Euroeco Fuels (Poland) Ltd v Szczecin and Swinoujscie Seaports Authority SA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Baker,Lord Justice Lewison |
| Judgment Date | 11 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1932 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2018/1282 |
| Date | 11 November 2019 |
[2019] EWCA Civ 1932
Lord Justice Lewison
Lord Justice Bean
and
Lord Justice Baker
Case No: A2/2018/1282
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HON MR JUSTICE NICOL
HQ17M01583
Royal Courts of Justice
Strand, London, WC2A 2LL
Adrienne Page QC and Greg Callus (instructed by Mishcon de Reya LLP) for the Appellants
William McCormick QC (instructed by B P Collins LLP) for the Respondents
Hearing date: 16 October 2019
Approved Judgment
The Claimants appeal from a decision of Nicol J declining jurisdiction to hear and determine their claims for libel and malicious falsehood. The origins of the claims are words spoken by the Second Defendant in March 2017 at a press conference in Poland and a press release said to have been issued by the Defendants, also in Poland, to the press and other media. The reach of some of those Polish media included England and Wales. The Claimants rely on what are said to be republications of the words and the press release which took place in England and Wales by means of internet articles being read here and Polish broadcasts available here, again on the internet (“the Republications”).
The Claim Form was issued on 9 May 2017 and was served on the Defendants in Poland. By an application issued on 24 July 2017 under CPR Part 11 they disputed the Court's jurisdiction.
The Parties
The First Claimant (“EEF”) is a Polish company. It is the leaseholder of a site in the Baltic port of Szczecin in Poland. It operates an industrial scale alternative petrochemical production plant (“the EEF Plant”) which recycles used tyres into carbon and oil products. Before the English action began, the First Defendant had taken proceedings in Poland against EEF alleging that the EEF Plant was causing a nuisance because of the odours it emitted.
The Second Claimant (“Alphaco”) is an English company holding 87.5% of the shares in EEF. It is said to operate the EEF Plant, along with EEF itself.
Mr Timpany and Mr Harper, the Third and Fourth Claimants, are the CEOs or equivalent officers in the two Claimant companies. They are said to be publicly associated (especially in the UK) with the day to day operation of the EEF Plant and to have invested time and money in its establishment and operation and the development of the “clean” alternative energy which it deploys.
The First Defendant company is the landlord of the EEF Plant site and the administrator of the ports of Szczecin and Swinoujscie. The Second Defendant, Mr Milewski, is the First Defendant's Director of Port Infrastructure and Maintenance. The Third Defendant, Mr Slaboszewski, is the company's President. The First Defendant is said to be vicariously responsible for the other two.
The English claims
The Claimants rely exclusively on Republications within England and Wales of the words spoken by Mr Milewski in Poland and the Press Release issued in Poland. These were all in Polish but the judge had agreed translations before him. The essence of the pleaded complaint is that the Defendants were saying that the EEF Plant was emitting excessive levels of benzene and that in some cases the legal limit were being exceeded by several hundred per cent.
These remarks are said to have been picked up by the Polish media, television, radio, and internet news distributors. Nine particular Republications are pleaded whose reach is said to have included England and Wales. The Defendants are said to be liable for the Republications because Mr Milewski knew and intended from what he said to reporters that his words, or words to the same effect, would be republished. Mr Milewski reported to Mr Slaboszewski and had his authority to say what he did. It is alleged that the Defendants foresaw, or should reasonably have foreseen, that the Republications would include an audience in England where the owners, investors and potential investors in the EEF Plant or their agents and advisors were mainly situated.
Although the Claimants were not all named in the Republications, it is pleaded that they would all have been identified with the EEF Plant or EEF which the Republications did mention.
The Particulars of Claim plead that Mr Milewski's words, the press release and the Republications (all referred to in omnibus fashion) had the following meanings:
“(1) That the Claimants and each of them are guilty of conducting or of involvement in the management of an industrial operation at the EEF Plant which is in gross violation of the pollution standards imposed by Poland's environmental laws for the protection of the health and safety of the public by emitting toxic benzene at levels that are several hundred per cent above legally permitted (i.e. safe) levels.
(2) That in pursuit of their own business and commercial interests, the Third and Fourth Claimants are content to see put at grave risk of serious physical harm their own employees at the EEF Plant as well as the public who live and work in the vicinity of the EEF Plant by a gross and criminal disregard for Poland's environmental laws, put in place for the protection of the public's health and safety.”
The Claimants also plead that the Court should infer that all or most of those who read the Republications would know that human exposure to benzene above certain levels is associated with acute health disorders.
The Defamation Act 2013 s. 1 now provides:
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
The First and Second Claimants are bodies that trade for profit. Accordingly, so far as they are concerned, each Republication will only be actionable in libel if it caused or was likely to cause that Claimant serious financial loss. None of the four Claimants can succeed in libel in respect of any Republication unless that Republication caused or was likely to cause serious harm to the reputation of the Claimant in question.
The Claimants say that this jurisdiction is a major source of investment for them and that potential investors are likely to conduct a due diligence search of online materials which would, in turn, be likely to lead them to the Republications.
For the claims in malicious falsehood, the Claimants must plead and prove that the words were false. Mr Milewski's words and the press release are said to have been false for a number of reasons which include in summary the following:
i) the tests on which the Defendants apparently relied were conducted by a non-accredited laboratory;
ii) those tests, such as they were, did not show that the EEF Plant had ever emitted benzene at levels above the legally permitted levels or that they were hundreds of times in excess of those levels;
iii) those tests were not proper tests for annual levels but took snapshots which were inadequate for annual levels properly to be extrapolated;
iv) those tests did not establish any risk of benzene poisoning or other adverse effects on those who worked in or lived nearby the EEF Plant.
v) those tests did not distinguish between the contribution of the EEF Plant to such benzene levels as were emitted as opposed to a nearby road and rail freight line;
vi) those tests were not more detailed than benzene emission tests by a Provincial Inspectorate of Environmental protection (known as WIOS);
vii) the EEF Plant was fully compliant with the law on emissions standards for industrial facilities.
A further requirement for the tort of malicious falsehood is that the words must have been published maliciously. The Claimants allege that Mr Milewski and Mr Slaboszewski authorised and published the words and the press release for the dominant and improper motive of causing damage to EEF to the point where it has to be closed, allowing its site to be let by the First Defendant to other businesses which were more appealing to the Defendants. The Claimants allege either that the Defendants knew, before the words were spoken or the press release was published, that they were false and misleading or that they lacked an honest belief in their truth or were indifferent to their truth or falsity. It is said that at least two third party potential investors in the EEF Plant have decided against pursuing their interest and that the future of the Claimants' investment has been put in serious jeopardy.
Regulation (EU) No. 1215/2012 of the European Parliament and of the Council
This Regulation, known as “the Recast Brussels Regulation” (the “RBR”) applies in legal proceedings instituted after 10 January 2015 (see Article 66). It replaced the Brussels Convention of 1968 which had been given the force of law in the UK by the Civil Jurisdiction and Judgments Act 1982, as supplemented and amended from time to time. As an EU regulation, it still takes precedence over any conflicting domestic legislation. It was not suggested before us that the possible imminent exit of the UK from the EU should have any bearing on the outcome of this appeal.
One of the purposes of the Brussels Convention and of the RBR was to provide for a “clear and predictable” set of rules for determining which Member State should have jurisdiction to decide contested litigation. At this stage I note paragraphs (15), (16) and (21) of the preamble to the RBR:
“(15) The rules of jurisdiction should be highly predictable and...
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