Svante Kumlin v Camilla Jonsson
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 11 May 2022 |
| Neutral Citation | [2022] EWHC 1095 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: QB-2020-004091 |
[2022] EWHC 1095 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: QB-2020-004091
Jonathan Price (instructed by TLT LLP) for the Claimants
Greg Callus and Ben Gallop (instructed by RPC) for the Defendants
Hearing dates: 24 – 25 March 2021
Approved Judgment
Introduction
This is a claim for libel. The application before me is brought by the four Defendants. Pursuant to CPR Part 11, they challenge the Court's jurisdiction to try the claim. They say I should decline jurisdiction. The matter is factually and legally complex. The Defendants' application raises a number of issues. In particular, it raises some complex cross-jurisdictional questions relating to claims in libel under EU law. I have full transcripts of the hearing which I have consulted when writing this judgment.
CPR r 11.1 provides:
“(1) A defendant who wishes to –
(a) dispute the court's jurisdiction to try the claim; or
(b) argue that the court should not exercise its jurisdiction
may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.”
The parties
The Claimants
The following is not necessarily agreed but I think is sufficient to provide the generally relevant background.
As pleaded in the Particulars of Claim (PoC), the First Claimant is an entrepreneur, businessman and investor in sustainable and ethical business ventures, resident in Monaco, with business interests in the UK including in the Second Claimant, of which he is the founder, Chairman and Chief Executive Officer. He is a Swedish citizen.
The Second Claimant is a public limited company registered in England and Wales with company number 11776841. Its registered office and corporate headquarters is at 13 Hanover Square, London W1S 1HN. It is the apex company of the Eco Energy World (EEW) Group which employs 13 workers in London, and comprises the following subsidiaries, each of which is an English limited company:
• EEW Eco Energy World UK Holdings Limited (company number 11780412)
• EEW Eco Energy World Development Holdings Limited (company number 11794857)
• EEW Eco Energy World IPP Limited (company number 11794805)
The organisation chart exhibited in SK2 to the First Claimant's first witness statement shows that below these entities sit EEW Eco Energy World Development Holdings One BV (a Dutch company), and EEW Holdings 1 APS (a Danish company). Below these, in turn, sit Special Purpose Vehicles (SPVs) to hold particular assets.
The Second Claimant asserts that by reason of these facts and matters it enjoys a reputation, including in this jurisdiction, and in particular in the financial and energy sectors, where it is well known.
The Defendants
The Fourth Defendant owns and publishes a business news website available worldwide at www.realtid.se (the Website/Realtid).
The First Defendant is the editor-in-chief of the Fourth Defendant.
The Second and Third Defendants are journalists employed or engaged by the Fourth Defendant.
All of the Defendants are Swedish, the First Claimant is Swedish, and all of the publications complained of were written in Swedish. The Defendants say that over 88% of the readership of the Website is in Sweden, as opposed to just 0.85% in the UK, with the balance of the readership being elsewhere.
The publications complained of
The Claimants' case is that between 29 September 2020 and 2 November 2020 the Defendants, or some of them, published or caused to be published on the Website eight articles concerning the Claimants (the Articles). There was further publication via Facebook, Twitter, etc, where links to the Articles were posted.
The Articles in Swedish and the English translation are contained in an Annex to the Particulars of Claim. They are lengthy and I do not propose to set them out verbatim. I will set out the pleaded defamatory meanings later, but for now it suffices to say that the defamatory meanings alleged include that the Claimants were accused of being part of a criminal network involved in so-called ‘ecocrime’, by which members of the network profited from the fraudulent marketing and sale of bogus or valueless supposedly ecologically ethical investments; that as part of this criminal activity they received unlawful payments from associates of a suspected fraudster; that they lied about marketing shares in Sweden; and they sought to dishonestly cover the tracks of their misconduct by deleting material from the internet and issuing false denials, as well as other fraudulent and/or dishonest and/or dubious activity.
The First Claimant says he has suffered serious harm to his reputation as a consequence. The Second Claimant says it has suffered serious harm in the form of serious financial loss. In particular, in April 2020 it signed an agreement (the Pareto mandate) with Pareto Securities Pte Ltd (Pareto), the Singaporean arm of Pareto Securities, a large Nordic investment bank. The object of the mandate was the raising of finance by the Second Claimant in the total sum of around €570 million to fund the acquisition and construction of solar power plants. The Second Claimant says that as a direct result of the Articles, in November 2020 Pareto cancelled the mandate, causing it serious financial loss.
In broad terms the Defendants dispute that any of the Articles has an actionable defamatory meaning, although they accept that two of them were defamatory at common law. They deny either Claimant has suffered serious harm as required by s 1 of the Defamation Act 2013 (DA 2013). I will return to this later.
As to responsibility for publication of the Articles on the Website, the Claimants' case is that:
a. The First and Fourth Defendants are responsible for the publication of all of the Articles;
b. The Second Defendant is responsible for the publication of the First, Second, Fourth, Fifth, Sixth, Seventh, and Eighth Articles; and
c. The Third Defendant is responsible for the publication of the Second, Fourth, Fifth, Sixth, Seventh, and Eighth Articles.
Legal framework
Before turning to the parties' submissions, I need to set out some legal principles. It is common ground that the question of jurisdiction in this case is primarily governed by EU law, notwithstanding Brexit.
Brussels Recast Regulation (BRR)
The BRR is Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast) (OJ L 351, 20 December 2012, pp1–32). Because the UK has left the EU, the BRR no longer has direct effect in domestic law as a matter of EU law. However, because this claim was issued on 20 November 2020, the BRR remains the operative legal framework in domestic law by virtue of the savings provisions in regs 92 and 93 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479) (the Regulations).
Article 4(1) BRR provides that:
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”
This confers general jurisdiction, which is unlimited: in other words, any claim for any remedy can be brought against a defendant in the courts of the Member State where they are domiciled under Article 4(1). The starting point, therefore, in this case, because the Defendants are domiciled in Sweden, is that they should be sued in Sweden.
However, Articles 7–26 provide for derogations from this general rule, which permit a defendant domiciled in one Member State to be sued in the courts of another Member State.
Relevant for present purposes is Article 7(2). This provides that:
“A person domiciled in a Member State may be sued in another Member State:
…
(2) In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
…”
This exception is sometimes referred to in the case law as ‘the special jurisdiction’.
Hence, because the Defendants are domiciled outside England and Wales, this claim can only be brought here on the basis of Article 7(2) as a claim in tort. That is common ground. This requires an examination, in relation to libel, of the principles relating to the concept of the place ‘where the harmful event occurred’.
The meaning of ‘the place where the harmful event occurred or may occur’, in Article 5(3) of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ L 299, 31.12. 1972, p32–42) (in other words, the same language as Article 7(2) BRR), was considered by the ECJ in Handelskwekerij G J Bier BV & Stichsting Reinwater v Mines de Potasse d'Alsace SA [1979] ECC 206. In essence, the Court said the phrase has two limbs: (a) the place where the damage occurred ( locus damni); and (b) the place of the event giving rise to damage ( locus actus).
Bier was considered in the context of defamation in Shevill v Press Alliance SA (Case C-68/93) [1995] 2 AC 18 ( Shevill (ECJ)). It was held the locus actus would almost always overlap with where the publisher was domiciled (ie, the acts giving rise to defamatory publication would generally be co-located with the publisher), so to ensure that Article 5(3) was given some effect, the courts of the locus damni had to have jurisdiction over damage caused by publication in their territory.
Accordingly, under what I will call the ‘rule in Shevill’, a libel claimant can choose either:...
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