,029 (29.3%)
United Kingdom: 1,649 (6.9%)
ii) The Twitter Account
- As at May 2019
Active Followers: c.582,000 of which
United States: c.168,780 (29%)
United Kingdom: c.52,554 (7%)
These figures would represent the maximum number of publishees on Twitter.
i) the most significant publication, across both platforms, is in the US;
ii) in most instances, publication in the UK is the second most significant; and
iii) roughly, the publication in the US is around four times that in the UK.
Stage 2: harm to reputation
i) The Claimant immigrated to the UK with his family from Australia in December 2015. The family have lived in the UK ever since and have moved all their belongings here, and this is now their settled home.
ii) Since emigrating to this jurisdiction, the Claimant has spent the 'overwhelming majority' of his time here.
iii) The Claimant's evidence is that he intends to stay permanently in the UK, and intends to apply for British Citizenship as soon as he is eligible, i.e. after he has been living here continuously for 5 years.
iv) The Claimant's wife has settled connections here and two of their three children are being educated in the UK.
v) The Claimant pays both local and national taxes in the UK.
vi) The Claimant currently rents a home here for his family, has already sought to buy a property here as his home, and intends to buy a home once he has located a suitable property.
vii) The Claimant works in the UK. He is employed by a UK company, nChain.
viii) The Claimant is undertaking postgraduate studies at the University of Leicester and at SOAS in London.
ix) The Claimant has been the subject of widespread media coverage in this jurisdiction, reflecting the extent to which he is a recognised figure here. Mr Wolanski QC referred me to an article in the London Review of Books published in June 2016 that featured the Claimant.
"[The Claimant] is an Australian/Antiguan computer scientist, businessman and inventor who challenges the world with visionary ideas. He is the creator of Bitcoin under the pseudonym Satoshi Nakamoto. His vision is a world with wide-scale adoption of Bitcoin as electronic cash and commodity money, and also the Bitcoin blockchain as a transformative technology platform. Currently, [the Claimant] is Chief Scientist for nChain – the global leader in advisory, research , and development of blockchain technologies… Before his early and extensive work with Bitcoin, [the Claimant] had over 20 years of experience in the fields of information technology and security, and is one of the most highly qualified digital forensics practitioners in the world… A prolific researcher, [the Claimant] has been a lecturer and researcher in computer science at Charles Sturt University [Australia]. He has also authored many articles, academic papers and books on IT, security, Bitcoin, and other cryptocurrency issues. [The Claimant] is now a sought-after public speaker internationally on security, Bitcoin and cryptocurrency topics, while also presenting his research findings at academic and business conferences."
"47. The defamatory attacks by [the Defendant] damage my integrity within the United Kingdom's community of business people with whom I primarily deal. Being labelled a fraud has a repellent effect with regard to future business – if people view me as a fraud, my proficiency as a computer scientist as well as my life's work will be called into question. Moreover, no one would reasonably enter into business dealings with someone thought to be a fraud.
48. The vast majority of my business peers are in the United Kingdom as well as my work place. Clearly, my reputation will suffer the most here as [a] result of [the Defendant's] defamatory attacks. I have solidly established my professional and personal reputation in the UK.
49. I came to the United Kingdom in part because I wanted to hire personnel of the highest calibre to work with me in developing, inventing and re-inventing technology that will positively impact people's lives. Being able to hire local PhD mathematicians has transformed nChain and helped it to grow substantially. These talented technicians want to join nChain because of my reputation in the field. Continual reputational attacks in the United Kingdom will dash any hope of hiring such talented people."
"There were questions in the wider Bitcoin community about the authorship of the Whitepaper and these questions were hindering my efforts to build a global business (both blockchain and coin) based on Bitcoin SV…"
Stage 1: nature and extent of publication
Stage 2: harm to reputation
Is the US the most appropriate jurisdiction?
The Set-Aside Application
i) Mr Tomlinson QC has identified no authority for the proposition that a claimant can be required to apply to the Court for permission to issue a Claim Form.
ii) The section provides that the Court does not have jurisdiction to "hear and determine an action". Unless a Claim Form is issued, there is no "action". If Parliament had intended what Mr Tomlinson QC is suggesting, it could have said so expressly, e.g. "a court does not have jurisdiction to issue a claim to which this section applies unless…".
iii) An action is completely constituted (e.g. for the purposes of limitation) when the Claim Form is issued, but it is not until the Claim Form is served that the defendant becomes subject to the Court's jurisdiction: Barton -v- Wright Hassall LLP  1 WLR 1119 . It is the issue of a Claim Form which invokes the Court's jurisdiction or machinery. Thereafter, the Court can make orders in the claim, including, for example, following a demand made of the claimant by a defendant an order that the Claim Form be served upon the defendant (CPR 7.7).
iv) After issue of the Claim Form, the CPR provides for questions of jurisdiction to be considered in two principal ways:
a) where applicable, the requirement to obtain permission to serve a Claim Form out of the jurisdiction as provided in CPR Part 6.36; and
b) the regime for objecting to the Court's jurisdiction under CPR Part 11.
Mr Tomlinson QC's submission would erect an entirely new regime, outwith Part 11, for jurisdictional challenges in defamation claims.
v) Challenges to the Court's jurisdiction are frequently fact-sensitive: e.g. whether the damage has been sustained, or will be sustained, within the jurisdiction (see CPR Part 6 PD6B §3.1(9)(a)). Whether s.9(1) applies is dependent on a factual assessment of domicile. Whereas, in some cases, a claimant may not know the domicile of the defendant, the defendant will. It is for him/her to raise the point by filing an Acknowledgement of Service objecting to the jurisdiction of the Court (CPR 10.1(3)(b)). Any factual dispute would then have to be resolved by the Court.
vi) In respect of s.9(1), the factual dispute is relatively straightforward to resolve: where is the defendant's domicile? However, s.10 Defamation Act 2013 uses precisely the same wording when providing that the Court "does not have jurisdiction" over a defamation claim that is brought against a person "who was not the author, editor or publisher of the statement complained of, unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher". If Mr Tomlinson QC's submissions were correct, before the Claimant could be permitted to issue a Claim Form, in a relevant case, s/he would equally have to satisfy the Court that it had jurisdiction under s.10. As the issues in Monir -v- Wood  EWHC 3525 (QB) demonstrate, in some cases, deciding whether the defendant is "author, editor or publisher" may be factually (and legally) complicated – requiring resolution at a trial. And that is before any consideration of the further factual issue of "reasonable practicability" under the section. On Mr Tomlinson's model, the Claimant and the Court would have to embark on this exercise, possibly ex parte, as a pre-requisite of being permitted to issue the Claim Form. How would such an application be made? Under Part 8? Or would a simple Application Notice under CPR Part 23 be sufficient? If it is permissible to proceed under Part 23, how would the Court resolve any factual disputes? Would there be need of disclosure, witness statements, a trial? All before a Claim Form has been issued?
vii) These practical issues, the absence of authority and the clear undesirability of establishing an entirely new regime for objecting to jurisdiction in defamation claims lead me to conclude that Mr Tomlinson's submissions must be rejected. The regime for objecting to jurisdiction is contained within CPR Part 11. It is for a defendant to raise an objection, based his/her domicile, under s.9 following service of the Claim Form. In a large number of cases, the s.9 issue is likely to have arisen at the earlier point of seeking the permission to serve the Claim Form out of the jurisdiction.
i) The Claim Form had been validly served on the Defendant by personal service under CPR 6.5(2) when he was present in the jurisdiction. No permission to serve out was required.
ii) Although the application before Master Thornett was for permission to serve an Amended Claim Form and Particulars of Claim out of the jurisdiction under CPR 6.38, the Master considered that such permission was not required. He made only an order permitting service of these documents by an alternative method under CPR 6.15. The domicile of the Defendant – and issues under s.9 – have no bearing on that decision.
iii) Mr Tomlinson QC submits that even if the Claimant considered that s.9 was not relevant to the application before Master Thornett it was nevertheless his obligation to alert the Master to the potential argument. I regard this as unrealistic. For my part, before I heard Mr Tomlinson's submissions, I had never before considered – or had it submitted to me – that it might be necessary for a claimant to apply for permission even to issue a Claim Form where s.9 was potentially engaged. I do not consider that this was a point that the Claimant was realistically required to raise before the Master. Consistent with my analysis, if it was to be relied upon, s.9 was a point to be raised by the Defendant, as he did in his Acknowledgement of Service dated 13 June 2019. On an ex parte application, the duty is to alert the Court to all matters that might fairly be regarded as being material to the Court's decision. I am satisfied that Mr Tomlinson's ingenious argument did not fall into that category.
Note 1 CPR Part 6.38 enables the Court to grant permission for service of documents, other than the Claim Form, out of the jurisdiction. CPR Parts 6.36 and 6.37 provide the rules governing service of the Claim Form out of the jurisdiction. [Back]
Note 1 CPR Part 6.38 enables the Court to grant permission for service of documents, other than the Claim Form, out of the jurisdiction. CPR Parts 6.36 and 6.37 provide the rules governing service of the Claim Form out of the jurisdiction. [Back]