Appeal from order declining jurisdiction.
Lewison LJ pointed out: ‘So far as the question of irreconcilable judgments is concerned, I wish to reserve my opinion for a case in which it matters. I simply make the following observations. Judgment in The Tatry was given on 6 December 1994. Shevill was argued before the Grand Chamber on 10 January 1995; and judgment was delivered on 7 March 1995. Of the 11 judges who sat in Shevill, 6 had also sat in The Tatry. Neither Advocate General Leger nor the court referred to The Tatry, which had been decided in the previous month. In Shevill both Advocates-General drew a distinction between ‘conflicting judgments’ on the one hand, and ‘irreconcilable judgments’ on the other. That does not appear to be the case in The Tatry, in which the court referred only to ‘conflicting judgments’. The court in Shevill did not cast doubt on the Advocates General’s distinction; and its answer to question 6 might be thought to recognise implicitly that the existence of another possible jurisdiction did not deprive the claimant of his right to sue. How Shevill and The Tatry are to be reconciled is not, in my judgment, a straightforward question. On one view, Shevill (and after it eDate) give a claimant the substantive right to sue in each member state where the libel has been published, with the consequence that that right is not to be taken away by procedural means. On another view, the mere fact that there is a right to begin proceedings in a particular member state does not entail the consequence that the claimant is entitled to prosecute those proceedings all the way to trial. There is something to be said for each point of view. So I would prefer not to decide between them in a case in which it makes no difference to the outcome of the appeal.’
Bean LJ giving the leading judgment preferred what Lewison LJ had characterised as ‘another view’, albeit holding that it was unnecessary for his decision: ‘I accept the submission of Mr McCormick that the judgment of the Grand Chamber of the ECJ in Shevill is an authority about the right of a claimant to issue claims in each jurisdiction pursuant to RBR Article 7(2) [the equivalent to Article 5(3) of the Lugano Convention], not about whether the ‘related actions’ provisions of Article 30 can then be applied to such claims. The proposition for which Ms Page contends seems rather extreme. Suppose that someone is found stabbed to death and the defendant publishes an article, which is circulated throughout Europe, alleging that the deceased was murdered by the claimant. If Ms Page is right, the claimant, assuming he can afford it, has an absolute right to bring 27 separate libel claims against the defendant and (subject to any local case management decisions) to push each of them along towards a trial and judgment in whichever order he, the claimant, chooses. No stay can be granted, still less jurisdiction declined, under Article 30; and if in the first trial it is found that the claimant did in fact murder the deceased then, no matter: he can try again in another Member State because there is no risk of ‘irreconcilable’ judgments, only of ‘conflicting’ ones. This does not seem to me to accord with common sense. It also enables a claimant with deep pockets to oppress a defendant by suing him in 27 jurisdictions.’
Judges:
Lewison, Bean, Baker LJJ
Citations:
[2019] EWCA Civ 1932, [2019] 4 WLR 156, [2019] WLR(D) 623
Links:
Jurisdiction:
England and Wales
Citing:
Cited – eDate Advertising GmbH v X ECJ 25-Oct-2011
ECJ (Grand Chamber) Regulation (EC) No 44/2001 – Jurisdiction and the enforcement of judgments in civil and commercial matters – Jurisdiction ‘in matters relating to tort, delict or quasi-delict’ – Directive . .
Cited by:
Cited – Wright v Granath QBD 16-Jan-2020
Defamation across borders – Jurisdiction
The claimant began an action for defamation in an online publication. The Norwegian resident defendant had begun an action there seeking a declaration negating liability. The Court was now asked by the defendant whether under Lugano, the UK action . .
Lists of cited by and citing cases may be incomplete.
Defamation, Jurisdiction
Updated: 15 October 2022; Ref: scu.643874