Euroeco Fuels (Poland) Ltd & Ors v Szczecin And Swinoujscie Seaports Authority SA & Ors

This is an application by the Defendants challenging the Court’s jurisdiction to hear and determine these claims for libel and malicious falsehood or arguing that any such jurisdiction as exists should not be exercised or that the present proceedings should be stayed. The origins of the claims are words spoken by the 2^nd Defendant at a press conference in Poland (referred to in the Particulars of Claim as ‘the Words’) and a press release said to have been issued by the Defendants (in the Particulars of Claim ‘the Press Release’) also issued in Poland to the press and other media. These events took place at the end of March 2017. The reach of some of those Polish media included England and Wales. The Claimants rely on what are said to be republications of the Words and the Press Release which took place in England and Wales by means of internet articles being read here and Polish broadcasts available here, again on the internet (‘the Republications’).

The Claim Form was issued on 9^th May 2017. It was to be served on the Defendants in Poland but leave to serve out of the jurisdiction was said not to be necessary because the claim was one which the Court had power to determine under the Civil Jurisdiction and Judgments Act 1982 and no proceedings between the parties concerning the same claim were pending in the courts of any other part of the UK or another Contracting State and the Defendants were domiciled in (in this case) a Convention territory.

Particulars of Claim dated 23^rd May 2017 followed. They were drafted by Adrienne Page QC, who also appeared before me on behalf of the Claimants.

CPR Part 11 provides the procedure for disputing the Court’s jurisdiction. An application must be made within 14 days of acknowledging service and must be supported by evidence. Such an application was issued on 24^th July 2017 and was supported by the witness statement of Steven Baker of Dentons UKMEA LLP who were then the Defendants’ solicitors. It is fair to say that Mr McCormick QC, who appeared for the Defendants, relied only selectively on the grounds advanced by Mr Baker. In due course, the Defendants instructed B.P.Collins LLP who continued to act for them at the time of the hearing. They issued an amended application notice (dated 31^st January 2018) on 15^th February 2018. There is an issue between the parties as to whether it is open to the Defendants to rely on that amended notice and/or for Mr McCormick to be able to rely on all of the submissions which he argued in his skeleton argument dated 23^rd February 2018. I will return to these matters in due course.

The 1^st Claimant is a Polish company. It is the leaseholder of a site in the Baltic port of Szczecin in Poland. It operates an industrial scale alternative petrochemical production plant recycling used tyres into carbon and oil products. This is the ‘EEF Plant’.

The 2^nd Claimant is an English company. It is said to operate the EEF plant, along with the 1^st Claimant. It owns 87.5% of the shares of the 1^st Claimant. It owns the intellectual property on which the EEF Plant relies.

The 3^rd Claimant is the Chief Executive Officer of the 2^nd Claimant. He owns the majority of its shares. He is a member of the senior management of the EEF Plant.

The 4^th Claimant is a member of the senior management of the 2^nd Claimant. He is said to be the Chief Executive of the EEF Plant and the President of the Management Board of the 1^st Claimant (the equivalent of the company’s CEO). The 3^rd and 4^th Claimants are said to be publicly associated (especially in the UK) with the day to day operation of the EEF Plant and to have invested time and money in its establishment and operation and the development of the ‘clean’ alternative energy which it deploys.

The 1^st Defendant is the 1^st Claimant’s landlord and the administrator of the ports of Szczecin and Swinoujscie. The 2^nd Defendant is the 1^st Defendant’s Director of Port Infrastructure and Maintenance. The 3^rd Defendant is President of the 1^st Defendant. The 1^st Defendant is said to be vicariously responsible for the other two.

As I have said, the Claimants rely exclusively on Republications by the media within the jurisdiction. However, since those are said to derive from the Words (spoken by the 2^nd Defendant) and Press Release which were spoken and issued in Poland, the Particulars of Claim understandably sets these out. They (and indeed all of the Republications) were in Polish, but the Particulars provide the original language and English translations. For obvious reasons, the submissions before me concerned the latter.

In essence it is pleaded that the Defendants were saying in the Words and Press Release that the EEF Plant was emitting excessive levels of benzene and that in some cases they were being exceeded by several hundred per cent.

These remarks were said to have been picked up by the Polish media, television, radio, and internet news distributors. Nine particular Republications are pleaded whose reach is said to have included England and Wales. Again, all were in Polish. Unsurprisingly, their precise words vary. They are all said to be still accessible. The Defendants are said to be liable for the Republications because the 2^nd Defendant knew and intended from what he said to reporters that his words or words to the same effect would be republished. The 2^nd Defendant reported to the 3^rd Defendant and had his authority to say what he did. Furthermore, it is said that the Defendants did foresee, or should reasonably have foreseen, that the Republications would include an audience in England where the owners, investors and potential investors in the EEF Plant or their agents and advisors were mainly situated.

Although the Claimants were not all named in the Republications, it is pleaded that they would all have been identified with the EEF Plant or EuroEco Fuels of which the Republications did speak.

Libel pleadings must include the meaning or meanings said to have been defamatory of the claimants. Ms Page did not attribute a meaning to each of the Republications separately. Instead she has pleaded that the Words, the Press Release and the Republications (all referred to in omnibus fashion) had the following meanings:

The Claimants also plead that the Court should infer that all or most of those who read the Republications would know that human exposure to benzene above certain levels is associated with acute health disorders.

The Defamation Act 2013 s. 1 now provides:

The 1^st and 2^nd Claimants are bodies that trade for profit. Accordingly, so far as they are concerned, each Republication will only be actionable in libel if it caused or was likely to cause that Claimant serious financial loss. None of the four Claimants can succeed in libel in respect of each Republication unless that Republication caused or was likely to cause serious harm to the reputation of the Claimant in question.

Alive to these requirements Ms Page’s Particulars of Claim indeed allege in paragraph 20 that the Republications (as well as the Words and Press Release) have caused and are likely to cause serious harm to the reputations of all of the Claimants and that the 1^st and 2^nd Claimants have been caused serious financial loss and will in the future be likely to suffer further serious financial loss. Particulars are also pleaded which include (where available) the estimated circulation in the UK (I add as a minor aside that it would be wrong to equate the UK with England and Wales, but I assume the Claimants would wish the Court to infer that a substantial part of the UK circulation or audience would be in England and Wales). The Claimants also plead that a major source of investment is England and Wales and potential investors are likely to conduct a due diligence search of online materials which would, in turn, be likely to lead to the Republications. In paragraph 20.10 specific examples are given of individuals who are said to have accessed the Republications in England. These individuals are not named (with the exception of two Foreign and Commonwealth Office officials), but whose names, it is said, were set out in a Confidential Annex. It is pleaded that the Annex would be given to the Defendants on appropriate undertakings. By the time of the hearing before me, the Defendants had not given the requested undertakings and had not received the Confidential Annex. Ms Page did not press the Claimants’ entitlement to rely on the Confidential Annex. I made clear at the hearing that I had not seen it and would decide the application without reference to it.

For the claims in malicious falsehood, the Claimants must plead and prove that the words were false. Paragraph 21 pleads that the Words and the Press Release were false in material ways. Those expressions have been carefully defined by Ms Page and they are distinguished from the Republications. There is not, therefore, in terms, a pleading that each of the Republications was false. Mr McCormick did not take this point. I assume that was because he read the plea of falsity as extending by inference to the Republications as well.

The Words and Press Release are said to have been false for a number of reasons which include in summary the following:

A further requirement for the tort of malicious falsehood is that the words must have been published maliciously. The Claimants seek to show that by pleading that the 2^nd and 3^rd Defendants authorised and published the Words and the Press Release for the dominant and improper motive of causing damage to the business operating at the EEF Plant to the point where it has to be sold, allowing its site to be let by the 1^st Defendant to other businesses more appealing to the current management. It is said that the Defendants no longer consider it to be in their interests to enable the Claimants to expand the EEF Plant. Furthermore, it is said that the Defendants knew, before the Words were spoken or the Press Release was published, that they were false and misleading or they lacked an honest belief in their truth or were indifferent to their truth or falsity. Further particulars of those pleas are given.

At common law an action in malicious falsehood could only be maintained if it caused special damage. By Defamation Act 1952 s.3(1), that is not necessary if the words were in writing or other permanent form and ‘are calculated to cause pecuniary damage to the plaintiff.’ That requires the claimant to show that the words were more likely than not to cause him pecuniary damage. Paragraph 27 of the Particulars of Claim pleads that ‘The Words, the Press Release and the Republications were calculated to cause pecuniary damage to the Claimants and each of them.’ Since the publications relied on by the Claimants are exclusively the Republications, the references to the effect of the Words and the Press Release are superfluous, but it is pleaded that the Republications did have that effect, if one assumes that Ms Page intended the paragraph to read, ‘The Words, the Press Release and the Republications and each of them were calculated to cause pecuniary damage to the Claimants and each of them.’

There is then a plea of general damages. Special damages are not claimed. Among other things, it is said that at least two third party potential investors in the EEF Plant have decided against pursuing their interest and the future of the Claimants’ investment has been put in serious jeopardy.

This Regulation is sometimes known as ‘the Recast Brussels Regulation’. The parties were agreed that it was the primary legislative source for the determination of the Defendants’ application.

The Recast Brussels Regulation was adopted in December 2012. It applies to legal proceedings instituted after 10^th January 2015 (see Article 66). It replaced the Brussels Convention of 1968 which had been given the force of law in the UK by the Civil Jurisdiction and Judgments Act 1982, as supplemented and amended from time to time. As an EU regulation, it necessarily takes precedence over any conflicting domestic legislation.

One of the purposes of the Brussels Convention and of the Recast Brussels Regulation was to provide for a clear and predictable set of rules for determining which Member State should have jurisdiction to decide contested litigation. The Recast Brussels Regulation Article 4 sets out the basic rule,

Each of the three Defendants in this case is domiciled in Poland. Accordingly, (unless some other provision of the Regulation permits) it is in Poland that they should be sued in accordance with Article 4. By Article 5, persons domiciled in a Member State may be sued in another Member State only to the extent permitted by Sections 2-7 of the Regulation (i.e. Articles 4-26).

Article 7 is part of Section 2 of the Recast Brussels Regulation which is entitled ‘Special Jurisdiction’. Relevant to the present case is Article 7(2) which says,

In Shevill v Presse Alliance SA, the Defendant was the publisher of the French daily newspaper France Soir and was domiciled in France. The Plaintiff (more accurately one of the Plaintiffs) was domiciled in Yorkshire, England. She claimed that an article in one issue of France Soir defamed her. She brought her claim in the English courts. Initially her claim concerned both English and foreign publications, but by an amendment she confined her action to publications which had taken place in England and Wales. While about 237,000 copies of the paper were sold in France, she said that some 230 were sold in England and Wales (5 of which were sold in Yorkshire). As a matter of English law, each separate ‘publication’ in the sense of each occasion that the defamatory words were made known to a reader gave rise to a separate cause of action. She alleged that those publications in England and Wales were sufficient to mean that (as regards them) the ‘harmful event’ had occurred in the jurisdiction of the English courts and her action here should therefore be allowed to continue. At the time the Brussels Convention was still in force, but Article 5(3) was in the same terms as Article 7(2) of the Recast Brussels Regulation. The Defendant’s application disputing the jurisdiction of the English court was dismissed by the High Court and an appeal to the Court of Appeal was unsuccessful. When the case reached the House of Lords, it referred questions to the Court of Justice of the European Communities (Case 68/93). That Court ruled (at [1995] 2 AC 18 [33]) that,

At [38]-[39] the Court said that it was for the national courts to specify the circumstances in which the event giving rise to the harm may be considered harmful to the victim (although the effectiveness of the Convention must not thereby be impaired).

When the matter returned to the House of Lords, the Defendant argued that it was insufficient for the Plaintiff to rely on the presumption of damage in the English law of libel. That was rejected – see [1996] AC 959, 982-3. The Court of Justice had left to the national court, applying its own substantive law, to determine what constituted a harmful event, and the Plaintiff was entitled to rely on the presumption that publication of a defamatory statement was harmful.

In a subsequent decision, E-Date Advertising gmbh v X, Martinez v MGN [2012] EMLR 12 the Grand Chamber of the Court of Justice allowed a claimant who claimed that he or she (or it) had been defamed in a newspaper published in several different Member States a further alternative. In the courts of the state where the claimant had the centre of his, her or its interests a claim could be brought for all of the damage caused. Both the actions in E-Date concerned internet publications. Both claims again involved the Brussels Convention, but again neither party before me has suggested that any different result would follow under the Recast Brussels Regulation.

In consequence the parties agree that where a claimant believes himself or herself to have been defamed in a newspaper or internet publication in more than one Member State by a defendant domiciled in a Member State, s/he has three choices:

It is this third alternative which the present Claimants have chosen to pursue.

It is, of course, now commonplace for internet postings to be published in many different countries and, indeed, for those publications to be simultaneous or nearly so. Section 9(2) of the Defamation Act 2013 partially attempts to address this phenomenon by directing the court to consider whether, of all the places in which the statement has been published, England and Wales is clearly the most appropriate place to bring the action. That provision however is of no relevance in relation to the present claim for two reasons: (a) by s.9(1) it only applies where the defendant is not domiciled in the UK, or another Member State and, as I have said, the Defendants are all domiciled in Poland; and (b) it applies to claims in defamation and so would, for that additional reason, not apply to the Claimants’ claim for malicious falsehood.

A further part of the Recast Brussels Regulation which is important for Mr McCormick’s argument is Article 30. This provides,

Article 30 is said to be germane because, before the English action began, the 1^st Defendant had taken proceedings in Poland against the 1^st Claimant alleging, in essence, that the EEF Plant was causing a nuisance because of the odours it emitted. Part of the evidence and statement of case relied upon by the 1^st Defendant in the Polish proceedings relates to the emission of benzene from the EEF Plant and the 1^st Claimant has submitted evidence in response and referred to it in its statement of case..

Both the original application notice and its amended form had also relied on Article 29 of the Recast Brussels Regulation. That is confined to situations where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States. Mr McCormick accepted that Article 29 did not apply and, as a result, I need say little more about it.

It is sensible and logical to consider the competing submissions regarding Article 7(2) before turning, if necessary, to those concerning Article 30.

The parties were agreed that, although this is the Defendants’ application, it was for the Claimants to show that the Court had jurisdiction under Article 7(2). That must be right. As a matter of general principle, a party who seeks relief from the court, must, if challenged, be ready to establish that the court does in fact have jurisdiction or power to grant that relief and that position is supported by the authorities (see for instance Canada Trust Co. v Stolzenberg (No.2) [1998] 1 WLR 547, 553C-D).

What is now Part 11 of the Civil Procedure Rules derives in part from the Rules of the Supreme Court Order 11. In that context the House of Lords had laid down that the appropriate standard which the Plaintiff must satisfy was that there was a ‘good arguable case’ as to why the English court had jurisdiction – see for example Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869. Bols Distilleries v Superior Yacht Services Ltd [2006] UKPC 45 was a decision of the Privy Council in relation to whether a Dutch company and a Polish company could be sued in the courts of Gibraltar for breach of a contract said to have been made with a Gibraltar company. Lord Rodger gave the decision of the Board. He quoted from the decision of Waller LJ in Canada Trust v Stolzenberg (No.2) (above) in which it was said that the phrase ‘good arguable case’ meant that ‘one side has a much better argument on the material available’. In Canada Trust the House of Lords had endorsed Waller LJ’s judgment – see [2002] 1 AC 1 at 13 and in Bols the Privy Council added its own endorsement – see Bols at [28].

There were further recent observations made in the case of Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192 SC in which Lord Sumption, with whom Lord Hughes agreed at [7] was not attracted to the word ‘much’ in Waller LJ’s formulation since it suggested a ‘superior standard of conviction that is both uncertain and unwarranted in this context’. To some extent the majority (Lady Hale, Lord Wilson and Lord Clarke) differed. Lady Hale at [33] noted that

Notwithstanding Lady Hale’s comments, I take the following to be established by the authorities in elaboration of the phrase ‘a good arguable case’:

I add this. This challenge falls to be determined at a very early stage in the action. There is no defence. There is not, so far, any request for further particulars of the Claimants’ claims. The Claimants have been dependent on the content of the Application Notice (in its original and amended forms) and the witness statements served on behalf of the Defendants to be alerted to the nature of the challenges which the Defendants make.

The original application notice said that the Court either lacked jurisdiction or should not exercise it because,

Mr Baker’s witness statement commented that insufficient information was given of there being Republication in the jurisdiction. Reliance was placed on the Polish proceedings which I have mentioned. Reference was made to the Shevill and E-Date cases, but Mr McCormick accepts that Mr Baker’s reference to the effect of the later case was mistaken. Mr Baker did allege that the Claimants could not show any damage arising in England and Wales and it was said, there was insufficient information about the potential investors here. Mr Baker relied further on the Rome II Regulation (EC) 864/2007 which Mr McCormick has accepted is not relevant.

The amended application notice relied on the original application but said in addition the relief sought should be granted because,

The amended application notice was supported in the first place by witness statements from Michal Stankiewicz, a Polish lawyer acting for the 1^st Defendant in the Polish claim regarding the EEF Plant, and by a statement from Michal Dudkowiak, an independent Polish lawyer. Both of these were relevant to paragraph 3 of the amended notice i.e. the argument based on Article 30 of the Recast Brussels Regulation and I will return to their evidence when I come to consider that part of the application.

The Defendants’ solicitors sent the Claimants’ solicitors a draft of the amended application on 31^st January 2018 and asked whether the Claimants objected. At that stage there was no evidence in support of the proposed amendment and Mishcon de Reya, the Claimants’ solicitors, said on 2^nd February 2018 that they would need to see such evidence before taking a view on the proposed amendment. B.P. Collins replied on 5^th February 2018 ‘The amendment to the notice is proposed only to clarify what your clients have always known, namely that under Article 30 the court has the discretion to order a stay as an alternative to dismissal.’ On 8^th February 2018 Mishcon said they would be willing to consent to the amendment on the basis that the Defendants relied only on the evidence of Mr Baker and Mr Stankiewcz (whose witness statement had by then been served). BP Collins refused to accept this condition because, they said, it would preclude them from relying on any evidence in response to the Claimants. On 9^th February 2018 Mishcon served the Claimants’ evidence in response (see below) and, in a second letter said that, on the basis that the Defendants would only rely on further evidence in direct response to the Claimants’ evidence, the Claimants would not oppose the application to amend their application notice and to rely on the evidence of Mr Stankiewicz and Mr Dudkowiak. So far as may be necessary, I give permission for the Defendants’ application notice to be amended.

The Claimants’ evidence included a witness statement from Ms Katarzyna Paczuska-Tokarska, the Polish lawyer for the 1^st Claimant in the Polish proceedings, dated 8^th February 2018. Her evidence is primarily relevant to the Article 30 issue and I will come to that in due course. The Claimants relied as well on the witness statements of Mr Timpany, the 3^rd Claimant, and Mr Harper, the 4^th Claimant, both dated 9^th February 2018.

Mr Timpany gives evidence of the inter-relationship between the Claimants and the Republications to readers and audiences in England and Wales. He gives some further information about the anonymised individuals who were referred to by initials in the Particulars of Claim. Some, but not all, he says, were British and based in London. He says that 80-90% of his fundraising takes place in the UK. He continues that anyone thinking of investing in the 1^st or 2^nd Claimants would conduct due diligence and that would involve an online media search. He says that reputation is critical in the renewable energy industry and the Defendants’ defamatory allegations had been extremely damaging. The allegations by the 1^st Defendant in the Polish proceedings were also damaging, but, Mr Timpany adds,

He says that the defamatory allegations have made it hard to raise funds. He says that the allegations have also affected their relationship with the UK government. Dealing with that has taken up a lot of management time.

Mr Harper’s witness statement said that in four or five months after the first appearance of the defamatory allegations, concerns were raised with him directly five to six times a month, but the issues are still raised with him by potential investors. A significant proportion of the people who have raised these concerns are British and/or based in the UK. He endorses Mr Timpany’s comments about the harm caused by the publicity. He says ‘We are tainted goods.’ He says that there has also been an adverse impact on the willingness of suppliers to deal with them.

The 3^rd Defendant provided a witness statement in reply dated 16^th February 2018. Realistically he says he is unable to comment on the Claimants’ claims that the statements were re-published and read in the UK. He takes issue with the alleged difficulties of the Claimants in raising investments and refers to articles and postings suggesting that they or associated companies have had recent success in this regard. Mr Timpany replied in his 2^nd witness statement dated 21^st February 2018. The 3^rd Defendant made a second witness statement on 26^th February 2018 (the day of the hearing) and which was served towards the end of the hearing. Ms Page did not accept that I should admit it in evidence. I will come to that later.

In his skeleton argument, Mr McCormick contended that the Claimants had not shown a good arguable case that they were able to rely on a harmful event in the jurisdiction.

So far as libel was concerned, he submitted (in summary):

In malicious falsehood,

Ms Page takes two preliminary points.

First, she submits that the breadth of the Defendants’ arguments under Article 7(2) was not foreshadowed in their original notice, the amended notice or the evidence in support. It first emerged in Mr McCormick’s skeleton argument which was served on 23^rd February 2018, the working day before the hearing.

Second, she submits that these arguments in reality are submissions that the claims (or parts of them) should be struck out as disclosing no reasonable cause of action or that summary judgment should be granted to the Defendants. However, relief of that kind could only be available if the Defendants accepted the jurisdiction of the English court and issued the appropriate application. She argued that, unlike Bols or Canada Trust, this was not a case where essential facts were in dispute. It was not disputed that the 2^nd Defendant had spoken the Words or that the Press Release had been issued. It was accepted that republication was foreseeable. It was not disputed that the words bore a defamatory meaning, at least of the 1^st Claimant or that the 1^st Claimant had suffered serious reputational damage.

Apart from these preliminary matters, she submitted that the Claimants had provided sufficient evidence to surmount the ‘good arguable case’ test. She argued that there was sufficient evidence of financial loss already incurred for the 1^st and 2^nd Claimants to satisfy s.1(2) of the 2013 Act. In any event, under that provision it was possible for a claimant who traded to show that such loss was likely to occur. Ms Page reminded me that part of the relief sought by the Claimants was an injunction to prevent repetition of the libels. Article 7(2) permitted a claim to be brought where the harmful event ‘occurred or may occur’ and so that also allowed for the possibility of an action to prevent future loss. She also argued that, contrary to Mr McCormick’s submissions, the materials before the Court did show that the Claimants had surmounted the ‘good arguable case’ test.

I do not accept either of Ms Page’s preliminary objections.

I have some sympathy with her complaint of lack of earlier notice of this aspect of Mr McCormick’s challenge. While the initial application did make clear that jurisdiction was in issue, its reasons for taking that stance were somewhat opaque. I accept Mr McCormick’s submission that the Claimants agreed in Mishcon’s letter of 9^th February 2018 to not oppose the Claimants’ application to amend the application notice. The amended notice did, appositely, give as its first reason that there had been no harmful event within England and Wales in respect of each of the Claimants. However, by coupling this with a reference to the Defamation Act 2013 s.1, the Claimants could be forgiven for thinking that this line of attack was confined to the claims in libel: the 2013 Act has no application to malicious falsehood. Such a reading of the first reason in the amended notice would be reinforced by BP Collins’s letter of 30^th January 2018 which had said,

While all of that can be said, once jurisdiction is put in issue it is, as Ms Page accepted, for the Claimants to satisfy the Court that it does indeed have jurisdiction. Even without anything further from the Defendants, it was therefore for the Claimants to put before the Court such evidence as they considered necessary to discharge that burden. Ms Page did also have the weekend to consider Mr McCormick’s skeleton argument and, while she might have welcomed a longer opportunity, for counsel of her experience that was sufficient for her to muster her arguments to meet it.

Nor do I accept her submission that the type of arguments presented by Mr McCormick could only be made in the course of an application to strike out all or part of the claim or for summary judgment. As Waller LJ said in Canada Trust at p.555,

The matters to which Mr McCormick alludes in this part of his argument will, if and so far as the matter proceeds, go to whether the Claimants have made out their causes of action, but they also go to whether they have suffered a ‘harmful event’ in England and Wales so as to give the Court jurisdiction pursuant to Article 7(2).

Thus, I must consider the merits of Mr McCormick’s arguments in relation to Article 7(2). Yet, I am also conscious that what the Claimants have to establish is, not that they are more likely to succeed than not at trial, but that they have a good arguable case that their claims in libel and malicious falsehood will succeed. I also bear well in mind the stage at which these proceedings have reached. As has been repeatedly emphasised, the Court has to make its decision on the basis of written evidence and in advance of the disclosure which would precede a trial. I have the Particulars of Claim but, as I have already illustrated, they may need refinement and my decision has to be made in advance of amendment and / or the provision of further particulars which may be necessary in advance of a trial. The absence of a clear signal in the application notice, its amended version or the evidence in support that the jurisdictional challenge was to include deficiencies in the pleading is a further reason for taking this approach.

In my view, some of Mr McCormick’s criticisms are likely to be capable of being addressed (if necessary) by amendment or particulars. Thus, for instance, if, as in my provisional view is the case, a separate meaning should be pleaded for each of the Republications, that could be done and would not, in itself, be a reason for deciding that no harmful event has occurred in relation to each Republication within the jurisdiction.

It is, of course, the case that a libel of a company is not necessarily defamatory of those connected with its management or a holding company, but it may be. The Claimants have provided sufficient evidence (at this stage) that each of them is associated with the 1^st Claimant and the EEF Plant that the Republications which referred to those matters would be understood to be also referring to each of them, at least by readers with knowledge of the facts referred to in paragraphs 18.1-18.3 of the Particulars of Claim.

There is also sufficient evidence from the Claimants that each of them has a good arguable case that the common criterion for all libel claimants of serious harm from each of the Republications can be established. I was less impressed by Ms Page’s argument that future harm would, in the circumstances of this case, be a sufficient alternative. In theory it may be, but where the publications relied upon are internet postings 10 months ago, I would need considerable persuasion that harm, which has not already occurred, may nonetheless be likely to occur in the future.

‘Serious financial harm’ must be shown by the 1^st and 2^nd Claimants before they can be said to have suffered ‘serious harm’. No special loss is pleaded, but Parliament has not confined the expression ‘serious financial harm’ to special loss and, as Ms Page observed, that contrasts with s.14(2) of the Defamation Act 2013 where, in a completely different context, the statute does refer to ‘special damage’. Absent some clearer indication of Parliament’s intention, I would not limit ‘serious financial harm’ to special damage. I also see no reason why ‘serious financial loss’ may not, like other forms of ‘serious harm’, be capable of inference from the evidence. Loss to investors is not automatically to be viewed as loss to the company, but it can make borrowing more expensive and the raising of equity more difficult. Here, there is also evidence of an adverse impact on suppliers and of management time made necessary by responding to the libels. At a trial there may be issues as to whether these consequences have flowed from the Republications within England and Wales (to which, since the Claimants have adopted the ‘mosaic alternative’ they are limited), rather than publications which were accessed abroad, but there is sufficient evidence at this stage that the source of the Claimant’s investment is mainly in the UK. Additionally, Mr Harper says that UK suppliers of waste products no longer offer him such competitive rates, which is evidence of financial loss of a different kind. Again, I consider that the 1^st and 2^nd Claimants have a good arguable case that they will satisfy the test in s.1(2) of the Defamation Act 2013.

As for the claims in malicious falsehood, for the reasons already given, I accept that the Claimants again have a good arguable case. As for s.3 of the Defamation Act 1952, the pleading has been supplemented by the witness statements and for the same reasons that I have given in relation to s.1(2) of the 2013 Act, on the present evidence the Claimants have a good arguable case.

I have used the expression ‘good arguable case’. So far as it means anything different, I would reach the same conclusions by reference to the phrase ‘much the better argument on the evidence available’.

In the circumstances set out in Article 30 the Court has two discretions: it may declinejurisdiction in accordance with Article 30(2); or it may grant a stay in accordance with Article 30(1).

The parties are agreed that it is for the Defendants to persuade me that the necessary pre-conditions exist and it is also for the Defendants to show why one or other of the discretions should be exercised.

Both powers are dependent on there being ‘related proceedings’ in the courts of different Member States. It is convenient to repeat Article 30(3) which says,

In relation to the Polish proceedings and Polish civil procedure I have from the Defendants the witness statements of Mr Stankiewicz of 5^th February 2018, and Mr Dudkowiak of 8^th February 2018, 15^th February 2018 and 23^rd February 2018. Those are in addition to the statements of Mr Baker and the 3^rd Defendant dated 20^th July 2017 and 16^th February 2018 respectively. From the Claimants I have the statements of Ms Paczuska-Tokarska of 8^th February 2018 and 21^st February 2018. The papers before me also included an opinion by another Polish lawyer, Marcin Kazmierski, dated 7th April 2017, which had been sent with the letter before claim.

Ms Page argued that, although proceedings were pending in courts of Poland and England, the English and Polish proceedings were not ‘related’ for the purposes of Article 30(3). She submitted:

Mr McCormick argued:

In my view the English and Polish proceedings are ‘related’ for the purposes of Article 30. I recognise that the Polish proceedings do not involve all of the parties to the English proceedings, but that is not essential (contrast Article 29, which only applies if there are proceedings in different Member States for the same cause of action and between the same parties, but, when applicable, requires proceedings in subsequent Member States to be stayed). I recognise also that the 1^st Defendant could succeed in the Polish proceedings by showing that, irrespective of any output of benzene, the EEF Plant emitted noxious odours. The issue of the truth of the allegations in the Republications is likely to be an issue in the English proceedings. Since the Claimants have relied on malicious falsehood as well as libel they will have the burden of positively showing that the Republications were false in the absence of an express admission to that effect (which there is not). In the libel claims the 1^st and 3^rd Defendants have said they will defend them as true. That was very late in the day, but, for the reasons given by Mr McCormick, their position was foreshadowed in the earlier documentation from the Defendants. The latest witness statement is not as precise as a pleading would have to be, but is, in my view, sufficient for me to draw that conclusion for the purposes of the present application. Whether or not the 2^nd Defendant joins in a plea of truth is besides the point: that will be an issue in the English proceedings so far as I can make the assessment.

Ms Page argues that, even in relation to benzene emissions, there is a distinction between what is in issue in the Polish proceedings and what would (potentially) be in issue in the English proceedings in terms of the scale and persistence of the alleged pollution. Further, I bear in mind that the English proceedings are not yet at a stage where the Defendants are obliged to state with precision the meaning which they will defend as true. Even when they do so, the issue at trial for the purpose of the libel proceedings will be whether, in such meaning or meanings as the Court determines the words of the Republications bear, they are substantially true (Defamation Act 2013 s.2). Notwithstanding the points put forward by Ms Page, applying the common sense approach which Lord Saville mandated, there is, it seems to me, a risk of irreconcilable judgments between the Polish court and, if they continue, the present English proceedings.

The full phrase in Article 30(3) for determining whether actions are related is whether

That view is also supported by paragraph (21) of the preamble which says,

I, therefore, take the word ‘together’ in Article 30(3) to mean together in the same Member State. Whether the claims are tried together in the same action or the same court or whether some other procedure is adopted to prevent or minimise the risk of irreconcilable judgments would then be a matter for the law of civil procedure of that Member State.

If, as I have held, there is a risk of irreconcilable judgments, it would seem that there is still a judgment to be made as to whether that risk makes it expedient for them to be heard together. While I recognise that such a judgment is necessary, it seems to me that it will involve very similar issues as to whether the discretionary decisions allowed by Article 30(1) and Article 30(2) should be taken.

The power to decline jurisdiction in Article 30(2) has two further conditions. The first is not problematic. In the courts first seised the action must be ‘pending at first instance’. The Polish claim by the 1^st Defendant is still in the trial court and this condition is therefore satisfied.

The second condition in Article 30(2) is that

‘Actions’ is in the plural. However, no question has been raised as to the Polish court’s jurisdiction over the current Polish proceedings. The Polish lawyers for both sides are agreed that Polish courts would also have jurisdiction over the claims for libel and malicious falsehood which have presently been brought in England, if such claims were to be brought in Poland. Furthermore, the Polish lawyers are also agreed that in principle such actions, if brought in Poland, could be consolidated with the existing Polish proceedings by virtue of Article 219 of the Polish Code of Civil Procedure. Thirdly, they are also agreed that, while such consolidation is in theory possible, in practical terms consolidation is very unlikely because of the different nature of the two sets of proceedings.

In my judgment, the power to decline jurisdiction in Article 30(2) arises if the law of Poland, in this case, ‘permits consolidation’. The likelihood or otherwise of that occurring is, at most, a relevant consideration as to whether the discretion which would then arise should be exercised. Since it is agreed that Polish civil procedure would ‘permit consolidation’ the second condition for the discretion in Article 30(2) is also fulfilled. I now turn to the question of whether I should exercise that discretion..

The arguments in favour of doing so, as advanced by Mr McCormick were, in summary:

The factors against, put forward by Ms Page, were:

Some guidance on how the Court should approach this discretionary decision was given by the Supreme Court in Starlight Shipping Co v Allianz Marine and Aviation Verisherungs AG, In Re Alexandros T (Nos 1,2 and 3) [2013] UKSC 70, [2014] Bus LR 873 at [92] where Lord Clarke said,

Subsequently, in Plaza BV v The Law Debenture Co [2015] EWHC 43 (Ch) Proudman J. said that neither Advocate General Lenz, nor the Supreme Court had suggested that the three factors were exhaustive.

Ms Page submitted, without contradiction from Mr McCormick, that once jurisdiction is established under the Recast Brussels Regulation, the Court does not have a general discretion to decline to hear the case or to stay the proceedings on grounds of forum non conveniens – see Owusu v Jackson [2005] QB 801, a decision on the Brussels Convention but, which I accept, is still material to the Recast Brussels Regulation. While I accept that proposition, I also agree with Mr McCormick that some of the factors which in another context might feature in an argument as to which forum was conveniens may also be material as to whether to exercise a discretion which arises under Article 30.

I shall take first the three factors summarised by Lord Clarke.

After the hearing I invited the parties’ submissions on a decision of the European Court of Justice (Grand Chamber) which had not been cited - Bolagsupplyningen Ou v Svensk Handel AB [2018] EMLR 8. This said,

The parties responded in a joint submission that this case had not been cited by either of them because it was not considered by either of them to be relevant: the Claimants were not seeking rectification or removal of material placed on the internet by a website publisher. They were seeking different relief, namely compensation and injunctive relief against the defendants in relation to England and Wales alone. I have made my decision on this basis, although I would set down a marker that in a future case, the correctness of that position may need to be examined more closely where the effect of an injunction would be to restrain internet publications whose reach to England Wales cannot be distinguished from elsewhere in the world.

The conclusion that I come to is this; the necessary conditions for declining jurisdiction under Article 30(2) are fulfilled and the discretion to do so should be exercised.

I have considered whether, instead of declining to exercise jurisdiction under Article 30(2), I should alternatively stay the proceedings pursuant to Article 30(1). (I accept that I am not obliged to decline jurisdiction or to stay the proceedings. I could do neither – see Alexandros T (above at [97]) but I am not inclined to take that course in view of all the circumstances of the case).

The conditions for staying the proceedings in Article 30(1) are not as onerous in that this discretionary power is not dependent on the requirement that ‘the court first seised has jurisdiction over the action in question and its law permits the consolidated thereof.’ It is still necessary that the actions be related, but I have held that they are. The related actions must still be pending, but they plainly are.

It may be said that staying the proceedings would be a less drastic alternative to declining jurisdiction. It would have the advantage of postponing a decision as to whether to allow the English proceedings to continue until more was known about:

I have, though, decided against that course. Ms Page positively argued against it. She said that the Claimants were concerned to obtain speedy vindication of their reputations. In her submission, a stay would be as good as denying them that opportunity in the English courts and, in practice be no different from declining jurisdiction. As to the second matter, she submitted that the evidence from the Polish lawyers was that consolidation was highly unlikely (as indeed I have accepted) and there was therefore no point in staying the English proceedings to see if that occurred.

In view of the Claimants’ position, I have decided that staying the proceedings under Article 30(1) is not a course which I should adopt rather than declining jurisdiction under Article 30(2).

The Claimants have satisfied me that the Court has jurisdiction to entertain their claims in libel and malicious falsehood, confined, as they are, to harm suffered in England and Wales.

The Defendants have shown that the necessary conditions are fulfilled for the Court to decline jurisdiction pursuant to Article 30(2) or to stay the English proceedings pursuant to Article 30(1) and good reason why the Court should take one or other of those courses.

Had the Claimants been minded to advocate a stay rather than the Court declining jurisdiction (as the lesser of two unwelcome alternatives) I would have taken that course, but that is not their position.

I will decline jurisdiction to hear the Claimants’ claims for libel and malicious falsehood.

I will give the parties the usual opportunity to agree the formal order that should follow from this judgment.

This judgment (as is usual) was circulated in draft to the parties on 21^st March 2018 with the date when I intended to hand it down. By an email of 22^nd March 2018 to my clerk, Ms Page asked that the handing down of the judgment should be deferred and a transcript be obtained of the hearing on 26^th February. Ms Page wrote,

I agreed to this course. A transcript was obtained and I set out a timetable for the exchange of submissions in relation to this matter. The transcript showed that, on the question of a stay, Ms Page submitted this,

In the course of her post draft-judgment submissions, Ms Page wrote,

However, I was aware of this third possibility, as I have said (and had said in the draft judgment) at [99]. I repeat that I have considered this alternative but decided that in all the circumstances this ‘do nothing’ option is not appropriate.

It is incumbent on a party to present all the arguments which they wish the Court to consider by the end of a hearing. Ms Page had clearly submitted that the necessary pre-conditions for a stay were not satisfied. She did submit that, because of the delays which would be entailed, a stay would be tantamount to declining jurisdiction. She did not then argue, as she has in her post-draft judgment submission, that a stay would, nonetheless, be a less unwelcome alternative. These were matters which I consider I was entitled to take into account in the exercise of my discretion. I accept Mr McCormick’s argument that a Court must be very cautious of allowing a party, after a draft judgment has been distributed, to make a case different from that put forward at the hearing.

In the course of her post-draft judgment submissions, Ms Page also submitted that I had insufficiently summarized her arguments as to why the Polish proceedings were not ‘related proceedings’. In short, she wished it to be noted that she had argued that the Polish proceedings would not involve a decision as to the lawfulness of any benzene emissions. Mr McCormick disputed whether that was necessarily so. I agree with him that it is not possible on the evidence to be so definite about the Polish judgment. In any event, as Mr McCormick also submits, it is material that the Particulars of Claim paragraph 19.1, in setting out the alleged defamatory meanings, draw an equivalence between what is legally permitted and what is safe. As I have noted above, what is material is whether there is a risk of irreconcilable judgments. Despite Ms Page’s arguments, I consider that there is.