Nandi Ahuja (Claimant/Respondant) v Politika Novine I Magazini D.O.O and Others (Defendant/Applicants)
| Jurisdiction | England & Wales |
| Judge | Sir Michael Tugendhat |
| Judgment Date | 23 November 2015 |
| Neutral Citation | [2015] EWHC 3380 (QB) |
| Date | 23 November 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15X02051 |
[2015] EWHC 3380 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Michael Tugendhat
Case No: HQ15X02051
Jonathan Price and Maria Georgian Solicitor-Advocate (instructed by Sutovic & Hartigan) for the Defendants
Hugh Tomlinson QC and Sara Mansoori (instructed by Withers LLP) for the Claimant
Hearing dates: 5, 6 and 23 November 2015
PARTIES
In this action for misuse of private information and libel the Defendants apply to the court for orders setting aside the order dated 31 March 2015, by which Master Roberts gave permission for service out of the jurisdiction in Serbia; and/or a declaration that the court has no jurisdiction to hear the claim and; and/or in the alternative, a declaration that the court should not exercise any jurisdiction it may have to hear the claim. The application was made on 22 July 2015.
The First Defendant is the publisher of 'Politika', a daily newspaper in the Serbian language, circulated in Serbia and neighbouring countries in hard copy, and on the internet to anyone anywhere in the world who chooses to access its website. In their letter of complaint dated 23 February 2015 the Claimant's English solicitors wrote that 'We understand that Politika is Serbia's oldest and highest regarded national broadsheet'. In the issues of Politika dated on 12 and 13 February 2015, respectively ('the Articles' and 'the First Article, and 'the Second Article') there appeared two articles naming the Claimant. The Second Defendant is the Editor of Politika. The Third Defendant is a journalist living and working in Serbia who wrote the text of the words complained of.
The Claimant is a businessman. In his first witness statement, made in support of the application to the Master, and the letter dated 23 February 2015 (requesting the immediate removal of the words complained of) the Claimant's English solicitors described him as follows. He has 'an international/global purview for investing my family's and my own funds'. The nature of his work means that he has to travel very frequently, over 200 flights per year over the past five years. He is rarely in one country very long, but his closest ties are in London. He came to London to study in 1992. He has been resident here since 1995, with his Swedish wife, who he married in 2014. She has been resident here since 1998 and owns and runs a successful UK based company. He regards London as his home and the 'centre point' of his life, and describes 'the UK as feeling more like my home than any other country'. He is an Indian citizen with indefinite leave to remain in the UK. He achieved high academic qualifications in London, and was employed in London by Merrill Lynch as a Senior Banker in the Wealth Management Division for about 12 years to 2011. He spends most time in the UK, India and Austria, where his parents live. He is a member of the Supervisory Board of a large commercial enterprise in Serbia known as the Victoria Group, in the agro-industrial sector. He is the part owner of this business. In addition he and his family 'are significant and constructive foreign direct investors into Serbia'. He has an account with a Serbian bank.
Further information about him was disclosed subsequently, and its non-disclosure to the Master is one of the bases on which the Defendants rely in this case. He is also of Serbian nationality, and travels to Serbia using his Serbian passport. His mother is Serbian, he was raised in Serbia until he was aged nine. His foreign residences include a substantial apartment in Belgrade. He owns, or co-owns, properties in the USA. He also owns or rents properties in India and Austria. He speaks English fluently, and Hindi, German and Serbian (in order of proficiency, and not to the same standard as English). In his second witness statement sworn on 22 October 2015 he summarised his position as follows: 'I do have links to Serbia through my current involvement as an investor and member of the Supervisory Board of Victoria Group… through my Serbian passport which I am in the process of relinquishing, through two adjoining apartments I have in Belgrade and my early childhood growing up in Yugoslavia and my half Serbian mother (who has dual nationality).'
WORDS COMPLAINED OF
Since the primary claim in this action is for misuse of private information, it would be inappropriate to set out the words complained of, although I should note that the Claimant states that the figure mentioned in the First Article is inaccurate. A description will suffice. The First Article, as published in Serbian on the internet, consists of text illustrated by two prominent photographs. One photograph is of the name and logo of HSBC and the other is of bundles of euro bank notes, including one of 500 euro notes. The gist of the article is that the Claimant transferred a large sum of money from a Serbian bank to a Swiss one. The article includes a disclaimer ('the Disclaimer'): 'The hero of our story from India is certainly not the Serbian tycoon who tried to launder Euros 20 million in a Swiss branch of the British bank HSBC, about which our newspaper informed readers two days ago. While researching which Serbian businessman is in question, Politika discovered this unusually big transaction'. It also includes the statement: 'This businessman's move shocked bankers and caused a weakening of the Dinar, but there were no grounds for the state authorities to stop that transfer of money from an account in our bank to an account in a Swiss bank'.
The Second Article is headed (in its English translation) 'The state knows who was taking millions to Switzerland'. It again refers to the unnamed 'tycoon' who is distinguished from the Claimant in the Disclaimer. The Second Article repeats the Disclaimer, and states that he did not transfer the money in cash, but transferred it from one account to another. The Second Article refers to remarks said to have been spoken by the Prime Minister of Serbia at a press conference. In relation to transfers out of Serbia generally, he is quoted as saying that 'this is something the Tax Administrator should deal with…' As to the money transferred by the Claimant, the Prime Minister is reported as saying: 'I know of all these cases of taking money out… The man in question is Indian, Nandi Ahuja, a member of Victoria Group's Supervisory Board…'
The Claimant complains that the disclosure of bank transfers made by him is an infringement of his right to privacy, and this is so whether or not the figure reported is accurate (he says it is not accurate). He also contends that the words he complains of in each article are defamatory. The meanings attributed to these words in his letter of 23 February 2015 is that he 'knowingly or recklessly undermined and weakened the dinar currency of Serbia… [and] there are grounds to suspect [he] is guilty of unlawful tax evasion'.
While the words published by the Defendants were all written in the Serbian language, what the Claimant complains of is the publication to readers in the English language. He contends that the words in English can be easily read by persons who are using a search engine to search for references to the Claimant and who, when they see results in Serbian, click on the icon which sets in motion Google Translate, or an equivalent application, to produce an immediate translation.
THE NUMBER OF READERS OF THE WORDS COMPLAINED OF
In her written submissions put before the Master, counsel referred to the first witness statement of Mr Rupert Cowper-Coles, the Claimant's solicitor, who referred to what appears to have been an oral report from the well-known IT expert Dr Godfrey. The solicitor stated that Dr Godfrey did not have access to the most accurate data source, namely the server hosting the words complained of, which would allow with approximately 80% accuracy a determination of the geographic location of the internet device or server from which the words complained of had been accessed. Instead he used a service known as Alexa which provides commercial web traffic data. Using this source, he said, 'Dr Godfrey was able to provide me with very approximate web traffic from the UK to the Articles and other websites that republish the substance of the Articles. Dr Godfrey discussed with me by telephone on … 28 March this process… Dr Godfrey was able to estimate daily access to the Blic website from the UK at 11,000 and Politika at 1,000…' Dr Godfrey had made clear that his figures related to the website of these publications, not to any specific article.
The Claimant does not rely on the republications in Blic as publications for which the Defendants are liable. He relies on them as showing the damage he has suffered.
However, the Defendants challenged this evidence, and it is now accepted that it gives an inaccurate impression of the number of hits on the Articles. The witness statement of Natasa Sevic dated 22 July 2015 includes a table showing hits on the Politika website derived from Google Analytics, which is again approximate. This table includes hits for the period 12 February to 15 July 2015. This table lists 19 countries, including Serbia, from which there are shown by far the largest number, nearly 7000 hits for the First Article and nearly 3000 hits for the Second Article. Countries from each of which between 200 and 500 hits on the Second Article are recorded include Austria, USA, Canada, Bosnia and Herzegovina and Switzerland. There are seven countries from each of which between 100 and 200 hits are recorded, including Australia, Germany and Italy. The remaining six countries, including France and the UK, are...
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