Harrods Ltd v Dow Jones & Company Inc.
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 22 May 2003 |
| Neutral Citation | [2003] EWHC 1162 (QB) |
| Court | Queen's Bench Division |
| Date | 22 May 2003 |
| Docket Number | Case No: HQ02X01733 |
[2003] EWHC 1162 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ02X01733
Mr James Price Q.C. and Mr William Bennett (instructed by Kendall Freeman) for the Claimant
Mr Gavin Millar Q.C. and Mr Anthony Hudson (instructed by Finers Stephens Innocent) for the Defendant
Hearing dates : 7 and 8 May 2003
Approved Judgment
On 31 March 20002 Harrods Limited issued a press release under the heading "AL FAYED REVEALS PLAN TO 'FLOAT' HARRODS". It stated that an important announcement would be made the next day by the Chairman about his future plans for "the world famous store", which included what was described as "a first-come-first-served share option offer". It continued as follows:
"The information may help those journalists who have speculated during the last few months as a future direction of Harrods. The announcement will only be posted on the website until 12 noon on April 1 st.
To view the information, log onto alfayed. com and click on the Harrods story on the home page. The re-launched Alfayed. com is Mr Al Fayed's personal website and gives the visitor the opportunity to learn a little more about Mr Al Fayed, his life, his beliefs and his thoughts".
Anyone interested was invited to contact "LOOF LIRPA" at Harrods.
It will be noted that "Loof Lirpa" is simply "April Fool" backwards. The next day, 1 April, further information was released to the press which was introduced by the words "Hello and welcome to my brand new website. I hope you like it". Again, it was announced that the Chairman had decided to float Harrods and that those interested in acquiring shares could register on the website. The offer was said to "only be valid until noon today… the 1 st April".
As was no doubt intended, these announcements attracted a good deal of media attention. One consequence was that an article appeared in The Wall Street Journal on 5 April in the "Deals & Deal Makers" column. Under the heading "The Enron of Britain?" the following words appeared:
"If Harrods, the British luxury retailer, ever goes public, investors would be wise to question its every disclosure.
Harrods made "news" at the beginning of this week, when the London department store operator announced it was about to sell shares publicly. Some news organisations picked up the news item, including The Wall Street Journal in a news briefs column – but it was all an April Fools' joke. The gimmick was a promotion for the Web site of Mohamed Al Fayed, the company's Chairman. Clues that it was a joke included the fact that contact person listed to get more information was Loof Lirpa – April Fool spelled backward.
Not exactly Monty Python-level stuff. But Harrods was pleased with itself, "The reason we played out this April Fools' joke was to draw people's attention" to the re-launched and redesigned Web site, says Peter Willasey, corporate communications direct for Harrods. "We have no plans" to issue shares.
Can Harrods get in trouble for messing around with the facts? It is a private limited company. As such its actions aren't under the aegis of the Financial Services Authority, the U.K.'s securities regulator. A spokesman for Companies House, an agency of the Department of Trade and Industry responsible for regulating corporate governance in the U.K., said the body wasn't aware of any complaints.
As of yesterday, Harrods hadn't calculated the number of hits that Mr Al Fayed's Web site obtained to gauge the success of the bogus release. Mr Willasey says: 'Mr Al Fayed is delighted it has been picked up all around the world'".
It is to be noted that the above words did not appear in the European edition (i.e. Wall Street Journal Europe). It follows that the number of readers within this jurisdiction would be rather small, since it is to the European edition that most interested readers in England would turn. The evidence is that 10 copies only are sent to subscribers in the United Kingdom from the United States. The words in question were also published in the on-line edition ( www.wsj. com.) and in an Interactive Publications Library ( www.dinteractive. com). Again, so far, the evidence discloses a very small number of "hits" on the article as published on the web. By contrast, The Wall Street Journal has a national distribution within the United States of approximately 1.8 million copies.
A letter of complaint was sent from Harrods by Jeffery Byrne, its director of legal affairs, on 10 April 2002 which was addressed to Mr Peter Kann as publisher, chairman and chief executive, and to Mr Peter Skinner as executive vice-president and general counsel of the Journal. He wrote to complain "in the strongest terms" about the 5 April article and claimed that it had caused serious damage to Harrods' reputation worldwide and required the publication of an immediate apology. It was said to be "quite scandalous" to have equated Harrods with Enron. It was made clear from the draft apology that Harrods were seeking in addition "a substantial payment of damages" which was to be donated to charity. In due course proceedings were launched in this jurisdiction on 29 May 2002. By this time, the claim was limited to publication in England and Wales. That accords with the principle described by Lord Hope in Berezovsky v. Michaels [2000] 1 WLR 1004, 1032: "The rule which applies in these cases is that the plaintiff must limit his claim to the effects of the publication in England…"
No proceedings have been launched in respect of circulation within the United States, whether there or elsewhere, and this would hardly be surprising in view of the impact of the First Amendment to the United States Constitution upon the approach taken to libel litigation in the courts of that jurisdiction. It is well known that this also has a significant effect upon the approach of the American courts to the enforcement of judgments arising from English defamation claims.
The particulars of claim, which were served on 11 June 2002, attribute to the words complained of the natural and ordinary meaning that every corporate disclosure of Harrods Limited should be distrusted. There is, in the alternative, an innuendo meaning to the effect that "… It is reasonably suspected that if the Claimant were to become a public company it would prove itself to be Britain's Enron by deceiving and defrauding its investors on a huge scale". That is based upon the inference that readers would have known of the "scandal" surrounding the collapse of Enron and of the fact that it had "… artificially inflated its profits, employed improper accounting practices and deceived its investors and business counterparts on a huge scale". If it becomes necessary to do so, the Defendant, Dow Jones & Company Inc., would defend the allegations as not being defamatory and as representing a humorous response to Mr Al Fayed's April Fool's Day joke. For the moment, however, there are two applications before the court, on the Defendant's behalf, which are clearly of potential importance for the future of the litigation. There is, first, a challenge to the validity of the purported service of the proceedings within this jurisdiction and, secondly, an application to stay them on grounds of forum non conveniens. There is also, by way of response, a precautionary application on the Claimant's part for permission to serve the proceedings (should it prove necessary) out of the jurisdiction.
Not surprisingly, in the forum context, the Defendant places considerable reliance upon the old case of Kroch v. Rossell [1937] 1 All E R 725. In particular, I was reminded of the words of Scott L.J. (at 732):
"…it would be ridiculous and fundamentally wrong to have these two cases tried in this country on a very small and technical publication, when the real grievance of the plaintiff is a grievance against the wide-spread publication of the two papers in the respective countries where they are published".
It is submitted on behalf of the Defendant that it would be equally "ridiculous" to have this matter dealt with in England when the "real grievance" of Harrods Limited emerges on the face of the letter before action as having been "… serious damage to Harrods' reputation worldwide". Against that background, it is perhaps ironic that the matter has already come before Judge Victor Marrero in the United States District Court for the Southern District of New York, where Dow Jones sought intervention by that court with a view to avoiding enormous expense and uncertainty as to whether it might continue to publish the offending article. After a detailed consideration of the law, the learned judge found that "… a more appropriate alternative remedy exists for the parties in proceeding with the London Action", and concluded that it was appropriate for the court to refrain from "encroachment upon the British tribunals". He recognised that, if Dow Jones did not prevail in these proceedings, it would not necessarily be left without a remedy in the United States. That was, I believe, a reference to the unwillingness of courts there to enforce judgments based upon "legal principles inimical to prevailing American First Amendment jurisprudence and public policy".
I shall have to return to these delicate matters of forum in due course, but meanwhile I must address the equally important but more technical question of whether or not service has been effected in this jurisdiction.
On 29 May 2002 a copy of the claim form was left with Mr Jan Boucek, company...
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Table of cases
...v. Taylor, [1915] 2 K.B. 580 (C.A.) .......................................................... 165 Harrods v. Dow Jones & Co. Inc., [2003] EWHC 1162 (Q.B.)............................. 79 Harry, Re (1998), 144 F.T.R. 141, [1998] F.C.J. No. 189 (T.D.)............................. 23 Hassan a......
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Publication and Hyperlinks
...& Ors v. King, [2004] EWHC 168 Barrick Gold Corp. v. Blanchard & Co., 2003 CanLII 64238 (ON S.C.) Harrods v. Dow Jones and Company, [2003] EWHC 1162 (QB) Imagis Technologies v. Red Herring Communications Inc., 2003 BCSC 366 Berezovsky v. Michael, [2000] UKHL 25 Chapter 15: Publication and H......
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Jurisdiction
...[2004] EWHC 168 at para. 16 (QB) Barrick Gold Corp. v Blanchard & Company, [2003] O.J. No. 5817 Harrods v. Dow Jones and Company, [2003] EWHC 1162 (QB) 110 ✴ Cyberlibel: Information Warfare in the 21st Century? Imagis Technologies v. Red Herring Communications Inc., 2003 BCSC 366 Berezovsky......
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Jillistlictional Issues
...of defamation is committed. Dow Jones &> Co Inc.v. Gutnick, above, was considered in Harrods Limited v. Dow Jones cy Company Inc., [2003] E.W.H.C. 1162 (Q.B.), where Eady J. Chapter Eight: Jurisdiction ^ Issue s 151 held [at paragraph 36] that publications had taken place within England in ......