10 May 2018
Court declines jurisdiction in Polish libel claim
The High Court yesterday, it is believed for the first time, exercised its discretion to decline jurisdiction over a libel claim under Article 30(2) of the Recast Brussels Regulations.
In Euroeco Fuels (Poland) Ltd & others v Szczecin and Swinoujscie Seaports Authority SA & others  EWHC 1081 (QB) Nicol J ruled that although the Court had jurisdiction to entertain the action under Article 7(2), a range of factors justified declining that jurisdiction on a discretionary basis.
The claim was based upon a series of reports made in hard copy and on the internet (in Polish) of words spoken (in Polish and in Poland) about alleged Benzene pollution from the First Claimant’s premises. The words were spoken by an employee of the First Defendant which is the First Claimant’s landlord and with which the First Claimant was at all times engaged in litigation in Poland over alleged nuisance caused to other occupiers by various emissions from the First Claimant’s premises.
The Claimants (the First Claimant, its UK based parent and two individuals involved with those companies) sued in England relying upon Article 7(2) and the “mosaic” principle articulated in Shevill v Presse Alliance SA (allowing a suit in any place where a harmful event occurred, but limiting damages to harm caused in that jurisdiction). The Defendants challenged jurisdiction under Article 7(2) and also asked the Court to decline jurisdiction under Article 30(2) or stay the proceedings under Article 30(1).
Under Art 7(2) the Defendants argued that as the question as to whether or not a “harmful event” had occurred was one for the law of each member state to decide, the advent of the Defamation Act 2013 meant that it was necessary for each of the Claimants to demonstrate that it/he had a “good arguable case” that satisfied all the necessary applicable criteria including those within s.1 DA 2013.
The Claimants argued that arguments as to the meaning of the words complained of, reference and damage should only be dealt with on an interim application once jurisdiction had been taken. The Judge disagreed, holding that the Claimants were required to establish jurisdiction and that this required proving that each had a good arguable case that satisfied all the requirements of a libel action. He proceeded to find that each Clamant did pass that, relatively modest, test.
Under Art 30 the Defendants argued that the proceedings in Poland were “related” to the libel claim because there was the risk that the two sets of proceedings would produce irreconcilable judgments (the test in Art 30(3)) and that as Polish law permitted a claim for the relevant libels to be heard with the Polish proceedings, the Court should decline jurisdiction or stay the proceedings.
The Judge decided that although there was no certainty as to a conflict between the outcomes of the two sets of proceedings, both raised the issue of Benzene pollution and that there was a risk that irreconcilable decisions would be reached. Although the evidence was that “consolidation” of the existing Polish proceedings with a new libel action in Poland was highly unlikely, this was permitted by Polish law.
The Judge decided that, given that the conditions for exercising his discretion to decline jurisdiction or to stay the proceedings existed, he should do one or the other. As the Claimants had characterised a stay as being “as bad as” declining jurisdiction, and declining jurisdiction was the Defendants’ preferred course, this was the order made.