Ahuja v Politika Novine I Magazini D.O.O & Ors

On an application to serve proceedings out of the jurisdiction, the claimant must establish a serious issue to be tried, a good arguable case within a jurisdictional gateway, and that England and Wales is clearly the appropriate forum. In a defamation claim under Defamation Act 2013, section 9 requires evidence enabling the court to compare all places of publication. A claimant’s English residence does not by itself establish that England is clearly the most appropriate forum where the claimant has a genuinely global reputation and substantial publication and connections elsewhere. Material non-disclosure, including nationality, foreign connections or publication figures, may independently require an order permitting service out to be set aside.

The claimant brought claims for misuse of private information and defamation against a Serbian newspaper, its editor and a Serbian journalist concerning articles about an alleged transfer of money from Serbia to Switzerland. Permission had been granted to serve the proceedings out of the jurisdiction. The defendants applied to set that order aside, contending that there had been material non-disclosure and that Serbia was the more appropriate forum.

The court considered the applicable service-out gateways, the requirement under Defamation Act 2013, section 9, that England and Wales be clearly the most appropriate place for the defamation claim, the strength of the claims, the natural forum, and whether there was cogent evidence of a risk of an unfair trial in Serbia.

1. Disposition. The order permitting service out of the jurisdiction was set aside in relation to both the defamation and misuse of private information claims. Further submissions were invited on any consequential order.
2. For service out, the claimant had to show a serious issue to be tried, a good arguable case that the claim fell within a relevant gateway, and that England and Wales was clearly or distinctly the appropriate forum. The court applied the summary in AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7.
3. The claims raised serious issues and fell within Practice Direction 6B paragraph 3.1. The defamation claim also raised a serious issue concerning serious harm under section 1 of the Defamation Act 2013. The claimant’s case concerning Google Translate publications also raised a serious issue, although the reliability and variation of translations remained relevant.
4. Section 9 required the court to consider the jurisdictions in which the statement had been published. The claimant had not supplied sufficient evidence concerning publication and reputational harm outside England and Serbia, despite asserting a global reputation and having substantial connections with Austria and the USA. The court therefore could not be satisfied that England and Wales was clearly the most appropriate place for the defamation claim.
5. For misuse of private information, Serbia was the natural forum. The disclosures, the public-interest issues, the conduct of the Serbian journalists, the principal publication and much of the alleged harm were closely connected with Serbia. The parties’ Serbian nationality, language, residences and the relative cost and convenience of proceedings reinforced that conclusion.
6. The evidence concerning the Serbian justice system fell well short of the cogent evidence required to establish a real risk that justice would not be obtained through incompetence, lack of independence or corruption. The remarks attributed to the Serbian Prime Minister did not establish such a risk.
7. The claimant’s failure to disclose his Serbian nationality and passport, his Serbian connections and materially overstated publication figures independently justified setting aside the order. The court also held that the common-law duty of legality, rather than Article 6 of the ECHR or section 3 of the Human Rights Act 1998, supplied the relevant protection for access to justice.

First-instance decision. The judgment records no appeal or earlier substantive decision, although it sets aside the prior permission order made by Master Roberts on 31 March 2015.