Sang Youl Kim v Sungmo Lee
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 11 August 2020 |
| Neutral Citation | [2020] EWHC 2162 (QB) |
| Date | 11 August 2020 |
| Docket Number | Case No: QB-2019-000086 |
| Year | 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 2162 (QB)
Mr Justice Julian Knowles
Case No: QB-2019-000086
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Roberts (instructed by Andrew & Law Solicitors) for the Claimant/Respondent
Christopher Jacobs (instructed by Murray Hay Solicitors) for the Defendant/Applicant
Hearing dates: 26 June 2020
Approved Judgment
The Honourable
Introduction
In this claim the Claimant sues the Defendant for libel. There is before me an application by the Applicant/Defendant to strike out the claim under CPR r 3.4(2) and/or the Court's inherent jurisdiction. The Respondent/Claimant resists the application.
For clarity, in this judgment I will refer to the Applicant as the Defendant and to the Respondent as the Claimant. They are both Korean by birth, although the Claimant is now a British citizen.
At the relevant time the Claimant and the Defendant were based in England and worked as sports journalists covering, in particular, English Premier League football for South Korean media outlets. The Claimant was also a church pastor in New Malden, Surrey, which is an area with a significant Korean population. The Claimant and the Defendant covered stories that were of interest in South Korea, for example, the career of the Tottenham Hotspur striker and South Korean international Son Heung-min. They also covered Korean-related football stories in other countries.
The Claimant's claim relates to eight comments/stories posted on two social media accounts by the Defendant between 6 – 11 December 2018, to the effect that the Claimant is a serial cheat and fraudster. In summary, the Claimant's case is that the Defendant accused him ( inter alia) of making up stories, or misrepresenting the true factual position (eg, that he was present at interviews, or had conducted interviews, when he had not and did not), and so alleged that he was guilty of misleading and defrauding readers.
The posts went on to allege that this was the third consecutive year that such activity had been undertaken by the Claimant. Other allegations were made, including that the Claimant had fraudulently obtained access for friends of his to press zones at English professional matches, and that the Claimant had lied to an English football official.
Among the defamatory pleaded meanings is that the Defendant's comments meant that the Claimant is a ‘criminal’ who ‘cannot be trusted’ and that he has written articles that are ‘riddled with lies’. The Particulars of Claim make reference to words in Korean that are variously translated as ‘accuse’/'accusation’ or ‘prosecute’/'prosecution’ and suggest that the Defendant wrote that he would criminally prosecute the Claimant. Other defamatory meanings are also pleaded.
The Defence admits publications of four articles on each of two Korean social media platforms. There is a specific accusation that the Claimant wrote an article that made it appear he had been present when Mr Son was interviewed following a match when in fact the Claimant was not in the UK at the time.
The Defence takes issue with the Claimant's pleaded Particulars of Claim, including how certain words (including those I have mentioned) have been translated. Defamation is denied. Truth is pleaded (DA 2013, s 2), as well as honest opinion (s 3) and public interest (s 4). Serious harm is denied (DA 2013, s 1).
Procedural history
The Claim Form and Particulars of Claim were issued on 10 January 2019. The Defendant's address was given in London N12. The proceedings were served personally by the Claimant's solicitor on the Defendant in the UK. A Defence and a Reply were served thereafter. In April 2019 there was an application by the Defendant to strike out parts of the Claimant's Reply. A CCMC was held before Master Davison on 11 June 2019, at which directions were made for disclosure and witness statements. An order was also made for the joint instruction of a translator. These directions have been completed, save for joint instruction of a translator, in relation to which the parties have identified an appropriate translator to instruct, should the matter proceed to trial. The trial was listed for 15–18 June 2020, but that has now been adjourned. A new trial window has been set for 1 October – 13 November 2020.
The Defendant's application to strike out the claim was issued on 15 March 2020, approximately 15 months after the claim was served and only three months before the trial was originally listed. The application also sought other relief. These have been dealt with and so I am only concerned with the strike out application
The strike out application
The Defendant's submissions
The application is brought under CPR r.3.4(2) and/or the court's inherent jurisdiction, on the basis that the statement of case discloses no reasonable grounds for bringing the claim and/or because it is an abuse of process. Paragraph 1 of the Defendant's Skeleton Argument sets out four arguments in support of the application.
Firstly, the Defendant submits that he was not at the relevant time domiciled in the UK or in another (EU) Member state, or in a state which was for the time being a contracting party to the Lugano Convention. He further submits that England and Wales is not clearly the most appropriate place in which to bring a defamation action against the Defendant. Hence, he argues that by virtue of s 9 of the DA 2013, this Court has no jurisdiction to try the claim. I will call this ‘The Section 9 Point’.
Second, he submits that the Claimant can achieve no worthwhile vindication in the proceedings as the Defendant has been publicly vindicated by the South Korean authorities (‘The Public Vindication Point’).
Third, he says that the action is an abuse of process because the Claimant reported the alleged libels to the authorities in South Korea who declined to take any action. He therefore says it is an abuse of process to allow the Claimant to bring his claim where the authorities in the natural forum have rejected it (‘The Abuse of Process Point’).
Fourth, he argues that the Claimant cannot establish a ‘real and substantial tort’ within the jurisdiction of England and Wales. The matter is a South Korean matter and has been dealt with by the prosecuting authorities in South Korea, the determination of which is in the public domain and has been published extensively in social media and in South Korean news articles. He says, in essence, that this claim is incapable of achieving anything of value for the Claimant and so is an abuse of process and he relies on Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946, [53], and Ames v Spamhaus Project Ltd [2015] 1 WLR 3409, [58] (‘The Jameel Point’).
The second, third and fourth arguments are interlinked.
The Claimant's submissions
The Claimant submits in response that there is clear evidence that the Defendant was domiciled in the UK at the date the proceedings were issued, or that it is at least arguable that that was so. He therefore says that s 9 does not apply. But even if the Defendant was not domiciled here, the Claimant submits that whether England and Wales is clearly the most appropriate venue is a matter for trial.
Second, the Claimant says that he has not been publicly vindicated in South Korea and that there is ongoing harm to his reputation in the UK.
Third, he says that what occurred in South Korea following his criminal complaint was sufficiently different that it has no bearing on the libel proceedings in the UK and does not render them an abuse of process.
Fourth, he maintains that he has suffered and will continue to suffer serious harm in the UK to his reputation because of the Defendant's allegations. A real and substantial tort has been committed here and the Defendant's publications were widely read among the Korean community. Among other things, he has been shunned by members of his church and by some of his journalist colleagues, he has lost his sports column, and has suffered harm within the jurisdiction.
The Defendant's evidence
On 23 June 2020 a second witness statement was served by the Defendant, in which he asserted, for the first time, that he was not domiciled in this jurisdiction at the time claim was issued in January 2019.
In [1(1)] of that statement he admitted that he was living in the UK at the time of publication, but denied being domiciled here. Later, at [9] he admitted having lived in the UK from 2015 to 2019. He said that he always worked with South Korean companies; frequently travelled there; never got permanent leave to remain here; and never applied for British citizenship. He also maintained that all the postings complained of on social media were aimed at Korean readers and that only a tiny minority (less than one per cent) of his followers who read them were in the UK. He said this is ‘truly and fundamentally a South Korean case’. He pointed out that the Claimant has made three complaints in Korea (including a criminal case) which have not been taken up by the Korean authorities. He said the Claimant's appeal to the High Korean Prosecution Service had been rejected. He said this was evidence the Claimant regards Korea as the proper venue for his complaint. At [1(8)] he said he has obtained statements from Koreans living in the UK who are aware of the case. He says it is an abuse of process for the Claimant to have a ‘second go’ when, according to the Defendant, what he wrote has been determined in Korea not to be defamatory.
The Claimant's evidence
In summary, the Claimant's position in reply relation to the application in its most recent formulation is as follows:
a. The evidence (including the...
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