Raffaele Mincione v Gedi Gruppo Editoriale S.p.A
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Popplewell,Lord Justice William Davis |
| Judgment Date | 29 April 2022 |
| Neutral Citation | [2022] EWCA Civ 557 |
| Docket Number | Case No: CA-2021-000668 (formerly A2/2021/1176) |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 557
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Mrs Justice Tipples
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Popplewell
Lord Justice Warby
and
Lord Justice William Davis
Case No: CA-2021-000668 (formerly A2/2021/1176)
Lorna Skinner QC and Kirsten Sjøvoll (instructed by Withers LLP) for the Appellant
Aidan Eardley QC (instructed by Archerfield Partners LLP) for the Respondent
Hearing date: 24 March 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Friday 29 April 2022
Introduction
This libel case is brought by an Italian national with acquired British citizenship who is resident in Switzerland. He sues the Italian-domiciled publisher of a daily newspaper and weekly magazine, both of which are published predominantly in Italy and in the Italian language. The claim is limited to damages and other remedies in respect of publication in England and Wales. The questions raised by this appeal are about the court's jurisdiction.
If such a case was started today those questions would be answered by reference to s 9 of the Defamation Act 2013 (“the 2013 Act”). The court would have no jurisdiction unless the claimant presented a good arguable case that of all the places in which the statement complained of was published, England and Wales is clearly the most appropriate place to bring an action in respect of the statement: see Soriano v Forensic News LLC [2021] EWCA Civ 1952. But when this case was started jurisdiction over claims of this kind was still governed by the Recast Brussels Regulation, EU 1215/2012 (“the RBR”), which regulates jurisdiction in civil and commercial matters in EU Member States.
It is common ground that our courts have jurisdiction over the claim for damages on the basis that England and Wales is “the place where the harmful event occurred” within the meaning of Article 7(2) of the RBR. The questions for decision are whether Article 7(2) confers jurisdiction to grant two other remedies, namely (1) an injunction restraining further internet publication of the words complained of within the jurisdiction (“a domestic internet injunction”) and (2) an order pursuant to s 12 of the 2013 Act requiring the defendant to publish a summary of the court's judgment on the internet within the jurisdiction (“a domestic internet section 12 order”).
Tipples J, DBE (“the Judge”) answered both questions in the negative. She held that the answer to the first question was dictated by the decision of the CJEU in Bolagsupplysningen OU v Svensk Handel AB Case C-194/16, [2018] QB 963 (“ Bolagsupplysningen”). Alternatively, she held that if the court does have jurisdiction to grant an injunction as sought by the claimant no such order could be granted on the undisputed facts of the case. In the Judge's view, the answer to the second question followed logically from the answer to the first. She therefore made a declaration that the court had no jurisdiction over either claim. The claimant now appeals, contending that the Judge was wrong on both points.
For the reasons that follow, I disagree with the Judge's legal analysis but I think she was right to find that the court has no jurisdiction to hear the claim for a domestic internet injunction claim; and I also think that, subject to one new but minor point that arose during the hearing of the appeal, she was right to find there is no jurisdiction over the claim for a domestic internet section 12 order. With that qualification her order should stand, and this appeal should be dismissed.
The factual and procedural history
The claimant describes himself as a businessman with more than 20 years' experience in investment management and banking. He says he came to London to study in 1985 and lived here until 1999, undertaking a number of London-based roles in the financial sector. He worked in New York for a while, then returned to London. In 2008, he became resident in Switzerland. In 2009 he founded the WRM Group of companies which specialise in private equity, special situations and activist investing. From 2010 to 2019 London was his main home and he was tax-resident in the United Kingdom. In 2018, he obtained British citizenship along with his wife and his two daughters, who are in full-time education in the UK.
The defendant publishes La Repubblica, a daily newspaper, and L'Espresso, a weekly current affairs magazine. Both are Italian language publications, but the defendant does publish some of its articles in English. The newspaper and magazine are both published in hard copy and in a digital edition which is a replica of the hard copy edition. The digital versions are made available to subscribers via a website and then, after some time has elapsed, become freely accessible to non-subscribers worldwide. The newspaper and magazine have Twitter accounts through which they tweet links to their online articles. La Repubblica also has a YouTube channel. The claimant asserts that there are approximately 600,000 Italians resident in this jurisdiction and invites the inference that La Repubblica and L'Espresso each have a very substantial readership here.
The claimant complains of statements contained in four articles and two YouTube videos first published by the defendant on and between 29 September 2020 and 29 October 2020, all of which remain online and accessible from England and Wales. Most of this material was in Italian, but one of the articles was in English, apparently a translation of the first Italian article.
It is unnecessary to detail the contents of the articles and videos. Their gist and general nature are indicated by the headline to the English language article, “ This is how they stole money from the Pope”, and by the skeleton arguments for this appeal. The skeleton argument for the claimant says that the articles “make serious allegations against the claimant, including of corruption and fraud on a vast scale, and in respect of funds donated to the Vatican for charitable purposes”, and that they also accuse the claimant of “utilising intelligence about paedophilic activity within the church for the purpose of blackmail in his criminal schemes.” The defendant concedes that the articles refer to the claimant and “implicate him in a scandal concerning the alleged misuse of Vatican funds.”
A Claim Form and Particulars of Claim were filed and served on 17 December 2020 seeking (1) damages, (2) “[a]n injunction to restrain the Defendant whether by its officers, directors, servants or agents or otherwise from further publishing or causing to be published in this jurisdiction the statements complained of or any similar words defamatory of the Claimant”, and (3) “[a]n order pursuant to section 12 of Defamation Act 2013 that the Defendant publish a summary of the judgment in these proceedings”. Section 12 confers power to make such an order “where a court gives judgment for the claimant in an action for defamation.” Although not formulated in this way, it has become clear that the order sought under section 12 is for publication in this jurisdiction only.
In support of his claim the claimant alleged, with supporting particulars, that the publication in this jurisdiction of each of the articles and videos complained of “has caused and/or is likely to cause serious harm to the reputation of the claimant”. This was an essential averment given the scope and nature of the claim and the terms of s 1(1) of the 2013 Act (“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”).
On 5 February 2021, the defendant filed an application under CPR Part 11 seeking a declaration that the court had no jurisdiction to try the claims. The basis for the application at that stage was that the claimant could not show a better than arguable case on the issue of serious harm. After receipt of the claimant's evidence in response the defendant amended its application to drop the challenge to jurisdiction over the claim for damages.
In the amended application the primary relief sought was a declaration that the court had no jurisdiction to try the claims for (a) injunctive relief preventing publication in England and Wales of online statements or (b) a section 12 order requiring the defendant to publish online in England and Wales a summary of the court's judgment. Alternatively, the defendant sought a declaration that the court should not exercise such jurisdiction as it may have, insofar as such injunction and order would require the defendant to publish or to cease and desist from publishing online material. If successful, the defendant sought consequential orders striking out the corresponding parts of the claim form and Particulars of Claim or granting it summary judgment on those aspects of the claim. Those were the issues when the matter came before the Judge.
In support of the application, the defendant relied on two statements from its solicitor, Kevin Bays. The claimant relied on a statement of his own and one from his solicitor, Joanne Sanders.
The legal framework
Where a defendant raises the issue of jurisdiction in this way the claimant bears the legal burden of establishing that the court does have jurisdiction. The standard which the claimant must meet is a “good arguable case”. This means “more than a serious issue to be tried or a real prospect of success but not as much as the balance of probabilities”: ...
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