England deemed appropriate neutral jurisdiction for dispute between Middle East entities

In Qatar Airways Group QCSC v Middle East News FZ LLC & Ors [2020] EWHC 2975 (QB),  England was confirmed to be the appropriate forum for hearing Qatar Airways Group's ("QAG") malicious falsehood claim against a number of media companies alleged to have published a video containing material which was commercially damaging to QAG, notwithstanding that publication took place outside of England.

Background

Qatar has been subject to an economic blockade by Saudi Arabia, the United Arab Emirates ("UAE"), Bahrain and Egypt since June 2017. This has included a restriction on Qatari aircraft attempting to cross the territorial airspace of the blockading countries, although Qatari planes have been permitted to use designated 'air corridors' to fly in and out of the country.

On 9 August 2017, the UAE-based media network Al Arabiya made a live TV broadcast of a 2 minute video about the air blockade, which was subsequently distributed around the world and became the subject of articles in British newspapers such as The Daily Mail and The Independent. QAG claimed that the video incorrectly suggested that their flights could be legally shot or forced down under international law and that their passengers could be subject to harsh treatment despite flying in legitimate air corridors.

Proceedings

Following publication and dissemination of the video, QAG issued proceedings in England against Al Arabiya and two other Middle East-based entities, including the Arabic broadcaster, MBC and a UK company, Middle East News UK Limited, on the basis that the video contained malicious falsehoods which were commercially damaging to QAG. QAG alleged that Al Arabiya had substantial connections to the Saudi royal family and government and that the video and the alleged damage caused was, therefore, politically motivated.

Since three of the defendant companies were registered abroad, QAG obtained permission to serve the claim form outside the jurisdiction. However, the three Middle East-based Defendants issued an application to set aside that permission, challenging the appropriateness of England as the correct forum to hear the dispute. They also sought a strike out in respect of Middle East News UK Limited which was purportedly not responsible for the creation of the video.

The Defendants argued that there was no evidence of malice or falsity in the video and that there was accordingly no 'serious issue to be tried', a key component of establishing English jurisdiction. Even if there was, the Defendants submitted that the UAE would clearly be the appropriate forum and that QAG had not shown that it would face a real risk of substantial injustice if the claim was heard there.

Proportionality and Loss

Mr Justice Saini expressed concern, at the outset, that the parties had adduced copious evidence, authorities and factual arguments, an approach that would not have been out of place at a substantive trial. He stated that this was not a proportionate approach for an interlocutory hearing and was not the exercise the Court was required to undertake to determine jurisdiction. However, the Court accepted that would be impossible to address whether there was a 'serious issue to be tried' without some consideration of the video itself. The Judge found that, whilst it was not as "dramatic and threatening" as QAG had alleged, the video could be said to have misrepresented the position under international law by suggesting that flying with QAG might give rise to a risk of an aircraft being legally shot down or intercepted by a fighter jet. He also found that there was a plausible evidential basis for QAG's belief that Al Arabiya might have connections to Saudi rulers.

On the question of loss, the Judge noted that, of approximately 2.2m worldwide views of the video, the UK accounted for approximately 357,000, with coverage in the Daily Mail and Independent newspapers proving pivotal. QAG provided evidence that its sales in the UK and MENA regions fell 13% in the month immediately following publication, identifying a UK loss of approximately US $3.68m. Whilst the Defendants argued that this was only 10% of total UK plus MENA loss, Mr Justice Saini stated "that does not in my view change the fact that loss in the UK was significant and substantial in absolute terms," pointing to the fact that QAG's alleged UK loss was second only to its Qatar loss, despite operating in 113 states.

Having established that QAG had identified a potential loss sufficiently connected to the UK, the Court considered in detail whether the UK was the appropriate forum to hear the dispute. Broadly, this involved the consideration of whether QAG could be said to have a "good, arguable case" by reference to the jurisdictional gateways in CPR PD 6B, that there was a "serious issue to be tried on the merits" and that England would be the "proper place to bring the claim."

The Defendants' challenge to jurisdiction

In summary, the key points argued by the Defendants were that:

1. QAG had not properly made the case for malice in its pleadings and there was no realistic prospect of it establishing falsity, malice or dishonesty on the facts;
2. QAG's failure to plead the applicable foreign law was fatal to its claim for relief on a worldwide basis;
3. QAG had not provided evidence that the video was watched by a substantial number of people within England and, therefore, any damage suffered by QAG within the jurisdiction would not be significant relative to the damage sustained outside the jurisdiction; and
4. England was, in any event, not the appropriate forum for the case to be heard, according to the common law principle of forum conveniens.

Judgment

Mr Justice Saini found, having regard to each of the points above:

• That any initial deficiencies in QAG's pleadings as to malice had been remedied by an amendment. On the question of establishing falsity, malice or dishonesty, QAG had demonstrated to the Court's satisfaction that it had real prospects of showing that the video "was false and/or conveyed a false impression", "with the motive of harming QAG." As such, its claim was not entirely fanciful.  Further, QAG had established a substantial and efficacious act within the jurisdiction and a real and substantial tort.
• In a case where foreign law would apply in principle, it was enough to establish a serious issue to be tried to justify service if, inter alia, the claimant relies on the presumption and does not plead the content of foreign law and there are real prospects of success applying English law concepts.
• On the question of loss, the issue was not where the most substantial publication took place. In the Judge's view, "if there is a real and substantial tort in England, that is enough to defeat abuse". As such, it was sufficient that "a disproportionately significant proportion of the loss was suffered in the UK".
• Having regard to forum conveniens, other forums such as the Dubai International Financial Centre ("DIFC") and UAE courts would be geographically closer to both Claimant and Defendants. However, the 'appropriateness' of a forum is a wider issue than simply considering the 'natural' forum. Given the blockade, the Judge expressed doubts as to whether QAG would even be able to obtain full legal representation if the dispute were referred to the UAE courts.
• England was the appropriate forum in large part due to the fact that it is a neutral and highly respected forum with no political commitment to either Qatar or the Blockading States "and all parties will have equal access to justice", which would give any judgment "a greater vindicatory worldwide force."

As a result, the challenge to jurisdiction was accordingly dismissed. The Defendants' strike out application in respect of Middle East News UK Limited was, however, granted.

Summary

This judgment reaffirms England's reputation as a trusted and neutral forum for settling disputes between Middle Eastern parties and/or claims connected with the region. Whilst a valid cause of action and evidence of loss suffered in England and Wales is required in order for it to be deemed the appropriate forum, there is no requirement that the 'most substantial' harm be suffered in England for it to be the appropriate forum. Nor is there any requirement to adduce costly and complex additional evidence as to a mosaic of foreign laws to enable the Court to determine the appropriate jurisdiction.

In this case, the Defendants argued that the claim had no meaningful connection to England. The Court noted that only one of the five parties was domiciled here and that the claim against that entity had been struck out. The case also centred on a video in Arabic produced by UAE journalists, published on a UAE television news channel and on UAE websites which concerned the consequences of the blockade imposed by various Middle East states against another Middle East state. Despite all of that, England was the appropriate forum and the English Court was deemed to be "well suited to trying an action of this kind."

English law would still apply to the claims for loss suffered in England and whilst other foreign laws could also apply to losses suffered abroad, the English courts were sophisticated and well used to global disputes involving the application of foreign law and use of foreign language documentation. In this case, Mr Justice Saini held that the English Court was the correct jurisdiction to ensure that there would be "equality of arms in legal representation" and the most neutrality. Accordingly, even if another jurisdiction appears to be the 'natural' forum, it may not be the 'appropriate' forum if there are questions regarding access to justice in that forum.

However, it is important to note that the judge was careful not to hold a mini-trial, and the present judgment does nothing to settle the outstanding questions about the video published by Al Arabiya and whether there was indeed any dishonesty or malice involved in its publication. Such questions will need to be addressed in evidence in due course.

This article was authored by Fieldfisher Dispute Resolution Partner Aymen Khoury and Solicitor Suzanne Loding. For more information about cases on behalf of clients based in the Middle East or connected to the region please contact either Aymen or Suzanne.