Evangelos Marinakis v Irini Karipidis & Ors

Permission to serve proceedings outside the jurisdiction requires a good arguable case within a gateway, a real prospect of success, and England and Wales being the proper place for the claim.

At the merits stage, the court ordinarily examines the pleaded facts on the assumption that they are true. Evidence disputing those facts generally raises issues for trial. However, a claimant must be held to the case actually pleaded, particularly where serious allegations of conspiracy or accessory liability are made.

Mere payment or facilitation does not establish joint tortious liability or unlawful means conspiracy. There must be conduct furthering the tort pursuant to a common design. The duty of full and frank disclosure on a without-notice application requires fair, proportionate and non-misleading presentation.

The claimant brought libel and unlawful means conspiracy claims arising from an alleged campaign of defamatory publications directed at him and Nottingham Forest supporters. The defendants were domiciled outside the jurisdiction.

A Senior Master granted permission to serve the claim form out of the jurisdiction without notice. The defendants applied to set that order aside, alleging lack of merit, an unsuitable forum, abuse of process and material failures of full and frank disclosure.

The central issues were whether the claims met the jurisdictional gateways and merits test, whether England and Wales was clearly the most appropriate forum, and whether the without-notice order should be discharged.

1. Disposition. The Second Defendant’s application succeeded. The applications of the First, Third and Fourth Defendants were dismissed. The claimant was deprived of the costs of his without-notice application because of material failures in full and frank disclosure.
2. Gateway and merits tests. The claims satisfied the relevant gateways in CPR PD 6B. The claim against the First Defendant, and the claims against the Third and Fourth Defendants, had a real prospect of success. The seriousness and extent of the publications supported an inference of serious harm under section 1 of the Defamation Act 2013.
3. Second Defendant. The pleaded case against the Second Defendant principally alleged that it made two payments to Harris Media at the First Defendant’s direction and on her behalf. That did not disclose primary liability for publication or joint liability. Mere assistance or payment is insufficient without conduct furthering the tort pursuant to a common design. The pleaded facts also failed to establish the combination, intention and overt acts required for unlawful means conspiracy.
4. Third and Fourth Defendants. The pleaded introduction to Harris Media, payment arrangements, copied emails and transmission of an instruction were capable of supporting an inference of knowing participation. The issues depended substantially on disputed facts and could not properly be resolved summarily. The Fourth Defendant’s receipt of payment and the Third Defendant’s apparent role on its behalf materially distinguished their position from that of the Second Defendant.
5. Section 10. Section 10 of the Defamation Act 2013 did not bar claims against persons arguably liable jointly with an author or editor. The court left unresolved the wider meaning of “not reasonably practicable” in relation to suing a possible commercial publisher.
6. Forum. England and Wales was clearly the most appropriate forum. The publications were directed to an English audience, published in England and caused alleged reputational harm here. No single foreign jurisdiction offered a more suitable forum.
7. Disclosure. The claimant’s presentation overstated the strength and breadth of the case against the Second, Third and Fourth Defendants and omitted documents obtained from Harris Media. The failures were not shown to be deliberate, but they were material. Setting aside the permission order would have been disproportionate because permission would probably still have been granted against the First, Third and Fourth Defendants.

The Senior Master granted permission to serve the claim form out of the jurisdiction on 29 May 2024. The defendants then applied to set that order aside. The High Court granted the Second Defendant’s application and dismissed the applications of the First, Third and Fourth Defendants.