Matthew Thomas Parish v Wikimedia Foundation, Inc.

Permission to serve a defamation claim outside the jurisdiction requires satisfaction of three separate conditions: an applicable gateway, a real prospect of success, and proof that England and Wales is clearly the most appropriate forum. In an international publication case, the forum inquiry must consider every jurisdiction in which the complained-of or substantially similar statements were published. Relevant matters include the claimant’s reputation, the locations of the underlying events, documents and witnesses, available remedies, language, costs and access to justice. A without-notice applicant must make full and frank disclosure of facts material to those issues. The single publication rule may make a later substantially identical webpage publication subject to the limitation period running from the first publication.

The claimant brought a libel claim concerning a Wikipedia article referring to his conviction by a Swiss criminal court. The defendant, incorporated in the United States, challenged an order made by Master Gidden permitting service of the claim outside the jurisdiction.

The defendant submitted that the claim failed the forum and merits requirements and that the claimant had failed to make full and frank disclosure on the without-notice application. The central issues were whether England and Wales was clearly the most appropriate forum, whether material non-disclosure justified setting aside the order, and whether the claim was time-barred under the single publication rule.

1. Procedural objection. The claimant’s application for permission to serve out was formally made without notice. Sending the defendant a courtesy copy did not amount to service and did not remove the defendant’s right under CPR 23.10 to apply to set aside the order.
2. Forum Test. The claimant had to show that, of all places where the statement or substantially the same imputation was published, England and Wales was clearly the most appropriate forum under section 9 of the Defamation Act 2013. The inquiry is fact-sensitive and includes the claimant’s reputational connections, the places of publication, the location of the underlying events, documents and witnesses, language, costs, remedies and practical access to justice.
3. England was not clearly the most appropriate forum. The claimant had not lived or worked in England since 2003, had extensive personal and professional connections with Switzerland, and was most well-known there. The complained-of statements concerned Swiss conduct and Swiss criminal proceedings. The relevant evidence was principally in Switzerland and likely to be in French. The order therefore fell to be set aside.
4. Full and frank disclosure. The claimant had failed to disclose his extensive Swiss connections, his absence from England for two decades, and a material earlier letter concerning the publication. These were egregious breaches which had misled the court and independently justified setting aside the order.
5. Merits and limitation. Under section 8 of the Defamation Act 2013, the later Wikipedia page was substantially the same as the January 2022 page and had been published in the same manner. The claim, issued nearly two years after the claimant first threatened proceedings, had no real prospect of defeating the limitation defence under sections 4A and 32A of the Limitation Act 1980.
6. The order permitting service out was set aside on all three grounds. The court consequently had no jurisdiction to hear the claim, which was dismissed.

The judgment determined the defendant’s application to set aside an order made by Master Gidden on 22 March 2024 permitting service outside the jurisdiction. It was a first-instance application in the High Court.