Wright v Granath

For article 27 of the Lugano Convention to require a court second seised to decline jurisdiction, the proceedings must have the same parties, cause and object. The same object may be a determination of liability for the same publication. The same cause requires the same facts and rules of law relied upon as the basis of the claims; it is not enough that the claims share a central issue or risk conflicting outcomes.

A negative declaratory claim governed by Norwegian law, which required proof of absence of negligence, was not the mirror image of an English defamation claim lacking that legal element. Article 27 did not apply. It may, however, apply to competing global defamation claims. A negative declaratory claim is a legitimate use of the jurisdictional choices given by article 5(3).

Dr Wright sued Mr Granath in England for libel arising from a tweet which accused him of fraudulently claiming to be Satoshi Nakamoto. He sought damages, an injunction and a statement under section 12 of the Defamation Act 2013.

Before the English proceedings began, Mr Granath had commenced proceedings in Norway for declarations that he was not liable in damages and that his statements were lawful. The Norwegian court was first seised. Mr Granath successfully applied to the High Court to decline jurisdiction under article 27 of the Lugano Convention, on the basis that the proceedings had the same cause of action.

The appeal concerned whether article 27 can apply to global defamation claims and, if so, whether the Norwegian negative declaratory claim and the English libel claim had the same cause of action.

1. Appeal allowed by majority. Moylan LJ, with whom Singh LJ agreed, held that article 27 of the Lugano Convention did not require the English court to decline jurisdiction. The High Court had erred in treating substantial overlap and the risk of conflicting decisions as sufficient.

2. Article 27 requires the same parties, cause and object. The cause consists of the facts and rules of law relied on as the basis of the action. The object is the end which the action has in view. The authorities distinguish these inquiries. A common issue at the heart of both claims may establish the same object, but does not by itself establish the same cause.

3. The claims had the same object: each sought a determination of Mr Granath’s liability for the tweet, whether affirmatively or through negative declaratory relief. They did not have the same cause. The Norwegian claim, founded on section 3-6a of the Damage Compensation Act, required resolution of whether the statements had been made negligently. That substantive legal element did not arise in the English libel claim. The claims were therefore not mirror images and could consistently produce different results.

4. The potential for irreconcilable or conflicting decisions did not alter that conclusion. That consideration informs the broader related-actions jurisdiction under article 28. No application under article 28 had been made.

5. The court unanimously rejected the separate argument that article 27 could not apply to global defamation claims. Article 5(3) gives jurisdictional options for a global claim, and a prospective defendant may legitimately use the same options by seeking negative declaratory relief. The court left open the position concerning concurrent mosaic claims.

• Court of Appeal (Civil Division): appeal allowed by majority. The court held that article 27 of the Lugano Convention did not apply because the Norwegian and English proceedings lacked the same cause of action: [2021] EWCA Civ 28.
• High Court, Media and Communications List: Jay J had declined jurisdiction under article 27 on the basis that the Norwegian court was first seised and the claims had the same cause of action: [2020] EWHC 51 (QB).