SVANTE KUMLIN & Anor v CAMILLA JONSSON & Ors

This is a claim for libel. The application before me is brought by the four Defendants. Pursuant to CPR Part 11, they challenge the Court’s jurisdiction to try the claim. They say I should decline jurisdiction. The matter is factually and legally complex. The Defendants’ application raises a number of issues. In particular, it raises some complex cross-jurisdictional questions relating to claims in libel under EU law. I have full transcripts of the hearing which I have consulted when writing this judgment.

CPR r 11.1 provides:

“(1)

A defendant who wishes to –

(a)

dispute the court’s jurisdiction to try the claim; or

(b)

argue that the court should not exercise its jurisdiction

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.”

The following is not necessarily agreed but I think is sufficient to provide the generally relevant background.

As pleaded in the Particulars of Claim (PoC), the First Claimant is an entrepreneur, businessman and investor in sustainable and ethical business ventures, resident in Monaco, with business interests in the UK including in the Second Claimant, of which he is the founder, Chairman and Chief Executive Officer. He is a Swedish citizen.

The Second Claimant is a public limited company registered in England and Wales with company number 11776841. Its registered office and corporate headquarters is at 13 Hanover Square, London W1S 1HN. It is the apex company of the Eco Energy World (EEW) Group which employs 13 workers in London, and comprises the following subsidiaries, each of which is an English limited company:

The organisation chart exhibited in SK2 to the First Claimant’s first witness statement shows that below these entities sit EEW Eco Energy World Development Holdings One BV (a Dutch company), and EEW Holdings 1 APS (a Danish company). Below these, in turn, sit Special Purpose Vehicles (SPVs) to hold particular assets.

The Second Claimant asserts that by reason of these facts and matters it enjoys a reputation, including in this jurisdiction, and in particular in the financial and energy sectors, where it is well known.

The Fourth Defendant owns and publishes a business news website available worldwide at www.realtid.se (the Website/Realtid).

The First Defendant is the editor-in-chief of the Fourth Defendant.

The Second and Third Defendants are journalists employed or engaged by the Fourth Defendant.

All of the Defendants are Swedish, the First Claimant is Swedish, and all of the publications complained of were written in Swedish. The Defendants say that over 88% of the readership of the Website is in Sweden, as opposed to just 0.85% in the UK, with the balance of the readership being elsewhere.

The Claimants’ case is that between 29 September 2020 and 2 November 2020 the Defendants, or some of them, published or caused to be published on the Website eight articles concerning the Claimants (the Articles). There was further publication via Facebook, Twitter, etc, where links to the Articles were posted.

The Articles in Swedish and the English translation are contained in an Annex to the Particulars of Claim. They are lengthy and I do not propose to set them out verbatim. I will set out the pleaded defamatory meanings later, but for now it suffices to say that the defamatory meanings alleged include that the Claimants were accused of being part of a criminal network involved in so-called ‘ecocrime’, by which members of the network profited from the fraudulent marketing and sale of bogus or valueless supposedly ecologically ethical investments; that as part of this criminal activity they received unlawful payments from associates of a suspected fraudster; that they lied about marketing shares in Sweden; and they sought to dishonestly cover the tracks of their misconduct by deleting material from the internet and issuing false denials, as well as other fraudulent and/or dishonest and/or dubious activity.

The First Claimant says he has suffered serious harm to his reputation as a consequence. The Second Claimant says it has suffered serious harm in the form of serious financial loss. In particular, in April 2020 it signed an agreement (the Pareto mandate) with Pareto Securities Pte Ltd (Pareto), the Singaporean arm of Pareto Securities, a large Nordic investment bank. The object of the mandate was the raising of finance by the Second Claimant in the total sum of around €570 million to fund the acquisition and construction of solar power plants. The Second Claimant says that as a direct result of the Articles, in November 2020 Pareto cancelled the mandate, causing it serious financial loss.

In broad terms the Defendants dispute that any of the Articles has an actionable defamatory meaning, although they accept that two of them were defamatory at common law. They deny either Claimant has suffered serious harm as required by s 1 of the Defamation Act 2013 (DA 2013). I will return to this later.

As to responsibility for publication of the Articles on the Website, the Claimants’ case is that:

Before turning to the parties’ submissions, I need to set out some legal principles. It is common ground that the question of jurisdiction in this case is primarily governed by EU law, notwithstanding Brexit.

The BRR is Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast) (OJ L 351, 20 December 2012, pp1-32). Because the UK has left the EU, the BRR no longer has direct effect in domestic law as a matter of EU law. However, because this claim was issued on 20 November 2020, the BRR remains the operative legal framework in domestic law by virtue of the savings provisions in regs 92 and 93 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019/479) (the Regulations).

Article 4(1) BRR provides that:

“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

This confers general jurisdiction, which is unlimited: in other words, any claim for any remedy can be brought against a defendant in the courts of the Member State where they are domiciled under Article 4(1). The starting point, therefore, in this case, because the Defendants are domiciled in Sweden, is that they should be sued in Sweden.

However, Articles 7-26 provide for derogations from this general rule, which permit a defendant domiciled in one Member State to be sued in the courts of another Member State.

Relevant for present purposes is Article 7(2). This provides that:

“A person domiciled in a Member State may be sued in another Member State:

…

(2)

In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

…”

This exception is sometimes referred to in the case law as ‘the special jurisdiction’.

Hence, because the Defendants are domiciled outside England and Wales, this claim can only be brought here on the basis of Article 7(2) as a claim in tort. That is common ground. This requires an examination, in relation to libel, of the principles relating to the concept of the place ‘where the harmful event occurred’.

The meaning of ‘the place where the harmful event occurred or may occur’, in Article 5(3) of the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ L 299, 31.12.1972, p32–42) (in other words, the same language as Article 7(2) BRR), was considered by the ECJ in Handelskwekerij G J Bier BV & Stichsting Reinwater v Mines de Potasse d’Alsace SA [1979] ECC 206. In essence, the Court said the phrase has two limbs: (a) the place where the damage occurred (locus damni); and (b) the place of the event giving rise to damage (locus actus).

Bier was considered in the context of defamation in Shevill v Press Alliance SA (Case C-68/93) [1995] 2 AC 18 (Shevill (ECJ)). It was held the locus actus would almost always overlap with where the publisher was domiciled (ie, the acts giving rise to defamatory publication would generally be co-located with the publisher), so to ensure that Article 5(3) was given some effect, the courts of the locus damni had to have jurisdiction over damage caused by publication in their territory.

Accordingly, under what I will call the ‘rule in Shevill’, a libel claimant can choose either: (a) to sue a defendant in the Member State of the defendant’s domicile under Article 4(1) BRR for global damages; or (b) to sue the defendant in each/every Member State where there has been actionable publication under Article 7(2) BRR, but in each case she can only recover damages arising from publication within the territory of that Member State (ie, local damages). This latter option is sometime called the ‘mosaic option’: see eg, Wright v Granath [2021] EWCA Civ 28, [22]. In Mahmudov v Sanzberro [2021] EWHC 3433 (Admin), [10], Collins Rice J said:

“10.

What became known as the Shevill Rule stated that claimants had a choice. They could either proceed against defendants where the latter are domiciled, for global remedies for all the harm caused; or they could proceed in any or all countries where there is actionable publication – a tort committed – for the harm caused by that completed tort in that country. If the latter choice was taken, it was the national law of that country which determined whether there was a completed tort and if so what could be recovered there. So a claimant had two routes to global remedies: the general jurisdiction based on defendant's domicile, or (if all of the 'harmful event' did not happen in a different single country) a cumulative mosaic of actions in different countries relying on the special jurisdiction. The latter might or might not be preferable to claimants depending on local defamation laws.”

With the advent of the internet, the CJEU reconsidered the rule in Shevill in eDate Advertising Gmbh v X/Martinez v MGN Ltd (Joined Cases C509/09 and C-161/10) [2012] QB 654. Online publication was by then ubiquitous, and so all Member States potentially had simultaneous jurisdiction over an actionable publication on the internet.

The CJEU in eDate held that in a case concerning publication on an internet website, where a claimant had his ‘centre of interests’ in a Member State, then if that Member State had jurisdiction under Article 7(2) BRR at all (because there had been actionable publication there according to its domestic law), a claimant could now recover global damages from that Court (not just the local damages available under the rule in Shevill).

Essentially, eDate provides that if the ‘centre of interests’ court has jurisdiction at all, its power to award damages extends to global and not just local damages. But the prior question whether a particular Member State in which there has been internet publication has jurisdiction at all still depends on whether that publication is actionable by reference solely to the domestic laws of that Member State: see the decision of the House of Lords following the Shevill (ECJ) in Shevill v Press Alliance (No 2) [1996] AC 959, 983 (Shevill (HL)).

The Defendants gave the following examples in their Skeleton Argument, which I think are helpful illustrations of concepts which are not entirely straightforward.

Suppose that an online article is published by a Greek publisher on a low-readership website in the German language about a claimant with their centre of interests in Spain. Because of the language, the article is only read in Germany and Austria (with zero actual publication in Spain). The Spanish Court would not have jurisdiction under Article 7(2) BRR at all, because there was no publication there, and so while Spain might be the claimant’s centre of interests, that is irrelevant. Jurisdiction would only exist in Greece (where the publisher is domiciled, pursuant to Article 4(1) BRR, for global damages), or Germany and/or Austria (both under Article 7(2) BRR and the rule in Shevill, but only for local damages).

Next, to extend the example, suppose ten German-speaking people did in fact read the online article in Spain. However, it transpires (in this example) that Spanish domestic law has a de minimis threshold for libel claims, such that words are not actionable unless at least 25 people have read them. The Spanish courts would still have no jurisdiction, because (according to Spanish domestic law) there is no actionable publication in Spain (only non-actionable publication). That Spain is the claimant’s centre of interests is still irrelevant: he can still only sue in Greece (for global damages) or Germany and/or Austria (for local damages, under the mosaic option).

Now, suppose another 15 German-speaking residents of Madrid read the article, such that the Spanish law 25-person de minimis threshold is satisfied. The claimant is now able to sue in Spain (in addition to Greece, Germany and Austria), and because Spain is the claimant’s centre of interests, the rule in eDate provides that the Spanish courts can grant him global damages.

Therefore, where the basis of jurisdiction is said to be Article 7(2) BRR, there are two main questions:

The importance of the Second Jurisdictional Question increased after the third CJEU case (after Shevill and eDate) in October 2017: Bolagsupplysningen OÜ v Svensk Handel AB (Case C-194/16) [2018] QB 963. The CJEU was asked to consider the centre of interests of a legal (non-natural) person whose economic activity was not in the state in which it was domiciled, but which sued, in its home courts, a foreign defendant from another Member State under Article 7(2) of the BRR.

The CJEU in Bolagsupplysningen was generally understood to have held that: (a) the centre of interests doctrine in eDate applied to legal persons, not just to natural persons, for the recovery of global damages under Article 7(2) BRR, and that the place a company had its registered office was not determinative of its centre of interests; (b) that non-pecuniary remedies (such as injunctions, or court orders to rectify or remove information) in relation to the internet were ‘indivisible’ and could only be granted by a court with jurisdiction to grant global damages (ie, the courts of either the defendant’s domicile or the claimant’s centre of interests): so Courts seised under the mosaic option under Article 7(2) BRR could not grant non-pecuniary remedies insofar as they related to internet publication.

The preceding paragraph reflected the parties’ understanding (and the generally held understanding) of Bolagsupplysningen and reflects how they advanced their cases at the hearing. However, shortly before I circulated this judgment in draft, the Court of Appeal considered Bolagsupplysningen in Mincione v Gedi Gruppo Editoriale Spa [2022] EWCA Civ 557. After circulating my draft judgment I received a helpful agreed note from counsel for the parties about the effect of Mincione. The lead judgment was given by Warby LJ, with whom Popplewell and William Davis LJJ agreed.

In summary, the Mincione decision includes a holding that the ‘rule in Bolagsupplysningen’ is not as broad as had been held (or conceded, or agreed, or assumed) in all domestic cases to-date. All previous decisions have read the CJEU in Bolagsupplysningen as saying that non-pecuniary remedies affecting publication on the internet were ‘in principle’ remedies which were ‘indivisible’ and as such could only be awarded by a court with global jurisdiction (ie, jurisdiction based upon a defendant’s domicile, or a claimant’s centre of interests).

This former understanding of the rule did not prohibit, for example, a court seised on the mosaic basis from granting an injunction (or order under s.12 DA 2013) by means other than publication on the internet (eg, by email, or by print, or by billboard): a claim for a non-internet injunction was permitted to proceed by Nicol J in Said v Groupe L’Express [2019] EMLR 9 at [63]-[66]. However, it was understood to mean that internet injunctions (or other relief concerning publication on the internet) were per se unavailable when the basis of jurisdiction was the mosaic basis under Article 7(2) BRR.

Warby LJ in Mincione disagreed, holding at [57]-[66] that if a non-pecuniary remedy affecting publication on the internet (ie, a prospective injunction against repetition of the defamatory statement, or presumably even a s 13 DA 2013) could be framed such that it only affected prospective internet publications in England and Wales (but not Scotland or Northern Ireland, or other parts of the world) by means such as geo-blocking (ie, a domestic internet injunction) that such a remedy was not prohibited as a matter of principle by the CJEU in Bolagsupplysningen.

However, ultimately Warby LJ dismissed the appeal in Mincione because, on the evidence available in that case, any such ‘domestic internet injunction’ would take effect on a UK-wide basis (as the facility identified by the defendant was not capable of geo-blocking England and Wales alone) and so have substantive effect in Scotland and Northern Ireland: [67]-[72]. Warby LJ dealt separately with the claim for a s.12 DA 2013 order at [73]-[77], which he considered could be capable of being ordered without having extra-territorial effect.

In the present case, the parties were agreed on the effect of Bolagsupplysningen (see [38] above), in accordance with the prior understanding that Mincione has now rejected. While the Defendants reserve their position as to whether or not Mincione is correctly decided, it is clearly binding upon me and the court’s order will reflect the judgment in Mincione.

Therefore, there are three possible outcomes to a jurisdiction challenge to an online libel claim brought under Article 7(2) of the BRR:

In Euroeco Fuels (Poland) Ltd v Szczecin Seaports Authority [2018] 4 WLR 133, [33], Nicol J summarised the position as follows:

“33.

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: (i) s/he can sue for all of the loss in the courts of the defendant’s domicile; (ii) s/he can sue for all of the loss in the courts of the member state in which s/he has his or her centre of interests; or (iii) s/he can sue in the courts of the member state where (according to the national law of that member state) the harmful event occurred, but in those circumstances s/he is limited to the harm which occurred in that member state. This last alternative is sometimes referred to as the ‘mosaic alternative’ because, to recover for all of the loss suffered, claims must be brought in more than one state.”

The burden of proof on both the First and Second Jurisdictional Questions falls upon the Claimants: see Saïd v Groupe L’Express [2019] ILPr 429, [44], following Canada Trust v Stolzenberg (No 2) [1998] 1 WLR 547, 555-559.

Notwithstanding that the burden of proof lay upon him, Mr Price for the Claimants was content for Mr Callus to address me first, with him replying.

The standard of proof on an interlocutory jurisdiction application is whether there is ‘a good arguable case’. The claimant must prove to this standard each element of the tort under Article 7(2) BRR in respect of each libel claim under the First Jurisdictional Question.

For many years, this standard was said to require the claimant to show that he had ‘a much better argument on the material available’. In Saïd Nicol J said at [44]:

“44.

As I have said, Mr Rushbrooke accepted that it was for the Claimant to establish that the Court had jurisdiction to determine the libel claim. He would discharge that burden if he could show a 'good arguable case' for his claim – see Canada Trust v Stolzenberg (No.2) [1998] 1 All ER 318, [1998] 1 WLR 547 CA. Sometimes this is equated with whether the Claimant has 'a much better argument on the material available' – see Four Seasons Hotel v Brownlie [2018] 1 WLR 192 (SC) at [7] and [33]. For the sake of simplicity, when I refer to the 'good arguable case' test, it should be understood as meaning no less than 'a much better argument on the material available.' It is not my function on such an application as this to conduct a mini-trial to decide the issues on the balance of probabilities.”

In Brownlie v Four Seasons [2018] 1 WLR 192, Lord Sumption's minority judgment at [7] (but with which Lady Hale (for the majority) appeared to agree at [33]) said:

“7.

An attempt to clarify the practical implications of these principles [viz, those relating to evidential standard applicable to jurisdictional facts] was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547. Waller LJ, delivering the leading judgment observed, at p555:

“‘Good arguable case’ reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i e of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.”

When the case reached the House of Lords, Waller LJ’s analysis was approved in general terms by Lord Steyn, with whom Lord Cooke of Thorndon and Lord Hope of Craighead agreed, but without full argument [2002] 1 AC 1, 13. The passage quoted has, however, been specifically approved twice by the Judicial Committee of the Privy Council: Bols Distilleries BV (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12, para 28, and Altimo Holdings, loc cit. In my opinion it is a serviceable test, provided that it is correctly understood. The reference to “a much better argument on the material available” is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. I do not believe that anything is gained by the word “much”, which suggests a superior standard of conviction that is both uncertain and unwarranted in this context.”

This formulation was then re-applied by Lord Sumption (for a unanimous Court) in Goldman Sachs International v Novo Banco SA [2018] 1 WLR 3863 at [9]. A good arguable case now means:

The three limbs of the Brownlie/Goldman Sachs test were the subject of detailed examination by the Court of Appeal (Green LJ, with whom Davis and Asplin LJJ agreed) in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] 1 WLR 3514, [57]-[79], [117], [118]-[119]. Davis LJ said at [119]:

“… it is sufficiently clear that the ultimate test is one of good arguable case. For that purpose, however, a court may perfectly properly apply the yardstick of “having the better of the argument” (the additional word “much” can now safely be taken as consigned to the outer darkness). That, overall, confers, in my opinion, a desirable degree of flexibility in the evaluation of the court: desirable, just because the standard is, for the purposes of the evidential analysis in each case, between proof on the balance of probabilities (which is not the test) and the mere raising of an issue (which is not the test either).”

In their Skeleton Argument, the Claimants advanced an argument based on Bolagsupplysningen that the test on the Second Jurisdictional Question (centre of interests) is a different one, namely, whether it is ‘clear from the evidence’ that a claimant has its centre of interests in the UK. However, in Napag Trading Ltd v GEDI Gruppo Editoriale Spa [2020] EWHC 3034 (QB), [32]-[33], [36]-[40], this submission as to a different evidential standard of proof was expressly rejected by Jay J, who held that the ‘good arguable case’ applied to the determination of the centre of interests of both natural and legal persons. He said:

“32.

Para 43 of the judgment of the CJEU [in Bolagsupplysningen] has given rise to some debate:

‘43. It is also appropriate to point out that, in circumstances where it is not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain member state, so that the centre of interests of the legal person which is claiming to be the victim of an infringement of its personality rights cannot be identified, that person cannot benefit from the right to sue the alleged perpetrator of the infringement pursuant to article 7(2) of Regulation No 1215/2012 for the entirety of the compensation on the basis of the place where the damage occurred.’

33.

This paragraph is not as clear as it might have been and something may be lost in translation (it is not clear whether the language of the case was English). Messrs Eardley and Callus submitted that the effect of this passage is to intensify the standard of proof to the extent that the First Claimant must satisfy me that it is clear that its "centre of interests" is England and Wales. It is further submitted that para 43 is per curiam (at least according to the headnote in the Official Law Report) and therefore part of the ratio of the decision. I cannot accept these submissions. Para 43 is not part of the ratio of the CJEU's judgment, not least because it does not directly address the questions the court had to answer and in view of the opening wording ("it is also appropriate to point out …"). In his masterly opinion Advocate-General Bobek, who I am sure was writing in English, did not touch on the issue of the standard of proof. That omission is hardly surprising, because this is a matter of national law and may depend on when the issue is being decided. In the context of this jurisdictional challenge, the court is making an interim finding, in effect answering the question: have the Claimants proved enough to pass through the door? In the context of the final hearing, should it take place, "centre of interests" would have to be determined definitively, applying well-established standards of proof. All that the CJEU was saying was that in the event that the national court concluded that it could not identify the "centre of interests" because the evidence was unclear, article 7(2) of the RBR could not avail the claimant. The CJEU was not saying that in a case where the legal person's registered office was in country X but it was being contended that its "centre of interests" was not that country, it was incumbent on that legal person to show by clear evidence that its "centre of interests" was in fact in country X.

…

36.

The first question is the standard of proof I should be applying to the resolution of this jurisdictional challenge. I have already pointed out that the Claimants do not require from me affirmative findings of fact, proved to the probabilistic standard, in order to win.

37.

The relevant principles are located in Four Seasons Hotel v Brownlie [2018 1 WLR 192, Goldman Sachs International v Novo Banco SA [2018 1 WLR 3683 and Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019 1 WLR 3514. I note in passing what Nicol J said about this issue at paras 43-44 of his judgment in Euroeco Fuels (Poland) Ltd v Szczecin & Swinoujscie Seaports Authority SA [2018 EMLR 21, but his reference to ‘a much better argument on the material available’ has been superseded.

38.

It is incumbent on these Claimants to establish a ‘good arguable case’. That applies across the board notwithstanding that the Second Defendant raises points on publication and that there has been no real or substantial tort committed within the jurisdiction. Mr McCormick submitted that the burden of proof in connection with these two matters is on the Second Defendant, but I am content to adopt the analysis of Nicol J in Saïd, at para 67, to the effect that it remains on the Claimants and does not shift. I share Nicol J's doubts as to whether what might be called quasi-Jameel arguments are apt to be raised under the umbrella of a challenge to jurisdiction.

39.

Goldman Sachs, as explained by the Court of Appeal in Kaefer, expounds a single test – that of ‘good arguable case’ – possessing three limbs. This is Lord Sumption's test (he was writing for the whole Supreme Court) in Goldman, at para 9:

"(i)

that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it."

40.

It is unnecessary for me to attempt a summary of Green LJ's detailed explanation [in Kaefer] of Lord Sumption. It is necessary to make the following brief points in response to the parties' submissions. First, ‘plausible evidential basis’ means more than ‘arguable’ and less than ‘probable’. It is a relative assessment of the position, on the basis of evidence which is perforce untested, comparing and evaluating the evidence adduced in writing by the Claimants and that adduced in riposte by the Defendants. The task of the court is to say where the better argument on the material available is to be found, not ‘much better argument’. If a plausible evidential basis does not exist, the inquiry ends there. Secondly, in performing this exercise it may be possible for the court reliably to take a view, ie, come to an interim conclusion, on the material available; and, if so, the court should do so. Thirdly, in the event that no such assessment can be made, because to make it would be unreliable (having regard to the nature and quality of the available evidence), the court will find that there is a good arguable case provided that it considers that there is a plausible albeit contested basis for that case. At this third stage the ‘better argument’ on the material available test continues to apply.”

Jay J took the same approach in Soriano v Forensic News LLC [2021] EWHC 56 (QB), [38], as did Tipples J in Mincione v Gedi Gruppo Editoriale Spa [2021] EWHC 2006 (Admin), [23] and Collins Rice J in Mahmudov, [37]. I will adopt the same approach.

The Defendants advance this application on the following grounds.

Ground 1: this Court has no jurisdiction over the claim in relation to publication within England and Wales because the Claimants cannot show to the requisite standard the elements of the tort of libel because: (a) apart from two of the Articles, they are not defamatory at common law; (b) further and in any event, the Claimants cannot show they have suffered serious harm as defined in s 1(1) and s 1(2) of the DA 2013 given, in particular, the small extent of publication in England and Wales and, in the case of the Second Claimant, the absence of any sufficient evidence of serious financial harm caused by publication in England and Wales.

Ground 2: further or alternatively, the Claimants cannot sue for damages in respect of global publication outside of England and Wales, unless England and Wales is a particular Claimant’s centre of interests (pursuant to the rule in eDate). The evidence does not establish that either Claimant’s centre of interests is England and Wales. This also means neither Claimant is entitled to any non-pecuniary relief. Hence, if either Claimant has a viable claim at all, it is limited to local damages caused by publication in England and Wales.

Ground 3: further or alternatively, insofar as this Court has jurisdiction under Article 7(2) BRR, and insofar as either Claimant proves to the requisite standard that the UK is its centre of interests (ie, either or both Claimants succeed on Grounds 1 and 2), any surviving claims would then embrace global publication on the internet but all of the Second Claimant’s claim and all of the First Claimant’s claim against the Second and Third Defendants would be barred by operation of Swedish Law.

Libel claims continue to be governed by the common law rule of double-actionability, meaning the publication complained of must be actionable under both lex fori (ie, English law) and the lex loci delicti (in libel, the law of the place of publication) (ie, Swedish law).

In the present case, between 85% and 90% of the Fourth Defendant’s Swedish-language publication is in Sweden, and less than 1% is in the UK. However, there has potentially been publication in all Member States and jurisdictions where the internet is available. Double-actionability would provide that English law (as the lex fori) would apply to the whole claim, but that each Member State’s law would apply to publication in that jurisdiction.

Swedish law will apply to these claims in one of two ways under this ground:

Because this is a case where all publication was in Swedish by Swedish defendants in respect of a Swedish natural-person claimant on the internet and the overwhelming majority of global publication took place in Sweden, the Defendants submit that this Court should apply Swedish law alone to the totality of the claims.

The Defendants rely on two propositions of Swedish law (which they say they will prove by expert evidence if not conceded by the Claimants) to establish that several of these libel claims are not actionable as a matter of Swedish law: (a) first, the rule that legal persons (who are not natural persons) do not have the capacity to sue in the tort of defamation at all; (b) second, the rule that – if available to be sued – a libel action must be brought against the media publisher (here the Fourth Defendant and/or its statutory responsible editor (here, the First Defendant), and cannot be brought against other persons (here the Second and Third Defendants) if either the First or the Fourth Defendant are available to be sued.

Hence, whether, and to the extent that, Swedish law applies under either the double-actionability Rule or the Chaplin v Boys exception: (a) it precludes the claim by the Second Claimant entirely; and (b) it precludes the claims by both Claimants against the Second and Third Defendants.

On behalf of the Claimants, Mr Price submitted as follows.

The Claimants’ overall contention is that the ‘sustained attack’ in the Articles upon their honesty and business practices has caused them reputational harm, and in the case of the Second Claimant, has caused it serious financial loss. They say in each case the harm is serious within the meaning of s 1 of the DA 2013.

The Claimants encapsulate the Defendants’ challenge to jurisdiction as follows:

The Claimants’ responses, in summary, are that:

The Defendants’ first ground of challenge to this Court’s jurisdiction is that the Claimants cannot make out, to the requisite standard, the elements of the tort of libel in relation to any of the eight Articles complained of. Those elements are: (a) publication by a defendant to third parties of the words complained of, who understood them in the language they were published; (b) that those words referred to the Claimants, and bore a defamatory meaning of them at common law; and (c) that the publication has caused or is likely to cause serious harm as defined in s 1 of the DA 2013.

I accept on the evidence that there has been some publication in this jurisdiction of the words complained of in a language which the reader understood. I will discuss the extent of publication later in relation to the question of serious harm.

I turn to the question of whether the Articles were defamatory at common law. A statement is defamatory at common law if it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do. In Allen v Times Newspapers [2019] EWHC 1235 (QB), [19], Warby J summarised the common law test as follows:

“(1)

At common law, a statement is defamatory of the claimant if, but only if, (a) it imputes conduct which would tend to lower the claimant in the estimation of right-thinking people generally, and (b) the imputation crosses the common law threshold of seriousness, which is that it '[substantially] affects in an adverse manner the attitude of other people towards him or has a tendency so to do’: Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB) [2011] 1 WLR 1985 [96] (Tugendhat J).

(2)

'Although the word 'affects' in this formulation might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence': Lachaux v Independent Print Limited [2015] EWHC 2242 (QB) [2016] QB 402 [15(5)].”

The time-honoured bane and antidote principle must also be borne in mind in deciding whether an article is defamatory. In Chalmers v Payne (1835) 2 Cr M & R 56, 159, Alderson B said:

“[If] in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together.”

Also, in relation to publications containing a headline and text, in Spicer v Commissioner of Police for the Metropolis [2019] EWHC 1439 (QB), [18], Warby J explained:

“Headlines commonly feature in bane and antidote arguments. Experience shows that there is quite often a disconnect between a headline and the body of an article. One reason for that may be that many headlines are written by editors or sub-editors, who aim for something eye-catching and may be less familiar with the nuance of the text than its author(s). A headline can create a libel, even if the text contains none: see Gatley on Libel and Slander 12^th ed para 3.30, text to n 349. That is especially so, when one bears in mind the (reasonable) tendency of ordinary readers to give weight to that which is most prominent, and most negative. But there are cases in which the text neutralises what would otherwise be a libel in the headline - the headline being the poison, to which the body of the article provides the antidote.”

The Defendants first invite me to conclude, without formally determining meaning in accordance with the principles in, for example, Koutsogiannis v The Random House Group Limited [2020] 4 WLR 25, [11]-[13], and Stocker v Stocker [2020] AC 593, [41]-[45], that none of the Articles bears a meaning that is defamatory at common law. Mr Callus described the defamatory meaning of the Articles pleaded by the Claimants as being ‘over-juiced’.

The Defendants make the general point that the Articles are not particularly clearly translated. The translations are not agreed or conceded by the Defendants to be accurate. They point out, for example, that the headline of Article 1 is translated differently in the Annex to the PoC (‘Review: The Cindrigo-sellers’ connection with Falcon Funds and Amarant Mining’) as compared with the body of the PoC itself at [10(i)] (‘Investigation: Cindrigo sellers’ links to Falcon Funds and Amaranth Mining’). They say it would appear that in most cases the translation has not been done professionally but by Google Translate. The Defendants say they will rely on this failure to produce proper professional translations of the words and that any ambiguity arising from the poor quality of the translations ought to be resolved in their favour for the purposes of determining the pleaded defamatory meanings.

It seems to me that I simply have to work with what I have been supplied with in the form in which it has been supplied, and determine the parties’ submissions in light of that material. In so saying, I do bear firmly in mind that this is not a trial of meaning.

Beginning with Article 1, the Defendants say that the Claimants do not have a good arguable case that it bears the defamatory meaning pleaded at [11] in the Particulars of Claim:

“(i)

The First Article: ‘Investigation: Cindrigo sellers' links to Falcon Funds and Amaranth Mining’

11.

In their natural and ordinary meaning, the words complained of in the First Article meant and were understood to mean that the Claimants are part of a criminal network involved in so called ‘ecocrime’, by which members profit from the fraudulent marketing and sale of bogus or valueless supposedly ecologically ethical investments, and as part of this criminal activity both have received unlawful payments from associates of Johan Ulander, who is on trial for aggravated fraud.”

The Defendants say this article identifies a number of individuals involved in marketing shares in Cindrigo and draws attention to those individuals’ alleged involvement in ‘high-profile eco-crime scams’. But the Defendants say the Article does not allege that either the First Claimant (who is named) nor ‘Eco Energy World’ (the company referred to) are said to have been involved with or connected to these ‘scams’. By contrast, the Article is clear as to which individuals are said to be involved. Hence, say the Defendants, Article 1 does not accuse either Claimant of being involved in, or part of, a criminal network. The way Mr Callus put it orally was this:

“The problem that this causes for the claimants, we say, is not the belief that they are somehow perpetrators of any scam, but the harm that gets caused, as we will come on to see, is the very fact that their shares were being traded. That causes them particular problems but not from the defamatory meaning of the words.”

Even without formally determining meaning, I am not persuaded that the Claimants have a good arguable case that this Article is defamatory at common law. Although below the headline there are the words:

“The corporate network working on the sale of shares in Cindrigo in connection with the stock exchange listing have also sold shares in several other companies. Realtid's Per Agerman and Annelie Ostlund's review shows that individuals in the network are involved in high-profile eco-crime scams”

there is only a passing reference in the Article to the First Claimant, who is not identified as a member of the said ‘network’ and is not, on my reading, accused of any wrongdoing by being connected to the alleged ‘scams’, or otherwise. Not only that, as I read it, the Article says nothing at all about his knowledge of or participation in the alleged misconduct of others named in the piece. The Article is clear about who is said to have been involved, some of whom are named and some of whom are not.

There is no clear reference at all to the Second Claimant (simply a reference to ‘British Eco Energy World’ and ‘EEWorld’, and it is likely be understood by a reasonable reader to refer to a trading company (the Second Claimant is a holding company). Whilst Pareto is mentioned, and the company is said to be raising capital in conjunction with it, I agree that reference could only realistically be established if publication was to a third party who knew that the Second Claimant was the relevant group company with respect to Pareto. No reference innuendo is pleaded.

Overall, what appears to be being said is that a British company connected to one of the individuals allegedly involved in a ‘scam’ completed transactions with the First Claimant, and that shares in ‘British Eco Energy World’ were marketed by someone connected to ‘one of Peter Lindh’s shareholder colleagues’ and a company run by ‘Thony Norelli’ (sic). I do not consider there to be a good arguable case that a reasonable reader would infer, from those assertions, that either the First Claimant’ or ‘Eco Energy World’ had knowledge of, or were complicit in, their alleged illegality.

Hence in relation to Article 1, I accept the Defendants’ submission that it says nothing at all about the Claimants’ knowledge of or participation in the alleged misconduct of others named in the piece.

The pleaded defamatory meaning of Article 2 is at [12] of the PoC:

“(ii)

The Second Article: ‘Question marks over Pareto's new major customer EEW’

12.

In their natural and ordinary meaning, the words complained of in the Second Article meant and were understood to mean that the Claimants (the First Claimant himself and the Second Claimant through the First Claimant) have lied about marketing shares in Sweden, and sought to cover up that activity by instructing people to delete incriminating material from the internet, and instructing lawyers to suppress legitimate investigation and reporting about it.”

The Defendants do not accept that the Claimants have a good arguable case that the Article bears this meaning. They say that, at the highest, this Article raises the possibility that the Claimants have been untruthful in their denials of involvement in the marketing of shares by a third-party reseller in Sweden, and so the imputation could not properly be pleaded above Chase level 3 (reasonable grounds for investigation) or perhaps Chase level 2 (reasonable grounds to suspect. In those circumstances, they say it is doubtful that the allegation reaches the Thornton threshold of seriousness.

I am satisfied the Claimants have a good arguable case that this Article is defamatory at common law. First, I note the Defendants do not say this Article could not reasonably be read as referring to the Second Claimant (as opposed to another company in the group). No doubt that is because ‘EEW Eco Energy World PLC’ is specifically named. On my ‘light’ reading of this Article (ie, without formally determining meaning), the overall message it conveys is that different stories are being told by, for, and on behalf of the Claimants about the marketing of shares, and other matters, and that there have been coverups and wrongdoing. The First Claimant is named as being involved in the disposal of shares. For example, there is the sentence under the heading ‘Who is selling shares?’, ‘The marketing of EEW shares to Swedish investors in 2019 and 2020 is a sensitive area. According to the lawyers, this didn’t happen. When we continue our research, we find several pieces of evidence to the contrary’. There is then a reference to material being deleted.

A reasonable reader would understand lawyers act on instructions, and therefore that what the Article is saying is that what the lawyers were being told by their clients was not true (especially, as I have said, because the First Claimant is named as being personally involved in the disposal of shares). It is quite right, as the Defendants point out, that the Article expressly states the authors did not know who deleted the material. However the plain inference can be drawn it was a person or persons connected with the Second Claimant. I am satisfied, overall, that this Article passes the Thornton test.

The pleaded meaning of Article 3, headlined ‘Why we are publishing the investigation into EEW despite threat of legal action’ is that:

“… the words complained of in the Third Article meant and were understood to mean that the First Claimant is seeking to hide his misconduct by hiring lawyers to suppress any and all investigation or reporting about him.”

This Article is not subject to a claim by the Second Claimant.

The Defendants deny that the First Claimant has a good arguable case that Article 3 bears this meaning (or any common law defamatory meaning). They say there is nothing in this article which suggests Realtid are investigating misconduct by the First Claimant. By contrast, they say the factors which are said to prompt the investigation in the introductory and sixth paragraphs (for example, ‘a complex corporate structure’, ‘a Nordic corporate finance heavyweight’) are essentially anodyne and not indicative of misconduct at all. They say there is nothing disreputable, per se, in hiring lawyers and making legal threats to try to prevent publication. An individual might be publicity shy for reasons of personal privacy, or because they feel coverage adds an unwelcome distraction to or is disruptive of their commercial activities, or for other good reason.

I agree with the essential thrust of the Defendants’ submission. I agree that the pleaded defamatory meaning could only be arrived at in the mind of a reasonable reader by inferring that the only reason the First Claimant might have for not wanting publicity is because he is engaged in wrongdoing. But it seems to me that is obviously not the only inference open to the reasonable reader, as the Defendants submit, and it would be wrong to conclude that that is the meaning she would settle on. As was said in Koutsogiannis, [12(iii)]:

“The hypothetical reasonable reader is not naïve but he is not unduly suspicious … he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.”

Hence, there is no reason why (particularly where the Article is explicit that Realtid is not alleging any criminality – ‘And no, Realtid is not claiming anywhere that anyone is doing anything criminal. Realtid is describing a complex corporate structure and a very large capital raising’) that a reasonable reader would opt for the defamatory meaning where other non-defamatory meanings are available.

Overall, it seems to me that this Article is simply a defence of journalism and journalistic practices and in particular Realtid’s work on this matter. I agree with Mr Callus’ characterisation of this Article orally:

“The third article, our submission, is not defamatory at common law at all. It does not link to the other articles. It is literally just an editorial by the First Defendant, who is the editor in chief, saying ‘We have been threatened with legal action, but we think this is really important and in the public interest.’”

The Fourth Article is headlined, ‘EEW’s Swedish solar sellers’ then, underneath:

“Since at least the start of 2019, shares in EEW Eco Energy World have been marketed to Swedish investors. However, the company now denies any involvement and documents are now being deleted from the internet. Read the second part of Realtid’s review.”

The defamatory pleaded meaning is that this Article alleged that:

“… the Claimants are falsely marketing existing shares in the Second Claimant as if they were new shares issued as part of an imminent or intended public listing when they were not, and using falsely inflated valuations based upon the Second Claimant's own internal management accounts and forecasts dressed up to look independent;

b.

the Claimants are part of a network of shady businessmen and bankrupt businesses; and

c.

the Claimants have sought to dishonestly cover the tracks of their misconduct by deleting material from the internet and issuing false denials.”

The Defendants do not accept that the Claimants have a good arguable case that this Article bears this pleaded defamatory meaning. The article reports that a number of third parties (principally Lars Nicholls and his company Elln Invest) have marketed shares in the Second Claimant to Swedish investors. The Article reports that lawyers for both Claimants have denied that they are involved in or associated with such promotions. The Defendants say that nowhere in the Article is it said that those denials were false or dishonest. The Article says that on two occasions where Realtid had asked questions of individuals claiming to be working with the Claimants in the marketing of shares, information was deleted from the internet. However, the Defendants say that is equally consistent with their recognising that the statements were false, as with the Claimants being conspirators in a dishonest cover-up as pleaded.

The Defendants accept that the number of examples of third party selling, and the suggestion that the website Börsvärlden had access to non-public information about Pareto’s involvement at the time its article was published, raises questions about whether the Claimants may know more about the activity of these individuals than is suggested in their denials. However, they say the reasonable reader would not go from there to an allegation of guilt of direct involvement in the false marketing of shares, nor to a conclusion that the Claimants’ denials were dishonest. They say that at most, the Article suggests there are grounds to investigate whether the Claimants are knowingly involved in the promotions described.

Again, I cannot readily read the Article in the way suggested by the Claimants. It is not wholly easy to follow mainly because of the poor quality translation but there are clear denials in the Article by the First Claimant that ‘there is no collaboration or agreement’ about the marketing or sale of EEW shares, and there are other denials eg, ‘Svante Kumlin’s lawyers say this is a false statement …’ and ‘…Svante Kumlin and EEW again deny via their lawyers that any marketing of EEW shares has taken place. The information available and reported above and in a previous article is rejected as false information.’ I agree the not overly-suspicious reader would not conclude from these Articles that the Claimants have been involved in the pleaded wrongdoing; that their denials are false or dishonest; or that they are part of the pleaded ‘shady’ network. The overall meaning conveyed by this Article is that marketing of EEW shares may have gone on, and offers made, but these have not been authorised by the First Claimant or the company, which through its lawyers have denied any connection or authorisation.

The Fifth Article is headlined, ‘After Realdtid’s investigation – Pareto asks Svante Kumlin questions about EEW’. Underneath, the Article states:

“The Norwegian investment bank Pareto Securities has asked for information on the sale of shares in EEW to Swedish investors. In addition, Pareto states that the financing project with a value of 6 billion has not yet been formally approved.”

The pleaded defamatory meaning of this Article is that:

“… the words complained of in the Fifth Article meant and were understood to mean that there are strong grounds to suspect that the Claimants (the First Claimant himself and the Second Claimant through the First Claimant) have dishonestly not disclosed to Pareto Bank that they (the Claimants) have been marketing shares in the Second Claimant in Sweden.”

The Defendants submit that the claim that this Article imputes dishonesty to either or both Claimants is not arguable. They say the Article simply reported that Pareto had asked the First Claimant to comment on information contained in other articles published by Realtid about EEW shares sold in Sweden by third parties. The Defendants point out that those articles do not form part of the words complained of in respect of this Article and there is no innuendo meaning pleaded.

My reading of this Article is that it reports that following earlier Realtid articles about EEW, Pareto had sought clarification from the First Claimant about the position regarding the marketing of the shares. The central concern appears to have been that the shares were being marketed on the basis that EEW had actually arranged financing with Pareto, and an IPO was imminent, when in fact the process was still ongoing and had not been completed. There is reference to an assertion by Lars Nicholls at a meeting to the effect that financing had been arranged and an IPO was imminent (‘Pareto is working on the capitalisation … the goal is to list the company on the Oslo Stock Exchange during the month of November, Lars Nicholls explained …’). However the Article went on to say:

“Via their lawyer in London, EEW has denied on repeated occasions that any marketing of EEW shares is ongoing, to the company’s knowledge. Accordingly, we cannot confirm that Lars Nicholls’s statements are correct. It has not been possible to reach Lars Nicholls for a comment, despite repeated enquiries …

EEW states that the company cannot provide any further details about the Pareto-project at this stage. Henry Wilson at the British PR agency Buchanan writes in a message to Realtid:

“The preparations for the public listing is comprehensive in a transaction of this nature. We cannot provide an update on financial close (sic) at this stage but is also proceeding as planned during Covid-19 capital markets.”

The Article does not assert that the Claimants are actually involved in the selling of these shares whilst denying doing so to Pareto: their ’repeated’ denials are reported, and the Article acknowledges that its authors cannot know whether what had been said by Mr Nicholls in his sales pitch was true.

In light of the approach I set out earlier, in my judgment it would not properly be open to the reasonable reader to imply from the fact that Pareto was requesting answers from the First Claimant, that he or the Second Claimant had been dishonest by culpable non-disclosure to Pareto. Whilst the Article does make clear that Pareto were not aware of the share sale – hence its desire to put questions to the First Claimant - the overall impression created by this Article is of confusion and uncertainty. I reject the contention there is a good arguable case that this Article is defamatory at common law.

The subject matter of the Sixth Article, as Mr Callus observed, sits slightly apart from the other Articles. It is headlined ‘EEW: EKN, Swedbank and the dispute about the guarantee’. The sub-headline is:

“Eight years after the bankruptcy of Eco Suppliers, Swedbank and the National Exports Credit Guarantee Board are still waiting for money from Svante Kumlin. The dispute about a personal guarantee of SEK 20 million is ongoing in a Swedish court, and a final judgment is a long way away.”

The pleaded defamatory meaning is this this Article alleged:

“In their natural and ordinary meaning, the words complained of in the Sixth Article meant and were understood to mean that the First Claimant has, through a series of sham and otherwise dubious transactions, successfully hidden assets from liquidators and improperly withheld monies due to the Swedish Credit Agency, thereby defrauding creditors of companies in the First Claimant's now defunct EOS Group, leaving them out of pocket to the tune of tens of millions of Swedish Krone.”

The Defendants accept for the purpose of this application (Skeleton Argument, [77]), but without prejudice to arguments they may wish to raise later, that the pleaded meanings in relation to the First Claimant are arguable. This Article is not the subject of a claim by the Second Claimant.

The Seventh Article is headlined, ‘How EEW shares can be spread without authorisation from FI’. The sub-headline is:

“They call themselves corporate finance firms and financial consultants, and spread shares in unlisted companies such as EEW and Cindrigo. However, none of them are authorised by Finansinspektionen and the regulations designed to protect investors do not apply.”

I understand Finansinspektionen to be the government agency responsible for financial regulation in Sweden. It is responsible for the oversight, regulation and authorisation of financial markets and their participants.

The pleaded defamatory meaning is that this Article meant and was understood to mean that:

“… the First Claimant has knowingly permitted the marketing and sale of shares in the Second Claimant through unlicensed Swedish brokers to Swedish investors, which is illegal in Sweden and poses a significant risk to investors; and that he has knowingly permitted the marketing of such shares on the false basis that the Second Claimant would soon be undertaking an IPO.”

The Defendants deny this Article carried this, or any, defamatory meaning in relation to the First Claimant. There is no claim by the Second Claimant in relation to this Article. They say the Article says nothing about the First Claimant’s knowledge of the marketing of the shares, and that its focus is ‘squarely’ on third party brokers who claim to have obtained shares from the First Claimant. The inference to be drawn from the Article, therefore, is that any responsibility for any breach of law is theirs, and not the First Claimant’s.

I agree with the thrust of the Defendants’ submission. The First Claimant does not have a good arguable case that this Article is defamatory at common law. There are a number of points. Firstly, I agree the focus of the Article is on the activity of named third parties who have either acquired EEW shares or else (as it is translated) have ‘spread information on EEW … in the Swedish market’. These are Elln Invest; Repairasgus; Eder Fövaltning; Global Crowdproject; Alpha Nordic; Raise Reach by Sprinkle (sic) (including by Aktiebladet); and Finanspro Sweden. There is no direct accusation that the First Claimant was involved in, or authorised, their activities. Second, whether their activities are, in fact, illegal seems to be an uncertain issue. The Article sets out quotes from the Swedish regulator which do not unequivocally assert that the law has been broken. Claims by the third parties that what they have done/are doing is legal are also reported.

In my judgment, the quotation from the website Börsvärlden is not a sufficient basis for the pleaded meaning. The website stated that ‘The principal shareholder [ie, the First Claimant] is seeking to widen the shareholder base in connection with the future public listing by more than doubling the current 240 shareholders …’. Firstly, even if this might properly be interpreted to refer to the First Claimant’s involvement in third-party share sales – the bane - it is met by the ‘antidote’ in the footnote:

“Svente Kumlin and EEW have explained via their lawyers that the article in Börsvärlden is untrue and that the information therefore is partly incorrect. According to the lawyers, Svante Kumlin has neither participated in any interview, nor does he have any knowledge about the article. According to the company, there is no agreement to disperse the EEW share to Swedish investors who have been approved by the company.”

Second, it would not, in any event, follow that the First Claimant must know that the method of selling the shares was unlawful where the comments from Magnus Bjorkman, the Deputy Director of Finansinspektionen, demonstrate, as I have said, that there is uncertainty over the legal position.

Finally, the Eighth Article is headlined ‘EEW: The loans and the internal deals’ and sub-headlined:

“EEW and Pareto plan to raise 6 billion for a new solar energy company, but already one year ago, EEW had access to a large financing packing through a bond raised via a company formed especially for this purpose. What really happened subsequently? When Realtid started asking questions, information about the bond was deleted from EEW’s website and nobody was willing to answer questions.”

The defamatory pleaded meaning in [18] of the PoC is that the words complained of:

“… meant and were understood to mean that the Claimants have been involved in a series of shady deals intended to profit the First Claimant, including by artificially inflating the value of his assets, and they have sought to cover the tracks of that misconduct and frustrate the Defendants' investigation of it by deleting material from the internet.”

For the purpose of this application, the Defendants accept (Skeleton Argument, [81]) that this Article arguably bore the meaning of a sort contended for by the Claimants, save that they will contend that meaning cannot be higher than Chase level 2 (reasonable grounds to suspect).

In summary, therefore, I conclude that the Claimants have established a good arguable case that Articles 2, 6 and 8 are defamatory at common law, but I reject their pleaded case in relation to the other Articles.

I turn to the question of serious harm. The Defendants said this was likely to be the ‘main battleground’ in relation to Ground 1. Given the Defendants have conceded at least two of the Articles to be defamatory at common law, that is probably right. Notwithstanding those concessions, the Defendants maintain that the Claimants cannot show a good arguable case on serious harm and hence there are no actionable claims.

The requirement for serious harm was added to the ingredients of a defamatory statement by s 1 of the DA 2013, which provides:

“(1)

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2)

For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”

In Monroe v Hopkins [2017] EWHC 433 (QB), [23(4)], Warby J succinctly explained the effect of s 1 as follows:

“This provision … means that it is not enough to prove that a statement had a defamatory tendency. A claimant must prove as a matter of fact that their reputation suffered, or is likely to suffer, serious harm as a result of the publication complained of.”

In Napag Jay J said:

“41.

The second issue concerns ‘serious harm’ within s.1 of the Defamation Act 2013. It is common ground that this has intensified the common law and requires proof of harm which is actually or likely to be serious rather than proof of substantial harm and a tendency to cause it. ‘Serious harm’ may be established by inference from such matters as the extent of the publication, the gravity of the allegation, and whether the statement was read by people who knew the claimant or will come to know him in the future.

42.

These basic principles are well-established following the decision of the Supreme Court in Lachaux v Independent Print Ltd [2020] AC 612. This was an authority on s 1(1) and not on s 1(2) of the 2013 Act, which provides:

…

In my view, all that sub-s.(2) does is to state that in the case of an entity trading for profit (eg, these corporate Claimants) there is no ‘serious harm’ unless the publication at issue has caused or is likely to cause ‘serious financial loss’: in other words, the ‘serious harm’ threshold is intensified.”

The principles relating to serious harm were recently summarised by Richard Spearman QC sitting as a Deputy High Court Judge in Hills v Tabe [2022] EWHC 316 (QB), [19]-[23], from which the following is gratefully adapted. I do not think any of them is controversial.

Lord Sumption explained in Lachaux v Independent Print Ltd [2020] AC 612, [14], that whether a statement has caused serious harm falls to be established ‘by reference to the impact which the statement is shown actually to have had’, and that, in turn, ‘depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’. Further, as appears from [16] of his judgment, in light of the wording of s 1(1) of the DA 2013, a statement may not be defamatory even if it amounts to ‘a grave allegation against the claimant’ if (for example) it is ‘published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed.’ He said:

“16.

Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”

At the same time, as has often been said, the assessment of harm of a defamatory statement in not simply ‘a numbers game’: Mardas v New York Times Co [2009] EMLR 8, [15], per Eady J. Indeed. ‘reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement to one person’: Sobrinho v Impresa Publishing SA [2016] EMLR 12, Dingemans J at [47].

That said, the scale of publication in this jurisdiction – even if non-zero, such that the Claimants succeed in proving a ‘good arguable case’ that there has been some publication in England and Wales - whilst not determinative, is a relevant factor in the assessment of the likelihood of serious harm or serious financial loss being caused by publication in this jurisdiction. In Napag at [96]-[97], Jay J said:

“96.

My conclusion on the issue of publication is as follows. The Claimants have a good arguable case that there was limited publication of these four articles in England and Wales although the number of visitors to the Second Defendant's website who actually read as far as they would need to have done to receive mention of the Claimants was probably confined to a handful. The case on innuendo meaning in relation to the Second Claimant (see the first, third and fourth articles) has not been made out to the requisite standard. The case on publication against the Second Claimant is therefore limited to the second article.

97.

Although the Claimants have got the better of the argument on the issue of publication – to the modest extent that I have set out – the fact remains that it was very limited, both in absolute and relative terms. This is highly relevant to the issue of ‘serious harm’.”

Other points which arise from the Sobrinho case include the following:

“46  …. [F]irst … ‘serious’ is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant's reputation …

47.

Secondly, it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious has occurred or is likely to do so. However, a Court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence …

48.

Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant, compare Ames v The Spamhouse Project [2015] EWHC 127 (QB) at [55]. This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence.”

In Doyle v Smith [2019] EMLR 15, [116], Warby J cited these passages with approval at [116]. He went on to emphasise the importance of the point about inference, and (among other things) approved at [117] the following words of HHJ Moloney QC in Theedom v Nourish Training (trading as CSP Recruitment) [2016] EMLR 10:

“Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.”

Although the Supreme Court stated the law differently from the Court of Appeal in Lachaux v Independent Print Ltd [2018] QB 594, the following passages from the judgment of Davis LJ are consonant with the correct legal analysis of s 1 as set out in the judgment of Lord Sumption:

“72.

… serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning … there is no reason in libel cases for precluding or restricting the drawing of an inference of serious reputational harm derived from an (objective) appraisal of the seriousness of the imputation to be gathered from the words used.

73.

… The seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog).

79.

There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no one thought any the less of the claimant by reason of the publication …"

In Dhir v Saddler [2018] 4 WLR 1, [55] Nicklin J said at [55]:

Drawing the threads together, in Riley v Murray [2021] EWHC 3437 (QB), [34], Nicklin J set out the approach by reference to what was said in Turley v Unite the Union [2019] EWHC 3547 (QB), [107]-[108]:

“[107] … The Supreme Court [in Lachaux] held:

(i)

s.1 raised the threshold of seriousness above the tendency of defamatory words to cause damage to reputation; the application of the test of serious harm must be determined ‘by reference to actual facts about its impact and not just to the meaning of the words’: [12]-[13].

(ii)

Reference to the situation where the statement ‘has caused’ serious harm is to the consequences of publication, and not the publication itself [14]:

‘It points to some historic harm which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.’

(iii)

Reference to the situation where the statement ‘is likely to cause’ serious harm was not the synonym of ‘liable to cause’ in the sense of the inherent tendency of defamatory words to cause damage to reputation: [14].

(iv)

The conditions under s.1 must be established as facts [14] and ‘necessarily calls for an investigation of the actual impact of the statement’: [15]; a claimant must demonstrate as a fact that the harm caused by the publication complained of was serious [21].

(v)

If serious harm could be demonstrated simply by the inherent tendency of statements to damage reputation, little substantive change would have been effected by the Act [16]:

“The main reason why harm which was less than serious had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”

(vi)

A claimant may produce evidence from publishees of the statement complained of about its impact on them, but his/her case does not necessarily fail for want of such evidence; inferences of fact as to the seriousness of harm done to reputation may be drawn from the evidence as a whole [21].

(vii)

In Mr Lachaux’s case, the finding that serious harm had been proved was based on a combination of (a) the meaning of the words; (b) the situation of the claimant; (c) the circumstances of publication; and (d) the inherent probabilities.

(viii)

A judge’s task is to evaluate the material before him/her and arrive at a conclusion, recognising that this is an issue on which precision will rarely be possible [21].

(ix)

The judge can consider the impact of the publication upon people who do not presently know the claimant but might get to know him/her in the future [25].

[109] Finally, and consistently with Lord Sumption’s analysis in Lachaux there are three further relevant principles:

“… the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.”

(ii)

It is well-recognised that a claimant may struggle to identify, or to produce evidence from, all those to whom an article was published and in whose eyes the claimant’s reputation was damaged: Doyle v Smith [2019] EMLR 15 [122(iv)]; Sobrinho v Impresa Publishing SA [2016] EMLR 12 [48]; Ames v Spamhaus [2015] 1 WLR 3409 [55].

(iii)

Assessment of harm to reputation has never been just a ‘numbers game’: ‘one well-directed arrow [may] hit the bull’s eye of reputation’ and cause more damage than indiscriminate firing: King v Grundon [2012] EWHC 2719 (QB) [40] per Sharp J. Very serious harm to reputation can be caused by publication to a relatively small number of publishees: Sobrinho [47]; Dhir v Sadler [2018] EWHC 2935 (QB) [55(i)]; Monir v Wood [2018] EWHC 3525 (QB) [196].”

I also bear in mind what was said in Sube v News Group Newspapers [2018] 1 WLR 5767, [22], [31], that, generally and absent some special closeness or ‘inter-weaving’ of articles, imputations in separate articles cannot be ‘added together’ to produce serious harm; the effect of each article must be assessed separately.

The Claimants point out that a plea of special damage is not a necessary component of serious harm for the purpose of s 1(2): see Lachaux, [15], where Lord Sumption explained that the financial loss envisaged in s 1(2) is not the same as special damage, in the sense in which that term is used in the law of defamation. Section 1 is concerned with harm to reputation, whereas special damage represents pecuniary loss to interests other than reputation.

By way of introduction, Mr Price said:

“We have provided evidence that there was readership here, readership important to the individual claimant, because they are known to him and do business with him, and that it has caused him prejudice. He does not have to prove any particular kind of loss. If there is going to be an issue about whether or not he, on the balance of probabilities, can establish serious harm, that will have to be held over for the substantive action.”

The Claimants’ case on serious harm is as follows. First, the allegations are serious, including fraud. Second, publication, however limited it was in this jurisdiction, was to people known to the Claimants, and/or to potential business partners or their potential agents. They rely on the First Claimant’s first witness statement at [54]-[57], where he makes a number of points, including that the relatively low number of hits for the Articles as reported by Google Analytics (and evidenced in the Defendants’ solicitor’s (Mr Cowper-Coles’) witness statement) does not necessarily reflect the readership because many businesses employ agencies to sweep the internet for stories which are then reported to them; hence one hit may in fact lead to the Article being read by many people. He also says that there will have been a ‘grapevine’ effect, and that the solar industry is small and niche and therefore information (including the Articles) is likely to be readily shared by those in the field. The Claimants rely on evidence from an anonymous investment banker reported to the Claimants’ solicitor Mr Thompson, and contained in a witness statement from him, to the effect that the publicity in the Articles ‘could be very damaging’ for the First Claimant and his businesses.

Specifically in relation to the extent of publication in this jurisdiction, the Claimants say that the Defendants do not have specific figures for readership of each Article, but have determined that the Website attracted c 3,700 visitors from England and Wales in the relatively short relevant period. I will set out Mr Cowper-Coles’ evidence on the extent of readership later, but the Claimants say that evidence is ‘purely speculative’. They say that that the Defendants’ campaign against the Claimants became something of a cause célèbre for Realtid, and the Claimants invite the inference that the readership figures offered by the Defendants are unrealistically low, given the attention paid to the Articles by the Defendants. They say that the precise extent of publication will be a matter for proper disclosure and if necessary expert evidence in due course, but that for present purposes I can properly conclude there was sufficient publication that, coupled with the seriousness of what is alleged in the Articles, there is a good arguable case on serious harm.

They say that very serious financial harm has been suffered by the Second Claimant. They rely on the First Claimant’s first witness statement at [33]-[46], where he asserts that the mandate agreement with Pareto was terminated by Pareto as a result of the Articles, with the consequence that the Second Claimant suffered serious financial harm.

The Claimants also rely upon evidence in relation to serious harm from Jakob Kinde and Iek van Cruyningen.

Mr Kinde has had a long career in the City in various capacities, including the renewables sector. He says that the allegations made in the Articles are potentially very damaging and that news travels fast in what is a small industry, and that the material in the Articles would be picked up on due diligence in any event. He said that he had heard from contacts in Sweden that there are rumours in Stockholm that EEW is a fraudulent company and these are based entirely on the Realtid articles.

Mr van Cruyningen works for a merchant bank in London. His bank was considering an engagement with EEW Group in January 2021. They involved another finance house, Peterhouse Corporate Finance, who discovered the Articles when conducting due diligence. They drew Mr van Cruyningen’s attention to them. They caused him concern. He sought, and received, reassurance from Mr Kinde, but goes on to say that they are the sort of material which would be uncovered on due diligence.

In addition, in relation to wider publication, in his first witness statement at [49], the First Claimant says ([49]):

“Philip Hale and Pepa Tinkova [who work for a company in the EEW Group] are both based in England and Wales and have spoken with me regarding the articles and how this could impact on our business, and in particular its impact on future projects, any listing or fund raising. Both Pepa and Philip were contacted by the Guardian newspaper regarding the matter and in his discussion with me Philip raised concerns as to how damaging the articles published by Realtid were.”

Mr Callus made a point about the word ‘based’ and said it was to a degree ambiguous, but I accept the broader point being made that this shows a degree of percolation of the Articles in this jurisdiction.

The Claimants therefore say that they have more than met the requirement for a good arguable case on the question of serious harm.

In response on this issue, the Defendants rely on the limited number of ‘hits’, as reported by Mr Cowper-Coles. His evidence and methodology is set out in his first witness statement at [12]-[14]. In broad summary, taking the numbers from Google Analytics: (a) he took the unique number of 'page views' globally for each Article complained of; (b) he multiplied that figure by 0.0085 (0.85%) to obtain the approximate number of unique page views of each article in the UK (the figures showing that only 0.85% of visitors to the Website were from the UK); (c) multiplying the approximate number of unique page views in the UK by 0.8433 (84% of viewers in the UK being in England and Wales) to obtain the approximate number of unique page views in England and Wales.

Having done this exercise, Mr Cowper-Coles produces the following figures for unique page views: the First Article, 20.68; the Second Article, 41.47; the Third Article, 24.06, the Fourth Article, 20.82; the Fifth Article, 14.50; the Sixth Article, 14.87; the Seventh Article, 12.66; the Eighth Article, 8.09.

Mr Cowper-Coles says these figures may overestimate the number of readers, in that some people may have accessed the Articles on two different devices with different IP addresses (registering more than one hit), or they may include people connected with the Claimants who would not be adversely influenced by the Articles.

The Defendants therefore submit that given the small-scale publication in this jurisdiction, and the fact that only the inherent severity of the alleged defamatory meanings (which are described as ‘overblown’) is relied upon, the First Claimant has not shown a good arguable case, or the better of the argument, on serious harm.

I turn to my conclusions on serious harm. Mr Callus said the First Claimant’s case on serious harm was ‘weak’ and ‘fanciful’. I do not agree.

So far as the First Claimant is concerned, I am satisfied that he has shown at this stage that he has a good arguable case on serious harm, assessing each defamatory Article separately. I base that finding mainly on the straightforward basis that the Articles which I have found to be defamatory have a tendency to cause actual harm to the First Claimant's reputation in the eyes of third parties of a kind that would be serious for him because of the nature of what is alleged.

The Articles in question contain serious allegations of wrongdoing, including defrauding creditors, misconduct, ‘sham transactions’, ‘shady deals’, and destroying and deleting evidence. For any businessman, such allegations are extremely serious and are likely to cause serious harm. They fall into that category of defamatory imputation from which it can readily be inferred as a matter of fact even in the absence of evidence that serious harm is likely to be caused. In general, people do not do business with people who they think may be dishonest. It can readily be envisaged that they could result, for example, in potential counter-parties being not willing to do business with him, or banks not willing to lend, or in deals being cancelled.

I broadly accept the Defendants’ evidence that the number of views according to Google Analytics of the various Articles may have been comparatively small. Mr Price used the word ‘slight’. But equally I accept the Claimants’ evidence that the figures produced by Mr Cowper-Coles may well underestimate the extent of the Articles’ readership. I do not consider at this stage that I can accept his numbers as an accurate reflection of how many people have read the Articles. That is for the following reasons. The figures do not take account of those who may have read the Articles then forwarded them to others in a way which may not register on Google Analytics, eg, by way of email attachment. I also accept the point that many companies use agencies to carry out media monitoring, so that one ‘hit’ by such an agency may lead in turn to the Article being read by many of their clients. Nor do they take account of discovery and dissemination during due diligence. Mr van Cruyningen’s evidence is a good example of how that could happen. Whilst he was able to, and did, receive reassurances from Mr Kinde (one of the situations envisaged by Lord Sumption in Lachaux, [16], where a serious allegation would not cause serious harm), there might well be others who were not so satisfied.

Also, there is the cancellation of the Pareto mandate. I cannot place undue weight upon this because I cannot determine that it was the defamatory Articles in particular which caused its cancellation as opposed to, for example, the tenor of the Articles overall, but it does show in general terms, I think, the potentially serious consequences for the First Claimant’s reputation.

There is also the point, as I have explained, that the question of serious harm is not a ‘numbers game’ and serious harm to a person’s reputation can be caused by publication of serious allegations to a relatively small number of publishees. Mr Callus expressly accepted this, and that it is perfectly possible to have serious harm caused by publication to just a couple of publishees, if they are important enough. I also bear in mind the evidence that the field in which the Claimants operate is a small one.

I attach weight to the evidence of Mr Kinde and Mr van Cruyningen. I attach little or no weight to the anonymous hearsay evidence given by Mr Thompson (whilst not doubting that he has accurately reported what he was told).

Looking at the evidence as a whole, I am satisfied that there is at least a good arguable case (in the sense I explained earlier) the Articles have been read by a significant number of people and that there has been some ‘percolation’ through the renewables industry and that the First Claimant has or is likely to suffer serious harm to his reputation as a consequence.

I turn to the Second Claimant’s case. Beyond the inherent seriousness of the allegations, it is right, as the Defendants observe, that the Second Claimant’s pleaded case on serious harm is almost entirely founded on the impact of the termination of the Pareto mandate. As Mr Callus rightly said ‘it all hinges on Pareto’. This is pleaded at [19]-[22] of the Particulars of Claim:

“19.

The publication by the Defendants of the words complained of in the Articles has caused serious harm to the Claimants, including serious financial harm to the Second Claimant. The Claimants will rely upon the following facts and matters in support of their plea of serious harm:

a.

The allegations against the Claimants are of such severity as to invite the inference that they have caused serious harm to their reputation.

b.

In any event and as set out below, Pareto has materially and very significantly changed its position in relation to its dealings with the Second Claimant as a result of the allegations, such change caused by the severity of the harm caused to the Claimants’ reputations by the publication of the words complained of; and

c.

Pareto Securities’ response to the publication of the words complained of has caused serious financial harm to the Second Claimant.

20.

On 24 April 2020 the Second Claimant entered into (through the signature of the First Claimant) a mandate agreement ("the Mandate Agreement") with Pareto Securities Pte Ltd ("Pareto"), a Singaporean entity in the Norwegian Pareto Banking Group of companies. The object of the Mandate Agreement was the raising of finance by the Second Claimant in the total sum of around EUR €570 million to fund the acquisitions and construction of solar power plants. The funds were to be raised by a combination of a share capital increase through a private investment or public offering of shares in the Second Claimant or its subsidiaries; and/or by bank debt or bond financing. By the Mandate Agreement Pareto agreed to provide, on an exclusive basis, financial advisory assistance in support of the said fundraising, for a success fee.

21.

By a letter and email dated 7 November 2020 Pareto, lawfully and in accordance with the Mandate Agreement, terminated the Mandate Agreement with immediate effect, stating as follows:

“Reference is made to the mandate agreement entered into between E.E.W. Eco Energy World Plc. ("EEW") and Pareto Securities Pte Ltd ("Pareto") dated 24th April 2020 (the "Mandate Agreement").

“As EEW is aware the Swedish online publication Realtid has published a series of articles raising questions regarding EEW and its majority owner Svante Kumlin's business activities. Pareto is not in a position where we can reject or investigate the various questions and allegations raised by Realtid. "However, with the uncertainty created by the media coverage Pareto is of the opinion that the Transactions (as defined in the Mandate Letter) will be difficult to complete as intended. We therefore believe it will be beneficial for EEW to work with other advisors.

“On this basis and in accordance with section 5.2 of the Mandate Agreement Pareto has decided to terminate the Mandate Agreement with immediate effect.’”

22.

The termination by Pareto of the Mandate Agreement has caused and is likely to further cause serious financial harm to the Second Claimant, including as follows:

a.

The termination by Pareto of the Mandate Agreement has brought to an immediate halt the Second Claimant's planned investment in plant and associated infrastructure with an estimated total capacity of 600 MW;

b.

Pareto's decision to pull out of the project marks the end of a 2-year period of project development and negotiation between the Second Claimant and Pareto, which association has cost the Second Claimant a considerable amount of time and money that now constitutes a lost investment. The Second Claimant is urgently seeking to value that lost investment, but estimates that in internal and external costs its loss is around EUR €150,000 over the 2-year period;

c.

Further the cessation of the relationship with Pareto has deprived the Second Claimant of profit-making opportunities arising from the intended relationship, including by way of example the anticipated sale of a solar project in Spain by which the Second Claimant was set to profit in the amount of around EUR €14.5 million. The Second Claimant is currently urgently seeking to evaluate and particularise its position since Pareto's termination of the Mandate Agreement, and to ascertain the value of the lost opportunities and/or the costs of the delay; and

d.

The abrupt cessation of the Second Claimant's said relationship with Pareto in the circumstances set out above has caused further serious harm to the Claimants' reputations in what is a relatively small industry.”

To the extent that the First Claimant seeks to suggest in his evidence (see eg, first witness statement, [47]-[53]), that there may be other financial consequences for the Second Claimant in the form of lost future opportunities and the like, these have not been pleaded and I reject the evidence as vague and speculative.

The Defendants submit that the Second Claimant has not established a good arguable case under s 1(2), and on that basis cannot show a completed tort so as to establish jurisdiction under Article 7(2) BRR.

The Defendants make two principal arguments:

In Marinari the plaintiff sued in Italy for economic losses allegedly resulting from actions by employees of Lloyds Bank in England who had reported him to the police in England over suspect promissory notes, leading to his arrest here. Both the causal event (namely the conduct imputed to the employees of Lloyds Bank) and the initial damage, (sequestration of the promissory notes and his arrest and detention) occurred in the UK. Only the alleged consequential damage, ie, financial losses were suffered in Italy.

The headnote of the decision in Marinari reads:

“… while the term ‘place where the harmful event occurred,’ in the meaning of article 5(3) [as noted earlier, the same language as Article 7(2) of the BRR], could cover both the place where the damage occurred and the place of the event giving rise to it, it could not be construed so extensively as to encompass any place where the adverse consequences of an event that had already caused actual damage elsewhere could be felt, and it did not include the place where the victim claimed to have suffered financial loss consequential on initial damage arising and suffered by him in another contracting state.”

In FS Cairo (Nile Plaza) v Brownlie [2020] EWCA Civ 996, McCombe LJ (with whom Underhill LJ agreed) said at [39] in relation to Marinari:

“39.

As this was the last of the EU cases to which we were referred, it is perhaps helpful to summarise the effect of the European cases to which reference has already been made in the CJEU's own words, describing the derogation (in article 5(3)) from the general rule (in article 2) that defendants are to be sued in the courts of their domicile:

‘10. As the court has held on several occasions – in Mines de Potasse d'Alsace [1978] QB 708, 729, para. 11 [i.e. Bier]: Dumez France [1990] ECR I-49, 79, para. 17, and Shevill v. Presses Alliance S.A. (Case C-68/93) [1995] 2 AC 18, 61, para. 19 – that rule of special jurisdiction, the choice of which is a matter for the plaintiff, is based on the existence of a particularly close connecting factor between the dispute and courts other than those of the state of the defendant's domicile which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings.

As summarised by Lord Hodge JSC in AMT Futures Ltd v Marzillier mbH [2018] AC 439 at [15]:

“The CJEU has ruled on the correct approach to article 5(3). It has interpreted the phrase ‘the place where the harmful event occurred’ (a) to give the claimant the option of commencing proceedings in the courts of the place where the event occurred which gave rise to the damage or in the courts of the place where the damage occurred (if the event and damage were in different member states): Handelskwekerj GJ Bier BV v Mines de Potasse d' Alsace SA (Case C-21/76) [1978] QB 708, para 24; (b) as "the place where the event giving rise to the damage, and entailing tortious … liability, directly produced its harmful effect upon the person who is the immediate victim of the event" and thus not the place where an indirect victim, such as the parent company of the immediate victim, suffered financial loss as a result: Dumez France and Tracoba Sarl v Hessische Landesbank (Helaba) (above), para 20; and (c) consistently with (b) above, where a victim suffered harm in one member state and consequential financial loss in another, as referring to the place where the initial damage occurred: Marinari v Lloyd's Bank Plc (Case C-364/93) [1996] QB 217, paras 14 and 15. The focus in (b) and (c) is thus on where the direct and immediate damage occurred.”

Marinari can therefore be understood as a decision which places limits on Article 5(3) (and given the similar wording, Article 7(2) BRR) by providing that a victim cannot sue in the courts of any state in which economic loss or some other indirect loss is said to have occurred as the result of, or flowing from, direct damage arising in another Member State.

Marinari was applied by Jay J in Napag,. At [26] he said:

“… as a prior condition it would have to be established that there has been publication in England and Wales and that the First Claimant has suffered ‘serious harm’ (including "serious financial loss") here, both being matters of domestic law:  see the decision of the CJEU in Marinari v Lloyds Bank Plc [1996] QB 217.”

In Mahmudov, [12], Collins Rice J said (original emphasis):

“The position was further clarified in Marinari v Lloyds Bank [1996] QB 217. There the CJEU held that the Shevill rule did not extend the special jurisdiction to each and every place where any adverse consequence of the libel could be felt. It did not, in particular, include a country where a claimant had suffered financial loss consequential to damage arising elsewhere. The special jurisdiction in defamation, in other words, was limited to places where direct reputational damage caused by reading the libel occurred.”

Applying these principles, I accept the Defendants’ submission that the Second Claimant has to show that it suffered serious financial loss in this jurisdiction as a result of publication of defamatory Articles in this jurisdiction. The Defendants said it cannot show this. I agree. For the following reasons, I have concluded that the Second Claimant does not have a good arguable case on this question, and hence that its claim must fail.

As I have said, everything turns on the cancellation of the Pareto mandate. The evidence of publication of the Articles to individuals within Pareto is very limited. The principal evidence is two emails and a letter exhibited to the First Claimant’s first witness statement. These show that:

Mr Callus put the point this way in oral submissions:

“So what Marinari decides is that, where you have what I am going to call direct damage as a result of a tort, so an act is committed in, say, for present purposes, Sweden, someone puts something online in Sweden, that is the act giving rise to the damage. The harm to reputation, which is under both section -- both claimants under s.1, the serious harm to reputation, which takes place in the minds of readers, because it is harm to reputation. Where the harm to reputation, we say, here is caused in the head of Petter Haavik in Singapore or is caused in the minds of the compliance of department in Oslo and Stockholm, so it is outside the jurisdiction, as a consequence there is a cancellation of a contract that then causes financial loss.

…

Therefore, under this first jurisdictional question, where what we are looking for is, has there been serious harm causing serious financial loss, caused by publication in England and Wales, apart from the inherent seriousness of the words in the small publication here, the entirety of the serious financial loss plea is predicated on a publication to Singapore or potentially compliance in Oslo and Stockholm - assuming for present purposes that it has caused serious financial loss here, as opposed to overseas - the direct damage has been caused where the readers were in Oslo, Stockholm or most likely Singapore.

So, for the purposes of applying the rule in Marinari to this case, all of the serious financial loss has been caused by extraterritorial publication. There is no publication in England and Wales which is even pleaded, let alone evidenced, as having been caused by publication in England and Wales. On that basis alone, the second claimant’s claims against all defendants goes.”

As I said earlier Pareto is a Singaporean company which is owned by a Norwegian group of banks. This is confirmed by the First Claimant in his first witness statement at [33]. The decision-making individual with whom the First Claimant was dealing (Mr Haavik) is based in Singapore.

The First Claimant says in his first witness statement at [35] that he had two meetings with Pareto in their London offices on 3 October 2019 and then on an unspecified date in December 2019. So far as I can see, this is the only connection between Pareto and this jurisdiction in relation to this matter. These meetings took place before publication of the first Article in September 2020, and so can have no relevance to the cancellation of the mandate.

It seems to me on the evidence that it is (at least) inherently improbable that publication of the Articles in this jurisdiction were the cause of the cancellation of the mandate in Singapore, from which the Second Claimant’s financial loss is said to have flowed. Everything points to all relevant events, namely the reading of the Articles, then the enquiries by the compliance team in Oslo/Stockholm, and then Mr Haavik’s enquiries sent from Singapore, and then the cancellation, took place abroad. Those are the places where the direct and immediate damage (if any) to the Second Claimant’s reputation took place. The First Claimant’s own evidence in his first witness statement at [44] is that it was the compliance team in Oslo which first raised the issue of the Articles. Any financial losses were secondary and indirect.

Hence, even on the assumption that the Second Claimant is able to prove that financial harm flowed from the termination of the Pareto mandate (which the Defendants dispute), it cannot show, as it must, that that termination was caused by publication in this jurisdiction. To the contrary, the plain thrust of the evidence is that it was publication abroad which prompted the train of events which led to the cancellation of the mandate in November 2020. Excellent though his submissions were, I think it fair to observe that Mr Price did not really have a substantive answer to this aspect of the Defendants’ case.

Therefore, even on the Second Claimant’s own pleaded case, it has no prospect of satisfying the requirement of s 1(2) of the DA 2013 in respect of publications in this jurisdiction. Accordingly, there is no jurisdiction under Article 7(2) BRR and the Second Claimant’s claim must fail.

Further, it seems to me that the Second Claimant faces serious causation problems. The termination letter, as I have said, did not isolate any particular Article or Articles as having led to its decision to terminate. Given I have only found three out of the eight Articles to be defamatory at common law, there would be considerable hurdles in the way of the Second Claimant in order for it to show it was those Articles which caused the termination. I therefore cannot say it has a good arguable case on causation.

Mr Callus made other points on causation and loss, not all of which I need to deal with. One point was that the Second Claimant gave a different reason for the termination of the mandate, namely, it said in a press release on 10 November 2020 that it had cancelled the mandate because of ‘market conditions’. The First Claimant in his first witness statement at [46] said the press release had been deliberately drafted to avoid making reference to the Article in order to ‘limit the damage that had already been caused’.

The Defendants also said that another possible reason the mandate was cancelled was because the Second Claimant failed, adequately or at all, to respond to the questions which had been put to it by Pareto at the behest of its Oslo/Stockholm compliance team. They say there is no evidence that the Claimants ever responded to those queries They also point out that in its termination letter Pareto said that, ‘Pareto is not in a position where we can reject or investigate the various questions and allegations raised by Realtid’. The Defendants say that an obvious reason why Pareto would have been unable to do so would have been if the First Claimant had either not responded to its questions, responded by refusing to provide a proper answer, or responded by confirming that the suspicions raised in Realtid’s articles were true. If so, the Defendants say it would have been the First Claimant’s actions which caused the termination of the agreement and not any alleged libel by the Defendants.

I need not dwell unduly on these points made by the Defendants save to say they would have provided additional causation difficulties for the Second Claimant at trial and add to my conclusion that the Second Claimant does not have a good arguable case of defamation over which this Court has jurisdiction, and hence that its claim must fail.

The Defendants further argue that the Second Claimant has not advanced a proper case as to the actual financial losses it alleges it has suffered as a result of the termination of the Pareto management agreement and thus that it has failed to establish a good arguable case of serious financial loss. First, it points to the averment in [22(b)] of the PoC that it incurred €150,000 in ‘internal and external costs’ during a two-year period of project development and negotiation with Pareto and says these ‘losses’ cannot be relied on in support of the Second Claimant’s case. They rely on Niche Products Ltd v Macdermid Offshore Solutions LLC [2014] EMLR 9, [40]. I do not read that paragraph as saying such losses can never be recoverable, but rather as being confined to the facts of that case.

The Defendants make other forensic points about this alleged loss. They say the €150,000 does not feature in the accounts of the Second Claimant, and on that basis do not, in fact, appear to be losses suffered by it at all. Mr Price disputed this and said that this figure was included in the accounts as part of a figure of €900,000 for ‘general administrative expenses’. In addition, the losses are said to have been incurred over a ‘two-year’ period prior to termination of the mandate agreement on 7 November 2020. The Defendants say that the Second Claimant did not exist prior to 21 January 2019, so it is impossible for it to be the company said to have incurred losses over that two-year period. The Defendants say the obvious inference is that, to the extent these costs were ever incurred, they were costs borne by other EEW Group companies.

The Defendants also criticise the pleaded alleged loss of ‘profit making opportunities’ ([22(c)] of the PoC) ‘including by way of example’, lost profit from ‘the anticipated sale of a solar project in Spain by which the Second Claimant was set to profit in the amount of €14.5 million in the amount of around EUR 14.5m’. I agree it is not legitimate to plead ‘by way of example’: HRH Duchess of Sussex v Associated Newspapers Limited [2020] EMLR 21, [65]. Also, it seems to me this is deficient because this does not amount to a proper or coherent pleading of pecuniary loss for the purpose of a libel claim. In short summary, the pleaded case does not clearly identify: (a) the asset; (b) its value; (c) who owns it; (d)  details of the proposed sale; (e), any facts or matters as to causation of the alleged loss: see generally Collins Stewart v The Financial Times Ltd [2005] EMLR 5 at [25].

The Defendants also say that it is clear from the evidence that the Second Claimant is prevented from recovering the losses referred to, suffered by other companies, by operation of the rule against reflective or derivative loss, which prevents a company’s shareholder from recovering losses occasioned by losses suffered by the company: Prudential Assurance v Newman (No 2) [1982] Ch 204; Marex Financial Ltd v Sevilleja [2021] AC 39.

They point to the First Claimant’s evidence in his first witness statement at [45(4)] where he asserts that the Second Claimant’s damages claim is premised on the fact that it ‘ultimately holds the value of EEW Group’s investments and these have been severely damaged by the termination of the relationship with Pareto and otherwise’.

Hence, the Defendants say that on the evidence the Second Claimant has not in fact suffered any loss directly, any loss is in the form of an alleged diminution in the value of its shareholding in its subsidiary (and that company having suffered a diminution in the valuation of its shareholding in the company below it and so on). They say that this is a clear example of ‘reflective loss’, it being the Second Claimant’s case that losses suffered by those subsidiary companies will be reflected in the value of its investment.

The Defendants rely on Shevill in the Court of Appeal, where Purchas LJ said at [1996] AC p968C-F

“I have no difficulty in agreeing with Mr. Tugendhat that, in the case of the holding company, the second plaintiff could have suffered no damage by virtue of its interest as shareholder only in the third plaintiff. Compensation for any injury suffered by the third plaintiff as a result of the libel would be recovered in the action. The third plaintiff would be accountable to the second plaintiff for the damages recovered. Therefore the claim of the second plaintiff should in any event be stayed.”

Similarly, in dismissing the damages claim in Gatt v Barclays Bank Plc, Unreported, 14 January 2013, HHJ Moloney QC explained (emphasis added):

“[The bank] also takes an overarching point of law, that CG cannot pursue these damages claims because they are claims for “reflective loss”. That is, any losses of profit caused by inability to fund promising deals would, at least in the first instance, be losses of profit sustained by one or more of the companies in the GLN group, since it is the companies which engage in the development projects, not the Gatts personally. Further, it is likely that if the deals had been profitable then the companies would, as before, have passed the profits back via a large salary for MG not CG; though she would have benefited from that salary, it would still be his not hers, and therefore she cannot sue for the loss of it any more than she can for losses caused to the companies in which she may have been a shareholder.

CG challenges this as an artificiality. She says she and her husband are a team, who share everything; their business is a joint business and its profits fund their joint lives. If the business has been destroyed by the Bank's misconduct, so that she loses her home and her assets, how can it be said that she has not suffered personal loss, at least to the extent of half the joint losses? It is clear, however, that the law is as the Bank states; see for example Prudential Assurance v. Newman (No.2) [1982] Ch 204. For their own good reasons, including no doubt tax and limited liability, the Gatts have always conducted their business not as a partnership but through a corporate structure, and have channelled the profits primarily through MG rather than CG as the disparity in their taxable incomes demonstrates. They cannot now step back from this when it suits them and claim that CG was personally and directly entitled to her share of the profits, so as to have a personal claim for them against the Bank.”