Sloutsker v Romanova

Permission to serve a foreign defendant outside the jurisdiction may be maintained where the claim concerns a real and substantial tort in England and Wales and this jurisdiction is clearly the appropriate forum under the Spiliada principles. In an international defamation claim, each publication is a separate tort. Substantial foreign publication does not prevent an English claim concerning meaningful publication and reputation here.

A material but innocent non-disclosure on a without-notice service-out application does not invariably require discharge. The court may retain the order where the omission would not have affected the result. Service through the Hague Service Convention is valid where the destination state's law treats a defendant, duly notified of a service hearing but failing to attend, as served.

Sloutsker v Romanova was an interlocutory defamation action. The claimant, a Russian businessman resident in Israel, alleged that the Moscow-based defendant journalist published grave allegations online and in a radio programme. He complained of publication in England and Wales as well as elsewhere.

The defendant challenged jurisdiction, the order permitting service out, and the validity of service in Russia. She contended that Russia was the proper forum and that the claimant had failed to disclose an earlier Russian criminal complaint. The claimant sought relief from a sanction for late service of evidence and contended that service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965 was effective.

The central issues were whether England and Wales was the proper forum for the English publications, whether the non-disclosure required the service-out order to be set aside, and whether Russian procedure had effected valid service.

1. The defendant's jurisdiction and service challenges were dismissed. The claimant was granted relief from sanctions and permission to rely on evidence served late. It was fair to proceed in the defendant's absence because she had ample notice of the hearing and no evidence justified an adjournment.

2. The late service of evidence was a serious breach and had no good reason. Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906, however, the breach was not deliberate, was at the lower end of seriousness, and had caused no significant disruption or disproportionate cost. Relief was therefore just.

3. The claimant had innocently failed to disclose his earlier Russian criminal complaint when seeking permission to serve out. That fact was material because the defendant would have wished to rely on it as indicating that Russia was an appropriate venue. But the omission would not have affected the Master’s decision. The court therefore exercised its discretion to leave the order in force, consistently with Brinks Mat v Elcombe [1988] 1 WLR 1350 and NML Capital Ltd v Republic of Argentina [2011] UKSC 31.

4. England and Wales was clearly the appropriate forum. Under The Spiliada [1987] AC 460, the court considered the forum with the most real and substantial connection and the ends of justice. Each English publication was a separate tort. The evidence established an arguable real and substantial English tort: the claimant had a significant reputation here, the publications were grave, and the English readership was substantial. Greater publication abroad did not alter that conclusion.

5. Russia was in principle available, but was not an appropriate alternative forum. The defendant’s own stated refusal to recognise the legitimacy of the Russian judicial system meant that a Russian judgment for the claimant might not vindicate his English reputation. Translation, evidence, and travel issues would not prevent the defendant receiving a fair opportunity to defend the claim in England.

6. Service was valid. Under Russian procedure implementing Article 5 of the Hague Service Convention, the defendant was personally notified by telegram of the Russian service hearing but did not attend. Russian law treated the available service steps as sufficient. Service was consequently valid under Russian law, the Convention, and CPR 6.40.

No appellate history is stated. This was a first-instance interlocutory determination in the defamation proceedings. An earlier case-management judgment in the same proceedings is recorded as [2015] EWHC 81 (QB).