Carr v Penman

Permission to serve proceedings out of the jurisdiction requires a serious issue to be tried, a good arguable case that the court has jurisdiction, and England to be clearly or distinctly the appropriate forum.

Defamation proceedings may be stopped as an abuse of process where publication in England is minimal and the proceedings offer no tangible or legitimate advantage that justifies their cost and use of court resources. A claimant seeking permission without notice must make full and frank disclosure of material matters. Although material non-disclosure does not invariably require discharge of the order, the order may be set aside where that outcome is proportionate and consistent with the overriding objective.

The claimant sought damages for alleged libel arising from articles published on websites concerning a franchising business. The defendant, resident in Australia, applied to set aside an order made by Master Yoxall permitting service of the claim form and other documents out of the jurisdiction.

The defendant relied on material non-disclosure, the absence of a real and substantial tort in England and Wales, the existence of substantive defences, and Australia being the appropriate forum. The claimant contended that there had been sufficient publication in England, that the claim had reasonable prospects, and that England was the appropriate forum.

The central questions were whether the claim satisfied the jurisdictional requirements for service out and whether the order should be set aside for material non-disclosure.

1. Applicable jurisdictional principles. The court applied the three-stage approach stated in Seaconsor Far East v Bank of Markazi [1994] 1 AC 438 and Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460: there had to be a serious issue to be tried, a good arguable case that the court had jurisdiction, and England had to be clearly the appropriate forum.
2. Real and substantial tort. The court applied the abuse-of-process principles in Jameel v Dow Jones [2005] EWCA Civ 75; [2005] QB 946. The question was whether the proceedings served a legitimate purpose, including whether any tangible or legitimate advantage outweighed the expense and the demands on court resources. The approach was also expressed in Schellenberg v BBC [2000] EMLR 296 as whether the game was worth the candle.
3. The evidence established no real and substantial tort in England and Wales. The publications were first made in Australia. The evidence of readership in England was inadequate, publication was minimal compared with what might have occurred in Australia, and the claimant’s evidence did not identify the relevant publications, dates or specific losses with sufficient precision. The likely irrecoverable costs and the claimant’s own emphasis on the expense of defending libel proceedings further demonstrated the absence of a tangible or legitimate advantage.
4. Australia was the appropriate forum. The claimant could bring proceedings there, and the dispute had a substantial Australian context. The possibility that some links had continued online did not alter the conclusion. The removal of the relevant article also meant that any desired removal had to some extent already been achieved.
5. Material non-disclosure. On the without-notice application, the claimant had been required to disclose the Australian defamation proceedings and the failure to pay the damages and interim costs orders, together with matters bearing on the purpose of the English proceedings. Those matters were material to the assessment of whether there was a real and substantial tort. The claimant’s failure to disclose them justified setting aside the order. The court also noted that non-disclosure need not invariably lead to that result where setting aside would be disproportionate, applying MRG (Japan) Limited v Engelhard Metals Japan Limited [2003] EWHC 3418 (Comm).
6. The order permitting service out of the jurisdiction was set aside, and the court declared that it would not exercise jurisdiction to hear the action.