Joseph Pacini v Dow Jones & Company Incorporated
| Jurisdiction | England & Wales |
| Judge | Richard Parkes |
| Judgment Date | 03 July 2024 |
| Neutral Citation | [2024] EWHC 1709 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2023-001311 |
[2024] EWHC 1709 (KB)
HHJ Richard Parkes KC
Sitting as a Judge of the High Court
Case No: KB-2023-001311
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson KC (instructed by Withers LLP) for the Claimants
Catrin Evans KC and Ben Gallop (instructed by Pinsent Masons LLP) for the Defendant
Hearing date: 12 December 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 3 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HIS HONOUR JUDGE Richard Parkes KC
The Claimants and Their Background
The Claimants, Joseph Pacini and Carsten Geyer, are investment bankers.
According to the Amended Particulars of Claim (‘APOC’), the Claimants were formerly senior executives of the XIO group of companies, which is said to have been a global alternative investments business with offices in London, Hong Kong and Shanghai. The Claimants were two of the four founding partners of XIO, and worked in the XIO businesses between 2014 and 2020. Mr Pacini was Chief Executive Officer and Mr Geyer was Head of Europe.
XIO's European business was based in London, where its UK arm was XIO (UK) LLP (‘XIO UK’). XIO UK is said to have employed most of XIO's senior investment executives.
According to Mr Pacini's evidence (as opposed to the account in the APOC) Mr Pacini seems not to have been an employee or director of XIO UK. He says that he was a Partner (whatever that signifies in the context of a limited company) and the CEO of XIO Partners HK Ltd (‘XIO HK’), and he was held out as a ‘Partner of the XIO Group at large’ which, he says in his evidence, was ‘the name used to refer to the various XIO related entities’. According to his evidence, XIO Group was a global alternative investment firm headquartered in London, which had operations in various jurisdictions including the UK, the Cayman Islands and Hong Kong. He was, it appears, ‘publicly known’ as the CEO of XIO Group. He does not say whether he actually held that post, or whether he was simply held out as holding it. He left XIO Group in February 2020 and (with Mr Geyer and others) set up SGT Capital LLC (‘SGT’)
Mr Geyer's evidence is that he was initially a consultant to XIO Group, and went on to be employed by XIO UK as Head of Europe, and to be ‘held out’ as a Partner of XIO Group, although not a partner in a legal sense. He left the employment of XIO Group in January 2019 but remained as a ‘senior adviser’ through a ‘separate advisory entity’ until February 2020, when he and Mr Pacini and others set up SGT.
In short, it appears that the two Claimants were two of the four founding partners of XIO Group and held very senior positions in XIO Group. XIO Group appears to have been the entity that controlled the other XIO operations, in which they also held positions (Mr Pacini in XIO HK and Mr Geyer in XIO UK).
According to Mr Pacini's evidence, when XIO UK was set up as the UK arm of XIO Group, the sole director and shareholder was Athene Li. His evidence is ambiguous as to whether she was the sole director and shareholder of XIO Group or of XIO UK. He says that he and Mr Geyer left XIO Group in February 2020 after they had been involved in a dispute with Ms Li.
He also says that XIO UK entered a Creditors' Voluntary Liquidation in February 2021, and has since been wound up. The Claimants do not say what happened to XIO Group, or what happened to its other operations. Mr Pacini says only that he has not kept up with the corporate affairs of XIO UK or the XIO Group generally, and does not know the status of each of the XIO Group entities, but assumes that they have been wound down.
Both Claimants are now resident in Switzerland and work in the field of private equity. Since 2020, they have been the joint managing directors of SGT.
The Claim
By Claim Form issued on 16 March 2023, the Claimants complain of two articles written by Simon Clark and published by the Defendant (‘Dow Jones’), which owns and publishes the Wall Street Journal (‘WSJ’) worldwide on its website at WSJ.com. One article was published on Dow Jones' website on 16 March 2017 (‘the First Article’) and the second on 31 January 2018 (‘the Second Article’). Both Articles continue to be accessible online to WSJ.com subscribers.
The Claimants sue in data protection. They allege breach of the General Data Protection Regulation, as maintained by the European Union (Withdrawal) Act 2018 (the UK General Data Protection Regulation, or “UK GDPR”) and of the Data Protection Act (“ DPA”) 2018, and claim compensation in accordance with UK GDPR Art 82 and/or DPA 2018 s168, a declaration that the personal data processed are inaccurate, and a compliance order under DPA 2018 s167, requiring erasure of the data and the taking of the steps prescribed by Arts 17(2) and 19 UK GDPR.
The Application
Dow Jones apply by notice dated 22 August 2023 for an order striking out the claim pursuant to CPR 3.4(2)(b).
Certain concessions have been made by the Claimants, as a result of which the scope of the application is now narrowed. It is now advanced only on the basis set out at ground 1 of the application, namely that the claim is purely tactical and an abuse of process, (a) because it is in reality a statute-barred defamation complaint dressed up as a claim in data protection, and brought in data protection to avoid the rules which apply to defamation claims, and (b) in the sense identified by the Court of Appeal in the case of Jameel v Dow Jones & Company Inc [2005] QB 946.
The Articles Complained Of
The First Article, first published on 16 March 2017, reads as follows:
DID XIE ZHIKUN'S NEARLY $1 BILLION GO MISSING? A PRIVATE-EQUITY MYSTERY
Chinese investor says he backed XIO Group big-time; it says he didn't, and now he has filed suit
When Chinese billionaire Xie Zhikun toured Europe in the summer of 2015, his hosts took him to the Aston Martin factory in the English Midlands, to the women's tennis final at Wimbledon and to dinner at London's Connaught Hotel, where he was presented with a portrait of himself painted in tea, according to people who helped organize the visit.
Mr Xie and his chaperones on the trip, executives at London private-equity firm XIO Group, stopped in on companies the firm was buying, according to current and former employees of XIO and an agenda of the trip reviewed by The Wall Street Journal, as well as visiting investment prospects like the sports-car maker they code-named “Project Bond” after its most famous client, the fictional British spy James Bond.
Now, that seemingly friendly relationship is in tatters. The billionaire says it was his money—nearly $1 billion—that seeded XIO and allowed it to buy its first two companies. But XIO wasn't returning his phone calls, he says. In court papers filed in the Cayman Islands, where companies at the center of the dispute are incorporated, Mr Xie is accusing XIO executives of a conspiracy to defraud him out of his cash. XIO says it doesn't have Mr Xie's money and never did. An XIO spokesman didn't respond to questions about whether any entity affiliated with Mr Xie has been an investor and XIO has denied his allegations.
Mr Xie is one of the rising number of wealthy Chinese making overseas investments even as Beijing imposes tighter capital controls. He is spreading across the world billions of dollars of the fortune he made in forestry and finance, according to company filings and people familiar with the matter. XIO, founded in Hong Kong in 2014, has a brief history in private equity but made a splash last year when it bought California-based automotive-research firm J.D. Power for $1.1 billion.
‘Xie Zhikun is not an investor with XIO and never has been’ — XIO Chief Executive Joseph Pacini
In legal filings and documents reviewed by the Journal, Mr Xie says he invested a substantial sum in XIO in 2014—and he wants it back. XIO Chief Executive Joseph Pacini said in an email that “Xie Zhikun is not an investor with XIO and never has been,” and denied his allegations. He declined to discuss the European tour. He said other investors—not Mr Xie—provided $3.2 billion to the firm in 2014.
Mr Xie, 56, couldn't be reached for comment. A Beijing-based spokesman for his company, Zhongzhi Enterprise Group, declined to comment. A spokeswoman for Mr Xie's legal representatives in the Cayman Islands at law firm Maples and Calder declined to comment.
The tussle erupted in December. A representative of Mr Xie sent two letters, which the Journal has reviewed, to XIO's office in the Shard skyscraper in London. One letter says that in 2014 Mr Xie provided 5.8 billion yuan—$940 million at the time—to help set up XIO and to fund the acquisitions of two medium-size companies. The letter demands answers about what happened to what it described as Mr Xie's “very significant” investment following six months of “unanswered requests for information and documents.” The second letter asks further questions about what happened to Mr Xie's money.
Apparently unsatisfied, Mr. Xie in February sued in a Cayman Islands court, accusing XIO Chairwoman Athene Li and CEO Mr Pacini of receiving “secret profits” from the alleged fraud. Ms Li declined to comment.
Mr Xie, an imposing figure well over 6 feet tall, is known in China for his wealth and philanthropic support for the arts and sciences. His pop-star wife, Mao Amin, regularly sings at shows and on state television, but Mr Xie keeps a lower profile. In 1995 he founded Beijing-based Zhongzhi, whose website states that it has 1 trillion yuan ($145 billion) of assets. Mr Xie's investments range widely and include electric vehicles and...
To continue reading
Request your trial