Wheat v Monaco Telecom SAM & Anor

Permission to serve proceedings out of the jurisdiction requires the claimant to satisfy each applicable jurisdictional and procedural requirement. For the jurisdictional gateway, a claimant must have the much better argument, assessed by both an acceptable minimum quality of evidence and relative plausibility. Copyright infringement is territorial. Loss suffered in England as a consequence of an alleged infringement abroad is insufficient unless infringement or relevant damage occurred in England and Wales. Copyright may constitute property for the relevant gateway, but the claim must still relate to property within the jurisdiction. The claimant must also show a reasonable prospect of success and that England is clearly the proper forum. Material non-disclosure, including a failure to disclose a material procedural development, may justify setting aside permission even without deliberate misleading.

The claimant alleged that Monaco Telecom had copied and continued to broadcast an unauthorised duplicate of his website. He sought to rely principally on copyright infringement, together with allegations of conversion and breach of a common law duty of care.

Permission to serve Monaco Telecom out of the jurisdiction had been granted on 30 January 2017. Monaco Telecom applied to set that order aside, contending that the jurisdictional gateways were not satisfied, that the claim had no reasonable prospect of success, that England and Wales was not the proper forum, and that the order had been obtained through material non-disclosure.

The central issues were whether the claimant had the much better argument on the relevant gateways, whether the claim had a reasonable prospect of success, whether England was clearly the appropriate forum, and whether the earlier order should be set aside.

1. The order of 30 January 2017 was set aside and a declaration was granted that the court did not have jurisdiction, or would not exercise jurisdiction, over the claim against Monaco Telecom. Material non-disclosure justified that result. The claimant had incorrectly told the court that permission to serve the first defendant had already been granted. That error was material because permission to serve Monaco Telecom had been granted on the basis that it was a necessary party. He had also deliberately failed to notify Monaco Telecom’s solicitors of the renewed application, despite their request. Deliberate misleading was not required.
2. The claimant failed the three requirements for permission to serve out. Under the approach in Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814, the much better argument test requires both an acceptable minimum quality and adequacy of evidence and relative plausibility. The court may assess the reliability of the claimant’s evidence, but should avoid conducting a trial.
3. Copyright is territorial. An infringement of Monegasque copyright law would cause damage in Monaco. Indirect or consequential loss suffered in England because the claimant or his business was based there did not satisfy Practice Direction 6B paragraph 3.1(9). The evidence did not establish that Monaco Telecom infringed copyright in England and Wales.
4. The claimant also failed to establish a sufficient case of joint tortfeasorship. Mere assistance or facilitation is insufficient. The alleged evidence of a CNAME record showed, at most, possible diversion and did not provide a sound basis for inferring inducement, persuasion, common design or concerted action with Google.
5. Copyright was capable of being property for Practice Direction 6B paragraph 3.1(11), but that gateway did not assist because the claimant could not show infringement within the jurisdiction. England and Wales was not clearly the proper forum under Spiliada Maritime Corp v Consulex Ltd [1987] AC 460. The relevant server, witnesses, defendant and events were connected with Monaco, and the contractual background pointed to Monaco.
6. The claim also lacked a reasonable prospect of success. The court considered, but did not need to decide, the Jameel v Dow Jones [2005] QB 946 and limitation arguments. The evidence did not establish that the claimant lacked capacity when the cause of action accrued, as required by section 28 of the Limitation Act 1980.