Ishtiaq Baig v Zoheb Hassan

On an interlocutory jurisdiction challenge under the Defamation Act 2013, the claimant must satisfy the reformulated good arguable case test. The court must identify a plausible evidential basis, decide which side has the better argument if it can reliably do so, and otherwise apply the flexible third limb where no reliable conclusion is possible.

Jurisdiction disputes should ordinarily be resolved promptly and without oral evidence, but cross-examination is not prohibited. A judge may rely on coherent, sworn and uncontradicted evidence, provided the correct jurisdictional test is applied.

The appellant brought a defamation claim concerning statements broadcast on Pakistani television. The respondent applied under CPR 11 to set aside the claim form and challenge jurisdiction. The first-instance judge rejected the service challenge but held that the respondent was not domiciled in the United Kingdom under s.9 of the Defamation Act 2013, because he was not resident here for the purposes of s.41(2)(a) of the Civil Jurisdiction and Judgments Act 1982. The judge also found that England and Wales was not clearly the most appropriate place under s.9(2).

The appeal concerned only domicile and raised whether the judge had wrongly relied on the absence of cross-examination and failed to apply the good arguable case test.

1. Appeal dismissed. The first-instance judge correctly held that the respondent was not resident in the United Kingdom at the relevant date. The unchallenged conclusion under s.9(2) also remained against the appellant.
2. The good arguable case test under s.9 of the Defamation Act 2013 was the reformulation in [2018] 1 WLR 192, as explained in [2019] EWCA Civ 10. The claimant must provide a plausible evidential basis for the jurisdictional gateway. The court must decide who has the better argument if it can reliably do so. If it cannot, a plausible but contested evidential case may suffice.
3. Jurisdiction challenges are interlocutory and should ordinarily be determined promptly and without oral evidence. The court retains a power to permit cross-examination under CPR 32.7, but that power must be exercised cautiously and should not convert the application into a mini-trial.
4. The judge was entitled to accept coherent and uncontradicted evidence concerning the respondent’s location and the medical purpose of his stays in England. The appellate court could not re-perform the evidential evaluation merely because it might have assessed the material differently.
5. It was unnecessary to determine the alternative forum non conveniens and abuse of process arguments.

• High Court (King's Bench Division): Appeal against the order of Master Dagnall dated 5 February 2025 dismissed.
• First instance: Claim form set aside for lack of jurisdiction under s.9 of the Defamation Act 2013. The service challenge failed, and the finding under s.9(2) was not appealed.