Ishtiaq Baig v Zoheb Hassan

The defendant applied under CPR Part 11 to challenge the court's jurisdiction in a defamation claim, advancing (i) that the claim form had not been validly served under the Civil Procedure Rules and (ii) that section 9 of the Defamation Act 2013 deprived the court of jurisdiction because the defendant was not domiciled in the United Kingdom and England and Wales was not the clearly most appropriate place to bring the action.

The Master found as a fact that the claimant's solicitors had posted the claim form and associated documents to the defendant's United Kingdom address shown at Companies House on 5 December 2022 but that the postal items did not arrive, a failing explained by industrial action and building works. Applying section 1140 of the Companies Act 2006 together with section 7 of the Interpretation Act 1978 and the relevant authorities, the court held that posting to a director's registered address on the public register sufficed for service even though the defendant was physically abroad when the postal step was taken.

However, on the section 9 challenge the court concluded that, as at the date of issue (8 August 2022), the defendant was not resident in England and Wales for the purposes of section 9 and that Pakistan was clearly the more appropriate forum for an action concerning the broadcasts. For those reasons the court declared that it had no jurisdiction and set aside the claim form.

Background and nature of the claim:

• The claimant issued a defamation claim in England on 8 August 2022 arising from statements broadcast on Pakistani television on 12–13 August 2021. The claimant had earlier issued proceedings in Pakistan and obtained an interim order there. The claimant sought damages and associated relief in relation to the alleged publications.

Applications and issues before the court:

• The defendant brought a Part 11 application asserting (a) defective or ineffective service under the Civil Procedure Rules (CPR 7.5) because the defendant was outside the jurisdiction when the claimant took the postal step, and (b) that section 9 of the Defamation Act 2013 barred the court from hearing the claim because the defendant was not domiciled in the United Kingdom and England and Wales was not clearly the most appropriate place to sue. The defendant also advanced an argument of abuse of process arising from the ongoing Pakistan proceedings (not decided on this application).

Factual findings:

• The court accepted the evidence that the claimant's solicitors prepared and posted two envelopes (first-class and recorded delivery) to the defendant's London flat shown on the Companies House register on 5 December 2022, and that copies were emailed to the defendant and his solicitors the same day. The court also accepted evidence that the envelopes did not in fact arrive, a result plausibly explained by postal strikes and building works affecting delivery.
• The defendant was found to have lived mainly in Pakistan and to have been physically outside the United Kingdom at the time of the posting step. The defendant had family, business and medical connections in both jurisdictions; the medical evidence played a significant role in assessing the nature of his presence in the United Kingdom.

Court's reasoning and conclusions:

• Service: The court held that section 1140 of the Companies Act 2006 permits service on a director by sending documents to the address shown on the public register and that this method operates even if the director is physically absent from the jurisdiction at the time of the posting. The court rejected the argument that non-compliance with the 2008 regulations (conditions for a service address) invalidated service under section 1140. Applying section 7 of the Interpretation Act 1978, posting in accordance with the rules was sufficient even though the letters did not reach their destination. Consequently the claimant had taken a timely service step under CPR 7.5 and jurisdiction would not be declined on that ground.
• Section 9 Defamation Act 2013: The court applied the statutory test for domicile under the Civil Jurisdiction and Judgments Order and the Brownlie formulation of the "good arguable case" requirement for jurisdictional contests. Having weighed the factual material (including the pattern and purpose of the defendant's visits to the United Kingdom, family connections and the medical evidence), the court concluded reliably that the defendant was not resident in the United Kingdom on 8 August 2022 and that Pakistan was clearly the most appropriate forum for the claims arising out of Urdu-language broadcasts with a primarily Pakistani audience. Accordingly the court held that section 9 barred exercise of jurisdiction.

Relief granted:

• The court declared that it had no jurisdiction and set aside the claim form. The abuse of process argument was not decided on this application.

This was a first-instance Part 11 jurisdictional challenge. The court held that, although service by posting to the defendant's Companies House registered address on 5 December 2022 was sufficient to satisfy CPR service steps (relying on section 1140 Companies Act 2006 and section 7 Interpretation Act 1978), the claim nevertheless fell within section 9 of the Defamation Act 2013. The court found that, as at 8 August 2022, the defendant was not domiciled (resident) in the United Kingdom under the statutory test and that Pakistan was clearly the more appropriate forum for the dispute. For that reason the court declared that it had no jurisdiction and set aside the claim form.