Xiuling Wei & Ors v Jingping Long & Ors

A defendant may obtain relief from sanctions for a late acknowledgment of service where the breach is serious but has caused no significant litigation impact, the default was adequately explained, and the overall circumstances favour relief.

Permission to serve outside the jurisdiction requires a good arguable case within a gateway, a real prospect of success, and England and Wales to be the proper forum. A domain-name registrar that neither hosts nor operates the relevant website, and lacks knowledge and control over its content, is not a publisher at common law. It is also outside the statutory meaning of author, editor or publisher in the Defamation Act 2013. Sections 13(1)(a) and (b) do not justify removal or cessation orders against such a registrar.

The claim concerned allegations of harassment, defamation, malicious falsehood and privacy-related wrongs arising from internet posts. The claimants sought relief against four defendants, including Porkbun LLC, the fourth defendant, said to be responsible for the relevant website.

The court determined five applications concerning the fourth defendant: relief from sanctions for a late acknowledgment of service; a jurisdiction challenge; an application under section 13 of the Defamation Act 2013; an application for further information under CPR Part 18; and the claimants’ application to dismiss the jurisdiction challenge as totally without merit.

The central issues were whether the fourth defendant was a publisher or website operator, whether the court had jurisdiction over it, and whether any removal, cessation or disclosure order was appropriate.

1. Relief from sanctions. The 44-day delay in filing the acknowledgment of service was serious but not significant. The default was not intentional, the communications and technical problems provided substantial mitigation, and the delay had not affected the conduct of the litigation. Applying the three-stage approach in Denton and ors v TH White Ltd and ors [2014] EWCA Civ 906, relief was granted. Time was retrospectively extended, so the fourth defendant had not submitted to the jurisdiction.
2. Jurisdiction. Under the three-part test in Soriano v Forensic News [2022] QB 533, the claimants bore the burden of showing a gateway, a real prospect of success and that England and Wales was the proper forum. The claim was considered afresh but as at the date permission to serve out was granted. The claimants could not establish a case capable of resisting reverse summary judgment that the fourth defendant was a publisher at common law.
3. A primary publisher requires knowing involvement in publication of the particular words. A secondary publisher may rely on innocent dissemination if the relevant conditions are met. Subsequent ratification requires knowledge and control sufficient to infer authorisation or acquiescence in continued publication. The fourth defendant was only a domain-name registrar. It neither hosted nor operated the website, transmitted the words, nor had knowledge or control over its content. The jurisdiction order was therefore set aside.
4. Section 10 of the Defamation Act 2013 independently supported the result. The fourth defendant was not the author, editor or publisher, and it was reasonably practicable to sue the author or publisher because the claimants had obtained default judgment against the first defendant. The court also considered that the section 10 issue was unnecessary to the outcome because the common-law publisher ground sufficed.
5. Sections 13(1)(a) and (b) did not permit an order against the fourth defendant. It was not an operator with editorial or hosting control and was not distributing, selling or exhibiting the material. The section 13 application was dismissed. The Part 18 application was also dismissed because the fourth defendant lacked power to identify the posters, and its proposed recharacterisation as a Norwich Pharmacal application would not alter that conclusion.
6. The jurisdiction challenge and relief application were allowed. The claimants’ three applications were dismissed. The claimants were ordered to pay the fourth defendant’s costs, summarily assessed at £58,185.50, within 35 days.

Not stated in the judgment.