Matthew Thomas Parish v Wikimedia Foundation, Inc.

Introduction

This is the determination of the defendant’s application to set aside an order granting the claimant permission to serve the defendant out of the jurisdiction with a claim for libel. The libel claim concerns an article about the claimant published on Wikipedia at the following address: https://en.wikipedia.org/wiki/Matthew_Parish (‘the Wikipedia Page’). The Wikipedia Page, showing the words complained of underlined, is contained in the Appendix to this judgment.

The words complained of all relate to the claimant’s conviction by a criminal court of the canton of Geneva in Switzerland, following a trial in August and September 2021, of an offence of forgery of documents (‘the Forgery Conviction’). On 10 September 2021, he was sentenced to three years’ imprisonment (of which 18 months was suspended), with a three-year probation period. He was also ordered to undergo psychotherapeutic treatment, prohibited from practising law in Switzerland for five years, and ordered to make a compensatory payment of CHF 50,000. On 18 December 2023, the Criminal Appeal and Review Chamber dismissed his appeal against conviction, but partially allowed his appeal against sentence, reducing the custodial element of the sentence to two years’ imprisonment (the whole of which was suspended) (‘the Appeal Decision’).

The application to set aside is brought on the grounds that (i) the claim has no real prospect of success (Ground 1); (ii) England is not clearly the most appropriate forum (Ground 2); and (iii) the claimant failed to comply with the duty of full and frank disclosure (Ground 3).

Ground 1 is based on five sub-grounds, namely: (a) under s.10(1) of the Defamation Act 2013 (‘the 2013 Act), the court has no jurisdiction; (b) the defendant has an unassailable defence pursuant to s.19 of the Electronic Commerce (EC Directive) Regulations 2002 (‘the E-Commerce Regulations’); (c) the claim is time-barred; (d) the claimant’s pursuit of remedies based on publication outside the jurisdiction is an abuse of process; and (e) in light of his (foreign) convictions, the claimant has no real prospect of establishing serious harm to his reputation, or more than nominal damages, or of defeating a defence of truth, and pursuit of the claim is therefore an abuse of process.

Although the defendant put the challenge to the merits of the claim first, I shall address Grounds 2 and 3 before considering Ground 1, to the limited extent necessary in light of my conclusions on the other grounds (see paragraph ‎75 below).

Procedural History

On 29 January 2024, the claimant issued a claim for libel against Wikimedia Foundation Inc (‘WMF’). For himself, he gave an address in Harrogate. For WMF, he gave an address in San Francisco in the United States of America.

Particulars of Claim bearing the same date were attached to the Claim Form. In paragraph 1 of the Particulars of Claim, the claimant describes himself in the following terms:

“The Claimant is a well-known international lawyer resident in England & Wales. He is a British citizen and he is admitted to the roll of solicitors in England and Wales, as well as being called to the Bar by the Honourable Society of Lincoln’s Inn. He is a well-known academic in the spheres of international law, international relations, post-conflict reconstruction, and his works are read both in England & Wales and abroad. Accordingly the Claimant has a reputation in the jurisdiction.”

The claimant describes the defendant as “an entity incorporated and/or registered in the United States of America responsible for publication of the Wikipedia series of websites whose front page is www.wikipedia.org”.

The Particulars of Claim identify the Wikipedia Page and the words complained of (as shown underlined in the Appendix), stating that the words complained of “were and are published on a daily basis, at least since October 2023 and quite possibly much earlier”. Paragraph 6 of the Particulars of Claim states:

“The aforementioned statements are published on the internet to the entire world. … To the best of the Claimant’s understanding anyone with access to the worldwide web (and that includes the greater majority of the world’s population) is able to view this webpage.”

The claimant’s pleaded meaning at paragraph 8 of the Particulars of Claim is that:

“the Claimant is a fraudster; and that he is serving a prison sentence of three years and/or is due to serve a prison sentence of three years”.

In the Particulars of Claim, the primary relief claimed is:

“(1)

Damages for libel; … [and]

(3)

An injunction in terms requiring the Defendant to remove the aforementioned defamatory assertions from any website in its possession, custody or control, and not to suffer the repetition of said defamatory assertions and/or any equivalent defamatory assertions about the Claimant and/or an injunction in such terms as the Court may think fit”.

By an application notice dated 5 March 2024, the claimant sought an order under CPR 6.36 permitting him to serve the Claim Form and Particulars of Claim outside the jurisdiction. The application notice made clear that nobody was required to be served with it (although the claimant had provided the defendant with a courtesy copy), and that the claimant sought determination of the application without a hearing.

The claimant’s application was supported by his first witness statement (‘Parish WS1’), dated 14 February 2024. He stated:

“7.

I believe that England is the proper place to bring this claim, because I am a British citizen resident in the jurisdiction whose reputation has been damaged in the jurisdiction, and there is no better place for the case to be heard. While I may have reputations in other jurisdictions, it is undoubtable that my principle [sic] reputation is in England for the reasons stated in this witness statement and the Particulars of Claim.

…

17.

The third bullet point of paragraph 4 [of the defendant’s email of 14 February 2023] appears to protest that England is not clearly the most appropriate place to pursue these proceedings and that California is instead the most appropriate place. In response to this, the Claimant states the following. (a) The Claimant is resident and domiciled in England. (b) The Claimant is admitted to the roll of solicitors in England. (c) The Claimant is called to the Bar by the Honourable Society of Lincoln’s Inn in England. (d) The Claimant is a Fellow of the Royal Society of Arts in England. (e) The Claimant runs a legal, security and intelligence consultancy business based in England. (f) The Claimant’s family lives in England, including his two elderly parents and his brother. (g) The greater majority of the Claimant's friends and professional contacts are in England. (h) The Claimant has published books in England. (i) The Claimant has published many articles in England. (j) The Claimant has a significant reputation in England. (k) The Claimant is a Fellow of the Chartered Institute of Arbitrators in England. (l) The Claimant was formerly Honorary Professor at the University of Leicester in England. (k) The Claimant maintains commercial and other relations with a variety of businesses NGO’s and charities in England. (l) The Claimant is a British citizen. …

20.

…I do not hold an English solicitor’s practising certificate at the current juncture…

21.

As to the seventh bullet point, while it is true that I am in Ukraine at the current time I reside in England and I am on the electoral roll in Harrogate and Knaresborough constituency. The fact that a person travels and works abroad frequently does not mean that they do not reside in a country. My current physical location is not relevant to the question of whether this Court is properly seized of jurisdiction. It is true that I have a reputation in Ukraine but that is not the only or even the predominant place where I have a reputation and the predominant place is England for the reasons explained above.”

At paragraph 23 of Parish WS1, the claimant again repeated that his “domicile and residence” is in England.

On 21 March 2024, the claimant submitted an appointment form in which he certified that “this is a legitimate without notice application for which no notice to the Respondent is required”, albeit he had notified the defendant of the application. This accorded with the normal practice for determination of such applications without notice to the respondent: see Soriano v Forensic News LLC [2021] EWCA Civ 1952 [2022] QB 533, Warby LJ, [7]

On 22 March 2024, Master Gidden granted the claimant permission to serve the claim form on the defendant, in accordance with CPR 6.40(3), at the defendant’s address in San Francisco. Paragraph 3 of Master Gidden’s order provided that any application to amend or set aside the order was required to be made within 14 days of service of the order. On 4 April 2024, the parties agreed to extend the deadline in paragraph 3 to 3 May 2024.

The claimant served the Claim Form and Particulars of Claim. On 18 April 2024 the defendant filed an acknowledgment of service contesting jurisdiction.

On 2 May 2024, the defendant filed an application to set aside Master Gidden’s order and to contest the jurisdiction of the court to hear the claim. The application was supported by the first witness statement of Bryony Hurst (‘Hurst WS1’), the defendant’s solicitor, and the first witness statement of Brian Choo (‘Choo WS1’), an Intellectual Property and Litigation Case Specialist within the WMF legal department, both dated 2 May 2024. The claimant filed two witness statements, on his own behalf, in response to the defendant’s application, dated 7 and 16 May 2024 (‘Parish WS2’ and ‘Parish WS3’).

I gave directions for the hearing of the defendant’s application by an order dated 29 May 2024, with permission to the parties to apply for a variation. On 31 May 2024, the defendant applied to vary the directions to permit both parties to serve further evidence. By an order dated 7 June 2024, Collins Rice J gave the claimant permission to file any further reply evidence by no later than 21 days before the hearing, and the defendant permission to file responsive evidence by no later than 10 days before the hearing.

The claimant did not file any further reply evidence. The defendant filed two responsive statements dated 27 June 2024, made by Philip Sherrell, the defendant’s solicitor (‘Sherrell WS1’), and Mr Choo (‘Choo WS2’).

Procedural objection to the defendant’s application

The claimant raised a procedural objection to the application, contending that Master Gidden’s order was not made on a without notice basis, and therefore the right contained in CPR 23.10 to apply to have the order set aside or varied does not apply. In support of this contention the claimant relies on the fact that he sent a copy of his application to the defendant by email, and the clerk to Master Gidden provided a further opportunity to comment when inviting the parties either to file a consent order or a Master’s Appointment Form.

The claimant’s contention is misconceived. Sending the application by email to the defendant did not constitute service of the application. At that stage, he had no permission to serve any document on the defendant out of the jurisdiction (CPR 6.38). Nor would service by email have complied with CPR 6.40. As the claimant himself recognised in his application notice and the Master’s Appointment Form, this application was made, formally, without notice, albeit he had provided the defendant with a copy of the application as a courtesy. Master Gidden duly determined the application on a without notice basis, adopting the “standard procedural route” approved by the Court of Appeal in Soriano, [7], [56]. CPR 23.10 clearly applied.

In any event, the defendant had a right to apply to set aside Master Gidden’s order in accordance with the express terms of paragraph 3 of that order. Accordingly, the claimant’s procedural objection has no merit.

The law on permission to serve out

The general legal principles are well established. As explained by Warby LJ in Soriano at [11] to [12]:

“11.

… The court can only give permission to serve a claim on a defendant outside the jurisdiction if it meets three conditions.

(1)

The first is that the claim is of a kind that falls within one of the ‘gateways’ set out in CPR PD 6B (‘the Gateway Requirement’). On this question, the claimant has to satisfy the Court that he has a good arguable case or, as it is sometimes put, the better of the argument. This connotes ‘more than a serious issue to be tried or a real prospect of success but not as much as the balance of probabilities’: AstraZeneca UK Ltd v Albemarle International Corpn [2011] 1 All ER (Comm) 510, para 24 (Hamblen J).

(2)

Secondly, the claimant must satisfy the court that he has a real as opposed to a fanciful prospect of success on the claim (‘the Merits Test’). One way this has been put is that the claimant has to show that any ‘reverse’ summary judgment application would fail.

(3)

Thirdly, ‘The court will not give permission unless it is satisfied that England and Wales is the proper place in which to bring the claim’: CPR 6.37(3) (‘the Forum Test’). This is normally resolved by reference to the ‘Spiliada’ principles as to the appropriate forum or (in the classic language) forum conveniens for the trial of the claim: see Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460, 478-480 (Lord Goff of Chieveley). The question is whether this jurisdiction is ‘clearly or distinctly’ the most appropriate. The appropriate forum is the one in which the case ‘may most suitably be tried for the interests of all the parties and the ends of justice’. The first thing to consider is what is the ‘natural forum’, namely the one ‘with which the action has the most real and substantial connection’. If the court concludes that another forum is as suitable or more suitable than England, it will normally refuse permission. Again, the issue is not determined on the balance of probabilities; the claimant's task is to show that he has the better of the argument on the point. If he fails to do so, the application will be dismissed.

12.

A claimant seeking permission to serve outside the jurisdiction always bears the legal burden of proof on all these issues. That is so whether the matter is being considered on an application by the claimant at the initial, without-notice stage, or at the hearing of a subsequent application by the defendant to set aside an order permitting service outside the jurisdiction. But a defendant challenging such an order needs to identify some other forum which does have jurisdiction; and even the initial application requires there to be another candidate with the requisite jurisdiction: UnwiredPlanet International Ltd v Huawei Technologies (UK) Ltd [2020] Bus LR 2422, paras 96-97. Where the claimant’s contention that the case is a proper one for service out is disputed by the defendant on a specific ground the defendant bears an evidential burden in relation to that ground: see AstraZeneca (above) at paras 33-39 (Hamblen J).”

Where a claim is brought in defamation against a party not domiciled within the jurisdiction, the Forum Test is modified by section 9 of the 2013 Act which provides, so far as material:

“(1)

This section applies to an action for defamation against a person who is not domiciled in the United Kingdom.

(2)

A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

(3)

The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.”

In Soriano, the Court of Appeal held, at [19] and [43], that s.9 should be construed as modifying the forum conveniens regime in two respects, namely:

“(a)

by requiring the court to answer the question of which jurisdiction is ‘clearly the most appropriate’ by considering ‘all the places in which the statement complained of has been published’ and (b) by treating any statement that conveys substantially the same imputation as if it were a ‘statement complained of’.

At [44], Warby LJ observed that:

“These are important modifications. They mean that claimants who are better known outside this jurisdiction, or who have global reputations, are likely to find it hard to show that this is ‘clearly the most appropriate’ jurisdiction in which to sue for an international libel.”

At [21] Warby LJ summarised some “uncontroversial propositions” that emerge from the cases in which s.9 has been considered:

“(1)

The claimant bears the burden of satisfying the court that England is the most appropriate place in which to bring the claim: Wright v Ver (CA), [[2020] 1 WLR 3913], para 60.

(2)

When determining that question, the court must consider all the ‘places’, which in this context means jurisdictions, in which there has been publication of ‘the statement complained of’, giving that term the expanded meaning identified in section 9(3): Ahuja [[2016] 1 WLR 1414], paras 31, 41; Wright v Ver (CA), para 61.

(3)

Relevant factors for consideration will include the best evidence available to show what all those places are; the number of times the statement has been published in each jurisdiction; and the amount of damage to the claimant’s reputation in England and Wales compared with elsewhere: Ahuja, para 31; Wright v Ver (CA), paras 61-63.

(4)

Other relevant factors are likely to include the availability of fair judicial processes in the other jurisdictions in which publication occurred, the available remedies from the courts of the other jurisdictions, the costs of pursuing proceedings in each possible jurisdiction, other factors that might impact on access to justice – for example language barriers – and the location of likely witnesses, as well as the relative expense of suing in different jurisdictions; Ahuja, para 31; Wright v Ver (CA), paras 64-65.

(5)

This list of factors is non-exhaustive because the relevant multifactorial question to be answered by the court is whether it can be shown that England and Wales is clearly the most appropriate jurisdiction in which to bring the claim. This will be fact-specific, but it is likely to require the court to make the best assessment that it can on the evidence whether any competing jurisdiction is an appropriate place to bring the claim: Wright v Ver (CA), para 65.”

The Gateway Requirement

Rule 6.36 of the Civil Procedure Rules provides:

“In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply.”

The grounds specified in paragraph 3.1 of PD6B include where (i) a claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction (subparagraph (2)) and (ii) a claim is made in tort where damage was sustained, or will be sustained, within the jurisdiction (subparagraph 9(a)).

The claimant’s skeleton argument focused principally on establishing that the Gateway Requirement is met. However, the defendant had not contended otherwise, and Counsel for the defendant, Mr Helme, confirmed in his oral submissions that, for the purposes of this application, the defendant concedes that the Gateway Requirement is met. The claimant clearly has a good arguable case that his claim meets the Gateway Requirement on either of those bases. He has sought an injunction to restrain publication of the Wikipedia Page worldwide, including in this jurisdiction. He has brought a claim in tort in respect of damage allegedly sustained inter alia in this jurisdiction, through publication of the Wikipedia Page here (and elsewhere).

The claimant contends that meeting the Gateway Requirement is sufficient to establish that the court has jurisdiction, and to dispose of the defendant’s application. However, he has misunderstood the law. As stated above, the Gateway Requirement is one of three conditions that must be met. He also has to satisfy the Merits Test and the Forum Test: see Soriano (above); CPR 6.37(1)(b) and (3); and White Book 2024, 6.37.13. The rationale underlying the Merits Test is that the court should not subject a foreign litigant to proceedings which the defendant would be entitled to have summarily dismissed: White Book 2024, 6.37.15. As regards the Forum Test, CPR 6.37(3) provides that the court will not give permission unless satisfied that England and Wales is “the proper place in which to bring the claim”, flagging up “sophisticated conflict of law rules, particularly as regards the doctrine of forum non conveniens, which would come into play, whether or not their existence was noted and acknowledged in r.6.37”: White Book 2024, 6.37.5.

Ground 2: The Forum Test

The claimant must show that England is clearly the most appropriate forum for this claim. The court must consider whether it is the natural forum, that is the one with which the action has the most real and substantial connection. As Mr Helme acknowledges, a defendant challenging an order granting permission to serve out of the jurisdiction needs to identify some other potential candidate jurisdiction: Soriano, [12].

In a letter dated 13 February 2024 (sent by email on 14 February), the defendant suggested that “the action could alternatively be brought in California, where we are headquartered”. In his first statement, the claimant responded to that suggestion, stating that he had visited California only once, for five days, about two decades ago; he has never worked in California or for a Californian entity; he has never had an address in California; and he has no reputation in California, knowing only one person from California (Parish WS1, §17). The defendant has not pursued the contention that California is a more suitable jurisdiction.

In the letter dated 13 February 2024, the defendant noted that it appears the claimant does not currently practise law in this jurisdiction, and that it was unclear whether he resides in England. The defendant informed the claimant that:

“for the purposes of any application, it will be necessary for you to specify with precision the nature of your domicile and residence, and your connections with each relevant jurisdiction.”

As set out in paragraph ‎13 above, in his first statement, the claimant gave evidence of his connections to this jurisdiction, and repeatedly asserted that he is resident in England, albeit he acknowledged, “I am in Ukraine at the current time” (Parish WS1, §21).

Following service of the claim, the defendant has investigated the position further, primarily by reference to extensive documentary evidence made publicly available by the claimant himself (e.g. in the form of blogposts, his LinkedIn page, posts on his X (formerly Twitter) account and his (currently inactive) personal website). In light of that material, the alternative jurisdiction identified by the defendant in this application, and in particular in the first statement of Ms Hurst and exhibits thereto, is Switzerland.

In both his second and third statements, the claimant described this evidence as “biographical surmise about me”, emphasising that “none of this evidence is necessarily accepted but there is no value in responding to it because it is not relevant to the application the Defendant has made” (Parish WS2, §2; Parish WS3, §2). As is plain from the legal principles identified above, the contention that evidence of the claimant’s connections to other jurisdictions in which the words complained of have been published is irrelevant was wrong.

In his first statement, made in support of his without notice application, the claimant made no reference to any connections he has with Switzerland (or with Serbia). In his two statements in reply to the defendant’s application, and supporting evidence, the claimant has, again, given no information about his connections to Switzerland (or Serbia). He has reiterated that he is resident in this jurisdiction, asserting that there is no reason not to take his word for it, and he has provided a letter from North Yorkshire County Council electoral services dated 26 July 2023 that confirms he is registered to vote at the address provided on the Claim Form (Parish WS2, §14). In his skeleton argument, the claimant made submissions as to the unsuitability of California and Ukraine as alternative jurisdictions (although no assertion to the contrary was pursued in the defendant’s application, evidence or skeleton argument), but still provided no response to the defendant’s submission that England is not clearly a more appropriate jurisdiction in which to bring this claim than Switzerland.

On the evidence before me, I make the following findings of fact. The claimant was born in England. He is a British citizen. He is now 49 years old: Appeal Decision. He went to school in England. He was an undergraduate at the University of Cambridge for three years from 1993 to 1996 and was awarded an MA in Philosophy by that institution: LinkedIn and Spy’s Diary: Essays from a Maximum Security Swiss Prison by Matthew Parish (‘Spy’s Diary’). In Spy’s Diary, the claimant stated that he then began studying at law school in London but “loathed this experience” so “resigned” and went to study at the University of Chicago Law School. The dates of his attendance at the University of Chicago are hazy, but it appears that he studied there for an LLM and then JSD (Doctor of Jurisprudence, International Law and Legal Studies).

According to the Appeal Decision, prior to 2008, “he held various positions in Cairo, Luxembourg, London, Washington and Bosnia-Herzegovina”. It appears that from March to December 2000 he was a stagiaire at the Court of Justice of the European Union in Luxembourg; from 2003-2005 he worked as a legal adviser for the International Bank for Reconstruction & Development in Washington DC; and from 2005 to 2007 he worked for the Office of the High Representative in Bosnia: LinkedIn. He has been a New York attorney since 2005: LinkedIn and The Paladins Organisation (‘the Paladins’) website.

The claimant was called to the Bar by Lincoln’s Inn on 27 July 2000 and admitted to the Roll of Solicitors in September 2000. But there is no evidence that he has ever held a practising certificate enabling him to work in this jurisdiction as a practising barrister or solicitor. If he spent any time prior to 2003 working in London, it is unclear where or when. In any event, the evidence is compelling that he was the author of the blogpost entitled “Field Agents”, dated 11 March 2023, who wrote: “I have been living abroad from my country nonstop since 2003”; and that he has not lived in England (or Wales) for over 20 years.

In 2008, the claimant moved to Switzerland. He married a Serbian woman, and they had two children in 2010 and 2013: Spy’s Diary; cantonal decision, Appeal Decision; LinkedIn. The claimant worked for Akin Gump Strauss Hauer & Field LLP in Geneva from January 2008 until November 2011, when he was taken on as a partner at Holman Fenwick Willan in Geneva. At the latter firm, he was described as specialising in “international dispute resolution, including cross-border litigation, international trade, foreign investment, emerging markets and public international law”.

In 2014, the claimant founded Gentium Law, a firm based in Geneva. He worked actively for Gentium Law until the date of his first arrest, on 29 May 2018: Appeal Decision. Gentium Law was struck off the Geneva trade register in 2020: Hurst WS1, §84.3.3. In 2018, the claimant’s webpage described him as “an international lawyer” and a “well-known lawyer within Switzerland, his adoptive country”, noting that he “has been named as one of the 300 most influential people in Switzerland by Bilan magazine”. In Spy’s Diary, he describes himself as “one of Geneva’s best-known international lawyers”.

The claimant was held on remand in Champ Dollon prison in Switzerland from 29 May 2018 until 21 June 2018. At a bail hearing, the claimant’s counsel contended that there was no risk of him fleeing “given my overwhelming connections with Geneva”, and the judge “disagreed with the Prosecutor that I was a flight risk (I have property, a permanent Swiss residence permit, and two children in school in Geneva, and my entire life is in Geneva)”: Spy’s Diary. The claimant was also an adjunct lecturer at the University of Geneva from 2008 until 2022: LinkedIn.

On 22 February 2021, the claimant was sentenced by a criminal court in Switzerland to one year imprisonment, suspended for three years, and a fine was imposed, for “offences of slander (art.174 al.1 CP), insubordination to a decision of the authorities (art.292 CP), attempted coercion (art.181 CP) and defamation (art.173 CP)”: Appeal Decision. This conviction is reflected in [13]-[14] of the Wikipedia Page (see Appendix), about which no complaint is made.

On 11 June 2021, the claimant was convicted by a criminal court in Switzerland of an offence of “breach of a maintenance obligation (art. 217 al. 1 CP)” and a fine was imposed, suspended for three years. On 10 September 2021, he was convicted in Switzerland of an offence of “tax evasion (art. 175 LIFD”: Appeal Decision. Neither of these convictions are reported on the Wikipedia Page. In his oral submissions, the claimant said he was unaware of them until he saw the Appeal Decision.

On 15 July 2021, the claimant informed the Investigatory Powers Tribunal (‘IPT’) that “his formal place of residence is Geneva, Switzerland”. However, in the same document, he stated that he and his (then) partner (a Ukrainian woman) moved to Belgrade, Serbia, in February 2019, where he has a property which is held in trust for his children. However, a Swiss judgment dated 8 December 2023 (lifting the probation assistance ordered on 22 February 2021), indicates he only left Switzerland on 30 April 2020. The latter date is consistent with the claimant’s oral submissions, before this court, in which he said that he ceased to be resident in Switzerland in 2020. In any event, it is clear that he lived and worked in Switzerland, his “adoptive country”, for more than a decade. He had (and there is no evidence that he has lost) a permanent residence permit. His children still live in Switzerland with his (now) ex-wife. The Appeal Decision (issued less than nine months ago) noted that the claimant “owns a property in Chambesy, purchased in 2008, which he estimates to be worth CHF 1,500,000”. There is no evidence of any change regarding his ownership of that property in Geneva.

In March 2020, the claimant became the Managing Partner of the Paladins. Although the address for postal correspondence given for the Paladins is in London, the address “appears to be a serviced office / co-working space available to rent. The London Address is also listed online as providing registered office services for a fee of £39 per year”: Hurst WS1, §86. There is no evidence that the claimant has worked for the Paladins from the London address. When job advertisements were advertised on the Paladins website, notice was given that interviews would take place in Belgrade, Serbia and Riga, Latvia.

Following his move to Serbia in (or about) 2020, the claimant appears to have lived there until at least December 2022: Hurst WS1, §94. He spent some time travelling in Thailand, Cambodia, and Nepal during 2023, before moving to Ukraine about a year ago, where he continues to live and work as the Executive Chairman for the Foundation for Development in Lviv and as Editor in Chief of the Lviv Herald. In Fragments from a War Diary Part #266, he described obtaining a residence permit and becoming “a resident of Ukraine”.

As Ms Hurst acknowledges (Hurst WS1, §85), the LinkedIn page indicates that the claimant was an Honorary Professor at the University of Leicester law school between 2016 and November 2022, but there is no evidence that this role (which overlapped with the claimant’s work abroad) involved the claimant undertaking any work in England. It also indicates that from September 2008 (again, overlapping with his work abroad), he had the role of Deployment Civil Expert at the Stabilisation Unit in the (then) Department for International Development. In respect of the latter role, too, there is no evidence as to the extent, if any, that it involved the claimant undertaking work in England.

As I have said, following a trial, on 10 September 2021, the claimant was sentenced for the Forgery Conviction. On appeal, on 18 December 2023, his conviction was upheld but the custodial element of his sentence was reduced to two years’ imprisonment (suspended): see paragraph ‎2 above. The claimant was represented at the trial and the appeal hearing, and the court considered his written declarations, but he chose not to attend: Appeal Decision. The words complained of concern the Forgery Conviction.

The address in England that the claimant has given on the Claim Form is his parents’ address, as he acknowledged during the hearing. He does not live there. The letter confirming he has been added to the electoral roll does not prove otherwise. The North Yorkshire Council website states that there is no requirement to live in the UK in order to register to vote and generally there is no requirement for an individual to provide proof that they live in the UK to register to vote at a UK address: Sherrell WS1, §14. The only reference within the evidence to the claimant being in England between 2003 and 2024 at all is from a blogpost dated 21 December 2023 on the Paladins website, in which the claimant states that he had “come back for a couple of weeks at Christmas” to visit his “elderly parents”. The post makes it clear that he was “going back to Ukraine, in slightly more than a week”: Hurst WS1, §103. The claimant attended the hearing in July, but he had said in correspondence that travelling to England was “complicated”.

The claimant describes himself on his X profile as a “Famous lawyer, scholar of international relations; Managing Partner, the Paladins; Young Global leader, WEF; one of the 300 most influential people in Switzerland”. He gives his location as “England, Switzerland, E Europe”. In his oral submissions, the claimant suggested that this profile is out-of-date. However, he has updated it since he moved from Switzerland to provide a link to the Paladins and an image of the Ukrainian flag, as well as posting his Fragments of a War Diary. On the Paladins website, he is described as “one of Europe’s best-known international lawyers”. In his Particulars of Claim, he describes himself as a “well-known international lawyer” and “well-known academic”.

In his oral submissions, the claimant contended that in Switzerland he cannot afford representation, and his language skills are insufficient to represent himself. He said that he knows virtually nothing about Swiss civil litigation. There is no evidence to that effect. On the contrary, the evidence is that he was a member of the Swiss Bar, worked for Swiss law firms in Geneva for more than a decade (not only in arbitration, but in a variety of fields: paragraph ‎42 above), and owns a property in Geneva. The language of the CJEU, where he has also spent time, is French. On LinkedIn, his French language skills are described as “Professional working”, and on the Paladins website it states that he speaks six languages. In contrast, although English is his native language, there is no evidence that he has ever studied (save for a brief abortive period: paragraph ‎39 above) or practised law in this jurisdiction. The claimant also asserted in his oral submissions that he is afraid to return to Switzerland. However, there is no evidence that he has such a subjective fear, still less that there is any objective basis for it.

In his oral submissions, the claimant also asserted that he wishes to return to live and work in this jurisdiction. Again, that is not a matter that is in evidence. In any event, my focus is on the current position.

As the claimant was born, brought up and educated in this jurisdiction and has family and friends here, I accept he has a reputation in this jurisdiction to protect. I have also borne in mind that publication of the (English language) Wikipedia Page in the 12 months prior to issue of proceedings was higher in England than in Switzerland. However, as Sir Michael Tugendhat observed in Ahuja v Politika Novine I Magazini DOO [2015] EWHC 3380 (QB) [2016] 1 WLR 1414, at [31], “the extent of publication in different jurisdictions may have little bearing on where the claimant’s reputation mainly lies and on where that reputation has been most seriously damaged”.

I am not persuaded that England is clearly the most appropriate forum for the claim. First, on the evidence, it is plain that the claimant does not live in England. I reject his evidence that he is resident or domiciled here as incompatible with the wealth of evidence, mostly in his own words, to the contrary. He has lived, studied, and worked abroad for most of the last 27 years, and the entirety of the period since 2003. Much of the claimant’s professional life has been spent living and working in Switzerland, where his children continue to live and attend school. Although his professional reputation may be global, it is clear that he is most well-known in Switzerland.

Secondly, the facts underlying the statements complained of have nothing to do with England. They relate to the claimant’s conduct in Switzerland and decisions of the Swiss criminal courts. If the truth of those statements is in issue, as appears to be the case, all the material documents and witnesses are likely to be in Switzerland. In his oral submissions, the claimant suggested he was tried in his absence because Switzerland could not extradite him, whereas the Appeal Decision indicates the reason he gave for choosing not to attend, and to be represented in his absence, was the cost. In respect of issues such as this, the material documents will be in Switzerland. In addition, insofar as the defendant relies on other convictions to show that the words complained of have not damaged the claimant’s reputation, each of those convictions also concerns the claimant’s conduct in Switzerland.

Thirdly, all the material documents are likely to be written in French rather than English. Official translations would be required if the claim proceeds in England and would be expensive.

Fourthly, having practised law for much of his professional life in Switzerland, and having instructed lawyers in Switzerland in relation to the criminal proceedings, the claimant is at least as well able to pursue proceedings in Switzerland as in this jurisdiction, where he does not appear to have practised. As I have said, I reject the contention that the language of the Swiss courts would present a barrier for him. The defendant is a substantial organisation. There is nothing to indicate it would have any more difficulty instructing lawyers in Switzerland than in this jurisdiction.

Fifthly, the claimant has complained that it is “complicated” to travel to London for a hearing. The defendant is based in the United States. There is no evidence that travelling to Switzerland would present any greater practical difficulty for either party than travelling to London.

I conclude that the claimant has failed to satisfy the Forum Test. Accordingly, irrespective of the merits of the other grounds, the order for service out of the jurisdiction falls to be set aside.

Ground 3: Material non-disclosure

A concise summary of the relevant general principles was set out by Warby J in Sloutsker v Romanova [2015] EWHC 545 (QB) [2015] 2 Costs LR 321 at [51]:

“i)

An applicant for permission to serve proceedings outside the jurisdiction is under the duty of full and frank disclosure which applies on all applications without notice.

ii)

The duty requires the applicant to make a full and fair disclosure of those facts which it is material for the court to know: Brinks Mat v Elcombe [1988] 1 WLR 1350, 1356 (1) and (2) (Ralph Gibson LJ). Put another way, disclosure should be made of ‘any matter, which, if the other party were represented, that party would wish the court to be aware of’: ABCI v Banque Franco-Tunisienne [1996] 1 Lloyd's Rep 485, 489 (Waller J).

iii)

Non-disclosure of material facts on an application made without notice may lead to the setting aside of the order obtained, without examination of the merits. It is important to uphold the requirement of full and frank disclosure.

iv)

But the court has a discretion to set aside or to continue the order. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues that were to be decided. The answer to the question whether the non-disclosure was innocent is an important, though not decisive, consideration. See Brinks Mat at pp1357 (6) and (7) and 1358 (Balcombe LJ).

v)

In the context of permission for service outside the jurisdiction the court has a discretion to set aside the order for service and require a fresh application, or to treat the claim form as validly served and deal with the non-disclosure by a costs order: NML Capital Ltd v Republic of Argentina [2011] UKSC 31, [2011] 2 AC 495, [136] (Lord Collins).”

I have also borne in mind the fuller summary of the principles given by Carr J in Tugushev v Orlov (No. 2) [2019] EWHC 2031 (Comm) at [7], as approved by the Court of Appeal in Derma Med Ltd v Ally [2024] EWCA Civ 175 at [29]. As the Court of Appeal observed, those principles are of general application.

In short, the defendant submits that in the claimant’s without notice application to serve out of the jurisdiction, there were three clear breaches of the duty of full and frank disclosure. First, the claimant repeatedly stated, without more, that he is resident in England. Secondly, he told the court nothing about his life in Switzerland or his convictions. Thirdly, the defendant expressly requested that the claimant put his letter of 16 February 2022 before the Master, and he did not do so.

The claimant’s responses are: first, that it was not a without notice hearing as he had given the defendant notice; secondly, he maintains that he is resident in England and that this is his country of domicile in every material sense; and thirdly, the evidence which the defendant contends should have been put before the Master was irrelevant.

I have already rejected the contention that the claimant’s application to serve out of the jurisdiction was not made without notice: paragraphs ‎20-‎21 above. The claimant had a duty to make full and accurate disclosure of all material facts i.e. those which it was material for the Master to know in dealing with the application. The claimant was required to draw attention to evidence which he could reasonably anticipate the absent party would wish to rely on.

Anticipating what the defendant would wish to rely on was easy, as the defendant had expressly questioned, in the letter dated 13 February 2024, whether the claimant resides in England and practises law in this jurisdiction. The defendant had asked the claimant, in his application, to “specify with precision the nature of your domicile and residence, and your connections with each relevant jurisdiction”, making clear that the onus was on the claimant to satisfy the court that “of all the places in which the statement complained of is published”, this jurisdiction is clearly the most appropriate place to bring the claim.

Residence is an ordinary English word which means “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place”: HMRC v Grace [2008] EWHC 2708 (Ch), [3] (Lewison J) (citing Levene v Commissioners of Inland Revenue [1928] AC 217, 222). It is dependent on an analysis of the facts. It should, and in my view would, have been obvious to the claimant that the fact that he has not lived or worked in England for the past two decades is highly material in considering his connections to this jurisdiction, and whether he is, as he claims, resident here. Yet, the claimant repeatedly asserted that he is resident in England without disclosing that he has lived and worked abroad since 2003, and the address in England that he provided is his parents’ address.

Switzerland is one of the places in which the statement complained of was published. The claimant was well aware of the strength of his connections to Switzerland, and the centrality of the Swiss Forgery Conviction to his claim, yet he disclosed nothing of the personal and professional life he led in Switzerland for more than a decade. He disclosed that his parents and brother live in England yet said nothing of the fact that his school-age children live in Switzerland. Indeed, he has not mentioned Switzerland in any of his evidence.

In an email to the claimant sent on 4 March 2022, the defendant stated:

“Should you proceed with your application, please ensure that our email of February 14, 2024 [i.e. the letter dated 13 February, sent by email on 14 February] and its attachments are placed in front of the judge in full as requested (rather than just being quoted in your witness statement with the attachments omitted).” (Emphasis added.)

The claimant did not do as the defendant asked. A substantial part of the letter dated 13 February 2024 was quoted in the claimant’s first statement, but the letter and attachments were not put before Master Gidden. Those attachments included the claimant’s letter of 16 February 2022 threatening to bring libel proceedings. In that letter, the claimant stated that in “November / December 2021” defamatory amendments were made to his Wikipedia Page and set out the content of those statements. The defendant relied on that letter in support of the contention that the libel claim is time-barred, as well as to demonstrate that the claimant understands how to make a Norwich Pharmacal application, which the defendant submits supports its case that it is “reasonably practicable” for him to bring an action against the author, editor or publisher, such that the defence in s.10(1) of the 2013 Act applies.

Irrespective of the claimant’s view of the merits of those arguments, he had been asked to put his letter of 16 February 2022 before the court when making his without notice application to serve out, and there is no excuse for his failure to do so. It is hard to see how this failure could be inadvertent, given the defendant’s clear and express request.

I agree with the defendant that these are egregious breaches of the duty of full and frank disclosure. In my judgment the non-disclosure of the fact that the claimant has lived and worked abroad for the past two decades and of the claimant’s extensive connections with Switzerland resulted in the court being misled. The true position is completely different to that presented by the claimant to the court, and it was highly relevant to the determination of the Forum Test. In addition, those breaches, together with the failure to put the 16 February 2022 letter before Master Gidden, were relevant to the determination of the Merits Test. This is not a case in which the claimant has explained or apologised for his failure to comply with the duty of full and frank disclosure. I have already found that permission to serve out should be set aside as England is not clearly the most appropriate jurisdiction in which to bring the claim. But I also conclude that the highly material non-disclosures by the claimant would, independently, have required the order to be set aside.

Ground 1: Merits Test

As I have already concluded that the order must be set aside on two grounds, it is unnecessary to deal with each of the defendant’s five sub-grounds concerning the merits of the claim. It is sufficient, in my view, to address limitation. For the avoidance of doubt, this does not indicate that I have, or would have, rejected each of the other sub-grounds. It is simply unnecessary, in my view, to lengthen this judgment by addressing further sub-grounds in circumstances where the decision would have no impact on the outcome.

An action for defamation must be commenced within one year from the date of publication: s.4A of the Limitation Act 1980. This is subject to the court’s power to disapply the s.4A time limit if it appears to be “equitable to allow an action to proceed”: s.32A Limitation Act 1980.

Section 8 of the 2013 Act introduced the “single publication rule”:

“(1)

This section applies if a person—

(a)

publishes a statement to the public (“the first publication”), and

(b)

subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same.

(2)

In subsection (1) “publication to the public” includes publication to a section of the public.

(3)

For the purposes of section 4A of the Limitation Act 1980 (time limit for actions for defamation etc) any cause of action against the person for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication.

(4)

This section does not apply in relation to the subsequent publication if the manner of that publication is materially different from the manner of the first publication.

(5)

In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the matters to which the court may have regard include (amongst other matters)—

(a)

the level of prominence that a statement is given;

(b)

the extent of the subsequent publication.

(6)

Where this section applies—

(a)

it does not affect the court's discretion under section 32A of the Limitation Act 1980 (discretionary exclusion of time limit for actions for defamation etc), and

(b)

the reference in subsection (1)(a) of that section to the operation of section 4A of that Act is a reference to the operation of section 4A together with this section.”

(Emphasis added.)

As Lord Sumption JSC observed in Lachaux v Independent Print Ltd [2019] UKSC 27, [2020] AC 612, at [18]:

“The object of this provision is to deprive claimants of the right to sue on a further publication by the same person of substantially the same defamatory statement, more than a year after the first publication. They must sue on the first publication or run the risk of being time-barred.”

The defendant submits that the “first publication” for the purposes of section 8 is the 10 January 2022 version of the Wikipedia Page (‘10 January Wikipedia Page’) in respect of which the claimant threatened defamation proceedings in his letter of 16 February 2022. The claim was issued on 29 January 2024. It is therefore time-barred.

The 10 January Wikipedia Page was published to the public for the purposes of section 8(1)(a) and 8(2). The manner of publication of the two versions was manifestly not “materially different” for the purposes of section 8(4). I agree with Mr Helme’s submission that this is a paradigm example of two publications made in the same manner. The publications are two versions of the same webpage: they were published in precisely the same manner to the same extent and with the same prominence.

The question is whether the two statements are “substantially the same”. The relevant differences between the two versions of the Wikipedia Page are shown in bold in the table below:

Both versions of the Wikipedia Page refer to the conviction, the three-year prison sentence, and the ban on practising law in Switzerland. In the 10 January Wikipedia Page the arbitration is described as “fake”, whereas in the later version it is described as “fraudulent”. However, I agree with the defendant that in context this distinction is without substance. The gravamen of the offence, and the resulting sentence and ban, is precisely the same. In my judgment, for the purposes of s.8(1)(b) of the 2013 Act, the Wikipedia Page on which the claimant has sued is substantially the same as the 10 January Wikipedia Page.

Indeed, the claimant did not dispute that the two versions were substantially the same. He complained that he had repeatedly removed defamatory material (himself, and then by engaging an IT specialist company), but the defendant’s “agents” “promptly reverted the deletions and republished the defamatory materials”. The claimant’s complaint is that the defendant “keeps re-publishing the same materials over and over again”: Parish WS1, §15 (emphasis added).

The claimant’s argument is not that the 10 January Wikipedia Page is not substantially the same. Rather, he contends that each time the defendant “causes the re-publication of the same material … the statute of limitations re-begins every time”: Parish WS1, §15.

The claimant’s submission is bad in law. It ignores the effect of s.8 of the 2013 Act. The period for which the first publication was published prior to removal may, of course, be relevant in considering the manner of publication in accordance with s.8(5). But as I have said, it is clear that the manner of publication of the two versions of the Wikipedia Page was not materially different.

In his first statement, the claimant said that he “would and to the extent necessary now does apply for an extension of said time limit”: Parish WS1, §14. However, he has put forward no reason for contending that it would be equitable to disapply the s.4A limitation period. He first threatened libel proceedings on 16 February 2022, and yet he issued this claim nearly two years later i.e. just short of a year out of time. That is a long delay in the context of a one-year limitation period, imposed in recognition of the fact that normally a person whose name has been traduced can be expected to pursue legal redress promptly and energetically: see Gatley on Libel and Slander, 13^th ed., 20-009.

The fact that the claimant occasionally, momentarily, achieved the outcome he sought by editing the Wikipedia Page (himself or with the help of others) does not excuse the long delay. On each occasion, Wikipedia users (who are not agents of WMF) rapidly reversed the claimant’s amendments, as he failed to satisfy them that the deleted words were untrue. The claimant’s mistaken belief that a person or persons using the name “Brendan Conway”, who purported to agree to delete the words complained of, represented WMF was corrected without delay by the defendant: Choo WS2, §37. That is “the pseudonym of an unknown person or persons who has/have been impersonating a Wikipedia administrator for a number of years”, and who is not affiliated in any way with WMF: Choo WS3 §36. His mistaken belief does not explain the length of the delay and would not render it equitable to grant an extension.

In my judgment, there is no real prospect of the claimant defeating a defence of limitation in relation to the claim for libel. It is well established that an applicable limitation defence means that there is no serious issue to be tried. Accordingly, the order should also be set aside on the additional basis that it fails the Merits Test.

Conclusion

The order granting the claimant permission to serve the claim on the defendant out of the jurisdiction falls to be set aside on each of the following grounds: (i) the court is not satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement; (ii) the claimant committed egregious breaches of the duty of full and frank disclosure; and (iii) there is no real prospect of the claimant defeating a defence of limitation. It follows that the court has no jurisdiction to hear the claim and it falls to be dismissed.

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