Corinna Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 06 October 2023 |
| Neutral Citation | [2023] EWHC 2478 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-004165 |
[2023] EWHC 2478 (KB)
THE HONOURABLE Mrs Justice Collins Rice
Case No: QB-2020-004165
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Caplan KC, Andrew Green KC, Adam Chichester-Clark, Andrew Legg & Nina Ross (instructed by Kobre & Kim (UK) LLP) for the Claimant
Adam Wolanski KC, Derek O'Sullivan KC, Clara Hamer & Alexander Thompson (instructed by Velitor Law) for the Defendant
Hearing dates: 18 th–21 st July 2023
Approved Judgment
This judgment was handed down remotely at 12pm on 6 th October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mrs Justice Collins Rice
Introduction
The Claimant is an international businesswoman. She describes herself as a strategic consultant working with high-net-worth individuals and leading companies around the world. She does so through a portfolio of companies of her own. She is a Danish national and has been a long-term resident of Monaco. She has a home in England.
The Defendant was King and head of state of Spain from 1975 until his abdication in favour of his son on 18 th June 2014. He retired from public life in 2019. He remains domiciled in Spain, but since August 2020 has been living in Abu Dhabi (UAE).
The parties were in an intimate relationship between 2004 and 2009. Their relationship came to public attention in April 2012 in the aftermath of an elephant-hunting trip to Botswana which the Claimant arranged, which both attended, and from which the Defendant returned injured. That trip, its purpose and resourcing, and the parties' relationship, attracted public criticism.
The Claimant says she has suffered intrusive, intimidatory and adverse episodes ever since. She connects them with a payment of €65m she says the Defendant made to her soon after the Botswana trip and while he was still convalescing, in June 2012. She says he told her at the time it was an unconditional gift, but has since been putting her under improper pressure to allow him to control or make use of it, and she now suspects its original purpose was ulterior.
The Claimant has issued, and pursues, proceedings in the High Court of England and Wales, describing the episodes of which she complains and attributing them to the Defendant. She alleges this to be a course of conduct by him amounting to the tort of unlawful harassment.
The Defendant initially challenged the High Court's jurisdiction to try the claim, on grounds that his alleged conduct was subject to state immunity, arising from his past and present constitutional position in Spain. His challenge failed at first instance, but partially succeeded (on grounds of state immunity as a former head of state) in the Court of Appeal, which struck out parts of the claim relating to certain alleged episodes occurring before his abdication.
He now asks the Court to strike out (or give summary judgment on) the remainder of the claim, on a range of bases including further jurisdictional grounds, defective pleading and there being no realistic prospect of its success.
The Claimant meanwhile seeks permission to amend her claim, including to deal alternatively with the matters struck out by the Court of Appeal, to add further particulars of harassment, and to extend her claimed heads of liability and loss to include personal injury and an enhanced range of financial losses.
Both sets of applications were directed to be heard together. Directions were given for each party to provide a skeleton argument in support of their own application, and then to respond to their opponent's skeleton by way of a further skeleton each. That resulted in a total of 374 pages of skeleton argument, in advance of a four-day hearing of legal submissions on the multiple and diverse matters raised by these applications.
This is hard-fought litigation. Three years after the claim was issued, it has still only reached the stage at which the material question is how far, if at all, the Defendant can properly be expected to enter a defence to it. Notwithstanding, on this occasion, as at earlier stages of this litigation, the Defendant records his emphatic denial that he engaged in, or directed, any harassment of the Claimant, or conduct which was intended to cause physical or mental or emotional distress to her; he rejects her allegations to the contrary as untrue and inconsistent with previous public statements made by her.
PART I: JURISDICTION
A. PRELIMINARY
The Defendant's previous challenge to the High Court's jurisdiction to adjudicate on his conduct asserted state immunity. The outcome was a Court of Appeal ruling that this was not a general bar to the High Court's jurisdiction to entertain the Claimant's claim. But it did restrict the extent to which the claim could rely on certain previously-pleaded episodes in which the alleged involvement of the Defendant could only have been ‘under colour of authority’ of his previous constitutional position.
By his present application, the Defendant returns to the question of jurisdiction, but on an entirely different basis. This challenge relates not to the (personal or constitutional) capacity in which he is alleged to have acted, but to the nature of the tort pleaded and the geographical location in which it is alleged to have happened. He says the Claimant cannot make out the special jurisdictional basis, on which she accepts she necessarily relied in the first place, in bringing a harassment claim in England against a defendant domiciled in Spain.
The jurisdictional starting point in these circumstances is EU Regulation 1215/2012, the ‘Brussels Recast Regulation’ or BRR (and its predecessor texts). The BRR is the principal EU instrument allocating geographical jurisdiction, as between the courts of constituent Member States, over private law disputes with a transnational or international dimension. It is uncontroversial the BRR in principle has (post-Brexit) legal effect in this case. It is uncontroversial it establishes a default that in a case like this — a tort action brought against a single defendant for which no other specific provision is made — the claim must be brought in the courts of a defendant's country of domicile; and the courts of other countries will lack jurisdiction accordingly. It is uncontroversial also that the BRR provides a limited exception to that default provision, in the form of ‘special jurisdiction’ for foreign courts, in particular circumstances where not all of the components of the tort arise in the country of a defendant's domicile. The special jurisdiction depends on the relevant ‘harmful event’ itself occurring within the territory of the foreign court.
In the form in which it emerged from the Court of Appeal, the Claimant's claim is in the statutory tort of harassment, pleading a course of conduct, subsequent to his abdication, for which the Defendant is said to be responsible. Remedies sought include general damages (for anxiety and distress, and consequential financial losses), special damages (for medical treatment, additional security and measures to mitigate reputational damage), and injunctive relief.
In the form in which the Claimant now wishes to proceed with it, her claim in (post-abdication) harassment is contextually amplified as to the course (or ‘courses’) of conduct alleged, including by way of some new geographical detail as to the component episodes. It is extended to include new alleged incidents of harassment, notably by publication. The particulars of general damages include a claim for psychiatric injury. The particulars of special damages now include (very substantial) losses of business and income, and the costs of successfully defending legal and investigative procedures in the USA and Switzerland. And she wishes to add a claim in the tort of intentional infliction of injury, relying on the same course of conduct and the harmful effects said to have been deliberately produced by it.
The parties dispute the applicability of the BRR special jurisdiction to the pleaded factual circumstances of the Claimant's claim. However, the Claimant also says she need not demonstrate the applicability of the special jurisdiction, because the Defendant has already, by his own conduct of this litigation so far, conclusively ‘submitted to the jurisdiction’ of the High Court. It is not controversial that ‘submission to the jurisdiction’ is an alternative route to the assumption of jurisdiction by the High Court over a claim brought against a non-domiciled defendant. But the Defendant maintains he has not done so.
B. SUBMISSION TO THE JURISDICTION
(a) Legal framework
The BRR itself permits (subject to exceptions) parties to agree to submit to the jurisdiction of a court in a country other than that of a defendant's domicile or one in which special jurisdiction is established. It also provides, at Art.26, that ‘ apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction’. By actively defending a claim in a foreign court, in other words, a defendant is taken to submit to its jurisdiction.
As a matter of High Court procedure, jurisdictional challenge and submission to jurisdiction are dealt with generally by Civil Procedure Rule 11, which provides as follows:
11. Procedure for disputing the court's jurisdiction
(1) A defendant who wishes to –
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court...
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