Kim v Lee

On a strike-out application in a defamation claim, the court must be certain that the claim is bound to fail before terminating it. Where disputed facts bear on jurisdiction, reputation, serious harm or abuse of process, those issues ordinarily require trial.

For Defamation Act 2013, section 9, domicile is determined by the statutory test in the Civil Jurisdiction and Judgments Order 2001. Residence is a question of fact and degree and may exist in more than one jurisdiction. A failed foreign criminal complaint does not, without more, make English civil defamation proceedings abusive. The Jameel jurisdiction remains exceptional, particularly where serious harm and substantial vindication are arguable.

The claimant, a Korean-born sports journalist and church pastor resident in England, sued the defendant for libel arising from eight Korean-language social-media publications alleging dishonesty, fraud and misleading reporting.

The defendant applied to strike out the claim under CPR rule 3.4(2) and the inherent jurisdiction. He argued that the court lacked jurisdiction under section 9 of the Defamation Act 2013, that the claimant had been publicly vindicated by South Korean authorities, that the claim was abusive because a Korean criminal complaint had not led to prosecution, and that no real and substantial tort had been committed in England.

The central issues were whether the defendant was domiciled in the United Kingdom, whether England and Wales was clearly the most appropriate venue if section 9 applied, and whether the claim was incapable of providing a legitimate and proportionate benefit.

1. Application refused. The claim was not suitable for strike out. The court was not certain that it was bound to fail, and the disputed factual issues were matters for trial.
2. On the section 9 issue, the relevant date for domicile was the date when the claim was issued. The statutory test required residence in the United Kingdom and a substantial connection arising from the nature and circumstances of that residence. The defendant’s admission in the Defence that he was resident in the United Kingdom was conclusive on residence for the application. His living and working in England with his family for more than three years, covering English Premier League events, strongly supported a substantial connection.
3. Residence is a question of fact and degree. A person may reside in more than one jurisdiction. The court must examine the quality and nature of the residence and the settled pattern of the person’s life, rather than conduct a numerical comparison of time spent in different countries.
4. Even if section 9 applied, it was at least arguable that England and Wales was clearly the most appropriate venue. Both parties had been resident here, the publications concerned events in England, the alleged wrongdoing occurred here, there was readership and reputational harm in England, and the principal witnesses could be heard here. Translation difficulties did not make the venue clearly inappropriate.
5. The failed South Korean criminal complaint did not make the English civil claim an abuse of process. It was not a civil defamation judgment in the defendant’s favour. The elements of the foreign offences, the standard of proof and the prosecutorial test were unknown. The circumstances therefore differed materially from Karpov v Browder.
6. The court accepted that serious harm under section 1 of the Defamation Act 2013 and a real and substantial tort were arguable. Repeated allegations of dishonesty were potentially seriously harmful to a journalist and pastor, and a judgment could substantially vindicate the claimant’s reputation in the relevant community. The proportionality balance therefore favoured allowing the claim to proceed.
7. The admissibility of evidence concerning the Korean criminal complaint was left to the trial judge.