Bvc v Ewf
| Jurisdiction | England & Wales |
| Judge | Parkes |
| Judgment Date | 26 September 2019 |
| Neutral Citation | [2019] EWHC 2506 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ18M02313 |
| Date | 26 September 2019 |
[2019] EWHC 2506 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Parkes QC
(Sitting as a Judge of the High Court)
Case No: HQ18M02313
Mr Gervase de Wilde (instructed by Taylor Hampton Solicitors) for the Claimant
The Defendant did not appear and was not represented.
Hearing dates: 19 June, 26 September 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Parkes QC
His Honour Judge Parkes QC:
Introductory
This is an application by the Claimant dated 17 April 2019 for summary judgment in a claim for misuse of private information and harassment. The privacy claim arises from internet publication, on a website created by the Defendant, of his account of his relationship with the Claimant. The harassment claim arises from a series of email communications from the Defendant to the Claimant over a period of some two years, and from publication of the website itself.
The parties were anonymised by order of Nicklin J on 27 June 2018.
The Defendant has served a Defence and Counterclaim. In the Counterclaim, the Defendant states that he relies on causes of action in negligence, battery and assault, intentional infliction of harm, trespass to goods, conversion, deceit, malicious prosecution and abuse of process.
The Claimant applies also to strike out, or for summary judgment on, the Defendant's counterclaim.
There is in addition an application by the Defendant. This is dated 5 June 2019. The application notice appears not to have been filed, because it does not bear a court stamp. I am told by Mr de Wilde, for the Claimant, and I accept, that it was served on his solicitors on Thursday 13 June. So insufficient notice was given. But Mr de Wilde did not take those points and was content to address the Defendant's application in his submissions.
The Defendant's application seeks an order striking out the claim pursuant to CPR 3.4 and discharging the interim injunction.
The Defendant did not attend the hearing of the application and was not represented. However, he has plainly been assisted in the conduct of his defence by someone with a sophisticated understanding of the law. I say that because there is no reason to suppose that the Defendant possesses that understanding himself.
He sent a nine page letter to the court and to the Claimant's solicitor dated 18 June 2019, which I saw on the morning of the hearing on 19 June. This is not the first time he has put in late unsworn documents: he did so before hearings on 4 July 2018 (Nicklin J) and 22 November 2018 (Dingemans J). The letter stated that he would not be able to attend the hearing, and that he did not live in England or Wales. He did not say why he was unable to attend. He did not state where he lived. The implication was that his inability to attend was linked to his place of residence. The letter was in effect (although not in form) a combination of a last-minute unsworn witness statement in response to the Claimant's third witness statement (itself sworn on 17 June 2019) and a written argument. I shall take the contents of the letter into account to the extent that they merit, without according them the weight of sworn evidence.
The sworn evidence before me consisted of a 45 page first witness statement of the Claimant dated 26 June 2018; a 70 page ‘supplementary’ witness statement of the Defendant dated 2 April 2019 (responding belatedly to the Claimant's first witness statement); a 33 page second witness statement of the Claimant dated 17 April 2019 in support of his current applications; an 83 page witness statement of the Defendant dated 5 June 2019; and a 12 page reply from the Claimant dated 17 June 2019, to which the Defendant's letter to the court was a rejoinder. There are also substantial exhibits, numbered BVC 1–5 (exhibited to the Claimant's first witness statement) and BVC 6–8 (exhibited to his second), and in the Defendant's case exhibited to his 5 June 2019 witness statement and numbered EWF 10–17.
I have also considered Particulars of Claim of 22 pages plus a confidential annex containing the material published on the Defendant's website, and a Defence and Counterclaim which runs to 187 paragraphs (and many more sub-paragraphs) over 76 pages.
Proceedings
Nicklin J granted the Claimant an ex parte injunction on 27 June 2018. By that order, the Defendant was restrained from contacting or harassing the Claimant, from publishing the website or any of its contents to the world at large, and from publishing any of the information set out in a confidential schedule, or any information which was liable to or might identify the Claimant as a party to the proceedings or as the subject of the confidential information. The information set out in the confidential schedule was information concerning the Claimant's sexuality and his relationship with the Defendant; his sexual life, including intimate details of sexual activity; his health, including intimate details relating to his mental and sexual health; his family life, including relationships with his mother and brother; financial information; and allegations that he had been involved in criminal or regulatory wrongdoing.
That injunction was continued by the same judge on 4 July 2018, and by Dingemans J on 22 November 2018. On neither occasion did the Defendant attend.
A number of costs orders have been made against the Defendant (by Steyn QC on 17 October 2018, by Dingemans J on 22 November 2018 and by Master Cook on 11 April 2019). They have not been satisfied.
Challenge to the Jurisdiction
At the hearing on 27 June 2018, the Claimant's evidence was that to the best of his knowledge the Defendant, who is a British citizen, currently lived and worked in England. On that basis, Nicklin J was satisfied that it was plainly arguable that there was jurisdiction to grant an interim injunction.
However, the Defendant then put in evidence to the effect that he currently lived and worked in Switzerland, has done so since 2017, and was in Zürich on 27 June 2018 when the Claim Form and accompanying documents were served on him by email. Residence is not, of course, the same thing as domicile, and the permanence or otherwise of the Defendant's translation to Switzerland may be moot. As I understand it, his evidence on his application to challenge the jurisdiction was that he is domiciled in Switzerland, and for present purposes that contention is not, I think, in issue.
Switzerland and the UK are parties to the Convention on Jurisdiction and the Recognition and Enforcement of Civil and Commercial Matters (2007) (the Lugano Convention). Art 2(1) of the Lugano Convention provides:
“Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.”
That general rule is the correlative of Art 4(1) of Regulation (EU) No 1215/2012, the Recast Judgments Regulation, which makes the equivalent provision for persons domiciled in a Member State of the European Union (which Switzerland is not).
So if, as the Defendant asserts, he is indeed domiciled in Switzerland, the starting point is that he should, all other matters being equal, be sued there.
Art 3(1) of the Lugano Convention provides that persons domiciled in a Convention State may be sued in the courts of another State (a State other than that in which they are domiciled) only as provided by the rules set out in Articles 5–24. (Art 5(1) of the Recast Judgments Regulation (RJR) echoes that provision for persons domiciled in an EU Member State.)
Art 5(3) of the Lugano Convention provides by way of special jurisdiction that
“A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued:
…
(3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur …”
Again, this has its correlative in the substantially identical Art 7(2) of the RJR (previously Art 5(3) of Council Regulation (EC) No 44/2001, the Brussels Regulation).
The question therefore arose in these proceedings whether the courts of England and Wales have jurisdiction in accordance with Article 5(3) of the 2007 Lugano Convention.
In eDate Advertising GmbH v X [2012] QB 654, it was held by the CJEU to be settled case law that the rule of special jurisdiction was based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred (or might occur). This close connecting factor justified the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings.
The special jurisdiction focus on ‘the place where the harmful event occurred’ in Art 5(3) Lugano and Art 7(2) RJR was intended to cover both the place where the damage occurred and the place of the event giving rise to it: see Shevill v Press Alliance SA [1995] 2 AC 18. Those two places could constitute a significant connecting factor from the point of view of jurisdiction, since each of them could, depending on the circumstances, be particularly helpful in relation to the evidence and the conduct of the proceedings ( eDate at [42]).
So in eDate (a case involving a defamation claim arising from a newspaper article distributed in several states), it was held that a claimant might bring a claim against the publisher either before the courts of the contracting state where the publisher was...
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