Napag Trading Ltd v Gedi Gruppo Editoriale S.p.A
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 13 November 2020 |
| Neutral Citation | [2020] EWHC 3034 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-004649 |
| Date | 13 November 2020 |
[2020] EWHC 3034 (QB)
Mr Justice Jay
Case No: QB-2019-004649
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
William McCormick QC (instructed by Carter-Ruck) for the Claimants
Aidan Eardley (instructed by Archerfield Partners LLP) for the First Defendant
Greg Callus (instructed by Reynolds Porter Chamberlain LLP) for the Second Defendant
Hearing dates: 21 st and 22 nd October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A. Introduction
These are applications by the Defendants under CPR Part 11 putting in issue the jurisdiction of the court to determine all or part of the claims brought by the Claimants against them. There is also an application to amend the Particulars of Claim which, albeit post-dating the Defendants' applications, it is convenient to deal with at the same time rather than sequentially. Although the Defendants have brought these applications, it is common ground that — save in relation to one issue — it is for the Claimants to establish that the court does have jurisdiction.
Napag Trading Limited (“the First Claimant”) is an English-domiciled company. Napag Italia Srl (“the Third Claimant”) is an Italian-domiciled subsidiary of the First Claimant. Sgr Francesco Mazzagatti (“the Second Claimant”), an Italian national with his main residence in Dubai, is the CEO and sole director of, and 95% shareholder in, the First Claimant. The First Claimant trades, and the Third Claimant has traded, in petroleum-based products.
Gedi Gruppo Editoriale S.p.A. (“the First Defendant”) is the publisher amongst other things of L'Espresso which is a weekly Italian-language political and cultural magazine available both in print and online in this jurisdiction. Società Editoriale Il Fatto S.p.A. (“the Second Defendant”) is the publisher of Il Fatto Quotidiano (“ Il Fatto”), a daily Italian-language newspaper published in England and Wales only on the internet.
The allegations over which the Claimants sue relate to stories by both Defendants about an investigation brought by the public prosecutor in Milan into corrupt payments made or intended to be made to a man convicted of bribing judges in Italy, and the trading of oil in breach of international sanctions (or at the very least the US embargo) against Iran. The Claimants allege that these stories impute that Napag (by which they mean both companies and the Second Defendant as their alter ego) was involved. The subject-matter is somewhat convoluted if not at times confusing, and at this stage I am attempting only the most abbreviated summary.
The two articles by the First Defendant were published on 11 th and 25 th October 2019. The four articles by the Second Defendant were published on 1 st and 9 th November 2019 and on 23 rd and 24 th January 2020. On 25 th May 2019 the Second Defendant had published an article which in my opinion was more defamatory than its later stories: this is the subject of a separate claim which, aside from similar questions of jurisdiction, faces a possible limitation difficulty. There are other articles published by separate entities which the Defendants point out are also defamatory of the Claimants or some of them, but I will ignore these for present purposes.
The parties' Application Notices raise the following principal issues:
(1) whether each of the Claimants can show to the necessary standard all of the elements of a claim for libel under the law of England and Wales.
(2) whether the First Claimant's “centre of interests” is England and Wales.
(3) whether the proceedings should be dismissed or stayed on the ground of forum non conveniens.
(4) whether the Claimants should have permission to amend their Particulars of Claim.
The third and fourth issues have fallen away. Only the Second Defendant saw fit to raise a forum non conveniens challenge in advance of 1 st January 2021 and the relevant EU regulation no longer applying. I would have been very reluctant to rule on this sort of application on an anticipatory basis. Adopting the steer of Mr William McCormick QC for the Claimants, which Mr Greg Callus for the Second Defendant did not seriously oppose, I refuse this application without prejudice to the Second Defendant's ability to restore it at an appropriate time should the need arise. As for the fourth issue, apart from tidying up the numbering of the Claimants, the substantive purpose of the amendments is: (1) to make it clear that the Third Claimant ceased trading in May 2019, (2) to reorganise the claim for special damage in connection with the costs of a public relations consultant, (3) to clarify the position as regards the suspension of a credit facility, and (4) to delimit the claims for injunctive relief. Point (1), which emerged only in the Second Claimant's witness statement dated 8 th September 2020 and was not originally pleaded, is now relied on by the Defendants as demonstrating that the Third Claimant cannot have suffered serious harm in consequence of allegedly defamatory pieces which were not published until the autumn of last year. Point (2) has fallen away inasmuch as this head of special damage is no longer pursued. However, the Defendants say that it leaves something of an afterglow. Point (3) is of minor import and is not separately opposed; point (4) likewise.
This leaves the first and second issues which are of some legal and factual complexity. My task has been facilitated by the quality of the submissions of all three Counsel (I have not yet mentioned Mr Aidan Eardley for the First Defendant whose submissions in reply were particularly impressive) and all the work done by their instructing solicitors in preparing the case.
B. The Claimants
The Second Claimant is an entrepreneur, born in Calabria in 1986 and now living in Dubai. He founded the Third Claimant in 2012. Initially, it traded in oil and petroleum products from offices in Rome. The Third Claimant dealt in particular with the Italian oil company Eni S.p.A. (“Eni”), headquartered in Rome and in part state-owned, and Eni Trading & Shipping S.p.A. (“Ets”) which is based in Rome and has a branch in London.
On 19 th April 2018 the Second Claimant incorporated the First Claimant. His evidence is that London was a better base from which to conduct and grow his business because he was encountering resistance from some banks and financial institutions who were diffident about working with an Italian company. More specifically, the strategy was to hive off the Third Claimant's oil and gas business into the First Claimant, and the former would devote itself to trading in petrochemicals. Additionally, the idea was to invest in an “upstream” development in the UK Continental shelf, and the first discussions about this were in November 2018.
The First Claimant then became the holding company of the Napag Group which in the spring of 2018 included a different company based in the UK, Napag UK Ltd (incorporated on 18 th December 2017), a company registered in Dubai, and two other companies. Napag UK Ltd was struck off the register on the Second Claimant's application in September 2018, being no doubt surplus to requirements.
The Second Claimant is the CEO and sole director of the First Claimant. As I have said, he is the beneficial owner of 95% of its shares; his wife, who is Bahraini, owns the balance.
The Third Claimant ceased trading in oil and gas in August 2018 and ceased trading altogether at the end of May 2019. It is asserted that this was due to the publication of the Second Defendant's article on 25 th May 2019, and that “from about that point until about early October 2019 it attempted to enter into further trades but it did not succeed in doing so” (see para 2 of the draft Amended Particulars of Claim).
The Second Defendant, with reference to the quality of the Second Claimant's emails, seeks to make something of the fact that his English is poor. To the extent that anything turns on this, I accept the Second Claimant's evidence (applying the appropriate standard of proof which I explain below) that his oral English is “completely fluent”. It is true that fluency in a foreign language means different things to different people and covers numerous gradations of proficiency but the Second Claimant, who is obviously a successful entrepreneur and a man of some ability, speaks English well enough to communicate in it with his wife and close friends and to conduct 80% of his business. His witness statement may have a patina of sophistication that goes beyond his unaided level of written English, but I reject the thinly veiled suggestion that his solicitors have written it for him.
C. The Draft Amended Particulars of Claim
A number of meanings, both natural and ordinary as well as inferential, are pleaded in relation to the six articles which are the subject-matter of this litigation. It is unnecessary to dwell on the Claimants' case about these because, pace a number of Mr Callus' detailed submissions on the topic, I do not propose to resolve these applications as if this were the hearing of a preliminary issue on meaning. To the extent relevant, I will be addressing the text of the articles in sections H and I below. However, a...
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