SVANTE KUMLIN & Anor v CAMILLA JONSSON & Ors

On a jurisdiction challenge to an online libel claim under Article 7(2) of the Brussels Recast Regulation, the claimant must establish a good arguable case on each element of the tort, including publication, defamatory meaning and serious harm.

Serious harm is assessed by reference to the evidence as a whole. The gravity of the imputation, the identity and quality of publishees, likely percolation and the actual or probable impact are relevant. It is not merely a numbers exercise.

For a corporate claimant, serious harm requires serious financial loss and the claimant must show a trading or business reputation capable of being damaged. Indirect financial consequences arising from direct reputational damage abroad do not confer English jurisdiction under the Marinari principle.

A claimant’s centre of interests is generally its habitual residence, displaced only by sufficiently close connections elsewhere.

The claimants brought libel proceedings concerning eight Swedish-language articles published on a Swedish business news website. The first claimant was resident in Monaco and had international business interests. The second claimant was an English public company and holding company. The defendants were Swedish individuals and a Swedish media company.

The defendants challenged jurisdiction under CPR Part 11. The issues were whether the claimants had a good arguable case that the publications were actionable libels in England and Wales; whether the second claimant had suffered serious financial loss here; whether England and Wales was the first claimant’s centre of interests, permitting recovery for global publication and non-pecuniary relief; and whether Swedish law would defeat parts of the claims.

The court decided the jurisdiction issues without reaching the proposed Swedish-law arguments.

1. Jurisdictional standard. The claimants bore the burden of establishing a good arguable case under Article 7(2) of the Brussels Recast Regulation. The test required a plausible evidential basis for the jurisdictional gateway, an interim assessment where the evidence permitted a reliable view, and, where no reliable assessment was possible, a plausible but contested evidential basis. The test applied both to the existence of an actionable tort and to the centre-of-interests issue.
2. First claimant. The court found a good arguable case that Articles 2, 6 and 8 were defamatory at common law and that publication had caused or was likely to cause serious harm. The allegations included dishonesty, sham transactions, misconduct, defrauding creditors and deletion of evidence. The seriousness of those allegations, the likely importance of the publishees in a small commercial sector, and evidence of percolation supported the conclusion despite relatively limited apparent readership. The remaining articles did not satisfy the defamatory-meaning threshold on the material available.
3. Second claimant. The claim failed. Under Marinari v Lloyds Bank Plc, Article 7(2) did not confer jurisdiction for indirect financial loss said to flow from direct reputational damage abroad. The evidence indicated that the relevant reading, compliance enquiries and cancellation of the Pareto mandate occurred abroad. There were also substantial causation difficulties. The second claimant was a holding company and had supplied scant evidence that it traded for profit or possessed a trading reputation capable of being damaged.
4. Centre of interests. The first claimant had connections and a reputation in England and Wales, but had not shown a good arguable case that England and Wales displaced Monaco as his centre of interests. His international activities were diffuse and the claim was rooted principally in Swedish reporting about Swedish-related matters. He was therefore limited to local damages arising from publication in England and Wales and could not seek internet-related non-pecuniary relief with effect outside England and Wales.
5. The Swedish-law arguments did not arise. The parties were invited to draw up an order reflecting the judgment.