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'Libel tourism' and the Defamation Act

Ahuja v Politika Novine I Magazine & OrsA claimant who brought a claim for defamation and misuse of private information has had permission to serve the claim against Serbian defendants in Serbia set Ahuja v Politika Novine I Magazine & Ors

A claimant who brought a claim for defamation and misuse of private information has had permission to serve the claim against Serbian defendants in Serbia set aside by Sir Michael Tugendhat in the High Court. The judge held that England and Wales was not the most appropriate jurisdiction in which to bring either claim.

This is the first decision on the 'libel tourism' provisionĀ in section 9 of the Defamation Act 2013.

Background

The claimant, Mr Nandi Ahuja, is a businessman who has been resident in London since 1995 and who has both Indian and Serbian citizenship. He has indefinite leave to remain in the UK which he regards as his home, although he also owns properties in India, Serbia, Austria and the USA. He has significant business interests in both Serbia and India to which he travels frequently.

The First Defendant is an established newspaper in Serbia which is 50% owned by the Serbian government. It published two articles in February this year which alleged, in summary, that by transferring a significant amount of money from Serbia to Switzerland, Mr Ahuja knowingly or recklessly undermined or weakened the Serbian dinar currency and that there were grounds to suspect he was guilty of tax evasion.

The Second and Third Defendants are the editor of Politika Novine and the author of the articles respectively, both of whom are Serbian.

Mr Ahuja brought a claim in both defamation and misuse of private information (the articles contained specific details of his finances). As the defendants are Serbian, Mr Ahuja required permission from the Court to serve the claim out of the jurisdiction. This was granted by the Court in March.

After the claim was served, the Defendants applied to set aside the order granting permission to serve out of the jurisdiction on the basis that (i) the Claimant had failed to provide full and frank disclosure to the Court when seeking permission to serve out; and (ii) in any event England and Wales was not the most appropriate jurisdiction to hear the claim.

The law

A claimant seeking permission to serve proceedings out of the jurisdiction must satisfy three conditions which are in summary:

  1. there must be a serious issue to be tried on the merits;

  2. 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;

  3. in all the circumstances England must clearly be the appropriate forum for the trial of the dispute.


 

When taking into account whether England is the appropriate forum, the Court should have regard to the natural forum for the pursuit of the claim, i.e. the jurisdiction with which the claim has its most substantial connection. The Court should also take into account whether there is a real risk that justice will not be obtained in a foreign court by reason of incompetence, lack of independence or corruption.

Defamation claims contain a further hurdle which a claimant must clear. Under Section 9 of the Defamation Act 2013, the court does not have jurisdiction to hear a defamation claim 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 to bring an action in respect of the statement.

Section 9 was introduced by Parliament to avoid 'libel tourism', the practice of foreign individuals or entities with little connection to the UK using its favourable defamation laws to bring claims against publications made in foreign jurisdictions.

When making an application for permission to serve out, the claimant must give full and frank disclosure of all facts and matters which it is material for the court to know.

Judgment

Non-disclosure to the Court

The Defendants' primary argument was that the Claimant had failed in his duty of full and frank disclosure when seeking permission to serve out. Specifically, he had failed to inform the Court that he held Serbian citizenship and a Serbian passport, in addition to his property and other interests in Serbia. It had been put forward by the Claimant at the hearing seeking permission that he only held Indian citizenship. This was not corrected until three months after the hearing and only after it had been raised by the Defendants.

The judge held that independent of other issues (on which he subsequently gave judgment) the order had to be set aside on account of the court being misled by the Claimant's failure to disclose his Serbian nationality.

Section 9 of the Defamation Act

Regardless of the Claimant's failure to disclose his Serbian nationality, the judge was not satisfied that of all the places in which the defamatory statements were published, England and Wales was clearly the most appropriate place in which to bring an action.

When determining whether England and Wales is the most appropriate place, the judge acknowledged that the Court should have regard to several factors, including:

  1. the extent of publication in England and Wales;

  2. the extent of the claimant's reputation in England and Wales;

  3. the harm suffered to the claimant's reputation in England and Wales;

  4. whether the claimant is domiciled in England and Wales;

  5. the convenience of witnesses and the relative expense of suing in other jurisdictions;

  6. whether there is any reason to believe that the claimant would not receive a fair trial in a foreign jurisdiction


 

The judge noted that an applicant is required to put before the Court the fullest reasonably available evidence as to publication in all places in which the words complained of have been published.

The judge accepted the Defendants' evidence (based on Google analytics data) that the statements had been published in 19 countries, and by far the largest number of hits was attributable to Serbia (7000 hits for the first article and 3000 for the second). By contrast, the UK produced only 70 hits, with 13 other countries having produced more. This weighed against England and Wales being the most appropriate place.

Further, the Claimant had only put forward limited evidence as to why England and Wales would be the most appropriate place or any material on which the Court could assess whether any of the other jurisdictions in which the statements were published (including Serbia) might be more appropriate. Mr Ahuja had stated that his reputation was global and this did not satisfy the judge that the main harm to his reputation had been done in England.

Misuse of private information

Sir Michael held that England and Wales was not the most appropriate forum for the misuse of private information claim. He believed that Serbia was the place for which the claim had the most real and substantial connection. Specifically, the claimant has a bank account in Serbia and was a member of the board of a Serbian enterprise. The harm complained of was closely connected with Serbia. Further, all parties had Serbian nationality, had residences in Serbia and spoke Serbian. The Claimant would suffer no significant cost or inconvenience in bringing proceedings in Serbia in contrast to the cost of trial in England.

Justice in Serbia

The Claimant argued that he was at risk of not receiving a fair trial in Serbia on account of the First Defendant being 50% owned by the Serbian government, which suggested overt political influence. However, the Claimant put forward no further substantial evidence on this point such as a witness statement from a Serbian lawyer. As a result, the judge held that this fell well short of the cogent evidence that the Court would require to conclude that there was a risk that the Claimant would not receive a fair trial in Serbia.

Comment

This case highlights the difficulties that claimants with global reputations may now face in light of the introduction of section 9 of the Defamation Act. Many high-net worth foreign individuals own properties in London and consider themselves resident in England, such as Mr Ahuja, yet section 9 is framed in a way that makes it more complex to establish that their claim should be heard by the English courts.

An individual with a global reputation must put forward persuasive evidence that England is the most appropriate place to bring a claim. As part of this, it will be important to convince the court that he or she has a reputation in England and that reputation has been harmed by the publication. In this case, Mr Ahuja stated that people in England had approached him about the Defendants' articles, but he failed to identify these individuals.

If a claimant has a reputation in many countries and a defamatory article has been published in several of those, the claimant should adduce the fullest reasonably available evidence about the publication in those foreign jurisdictions. If the article has been published online, the claimant should obtain data on the number of hits in each jurisdiction.

If a claimant believes they would not receive a fair trial in a foreign jurisdiction, they must put forward cogent evidence that this would be a real risk. Such evidence might include a witness statement from a lawyer or political expert in the particular foreign jurisdiction.

Finally, the duty of full and frank disclosure when requesting permission to serve out cannot be overstated. The judge did not hold that Mr Ahuja's failure to disclose his Serbian nationality was intentional, but it was undoubtedly a serious misjudgement which effectively torpedoed his claim.

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