Guistra v Twitter. The BC Supreme Court on suing Twitter for libel in Canada, and rejecting forum non with enforcement elephants in the room.

A post I started writing on 14 December 2021 so it’s about time I’ld finish it. In  Guistra v Twitter 2021 BCCA 466 (the case echoes Haaretz in Ontario) the Supreme Court of British Columbia with  Grauer J delivering the unanimous opinion, upheld jurisdiction for the BC courts on the basis of the claim pointing to a tort having been committed in BC, BC therefore being locus delicti commissi. The Court held that damage in the jurisdiction, locus damni, needs then not separately be argued.

Mr. Giustra, a British Columbia resident, alleges that Twitter published tweets that defamed him in British Columbia, as well as elsewhere.  Twitter asserts nota bene that, in law, it cannot properly be considered a “publisher” of tweets that were authored and posted on its platform by its users. That issue is deferred for the merits of the claim: at the jurisdiction level, the pleading is what is important: compare with the situation under Brussels Ia.

A forum non conveniens challenge in favour of the courts at California was rejected, where reference was made ia to Google v Equustek. There is an elephant in the room here, so identified, namely that a claim in California is doomed to fail on free speech grounds, and that an eventual Canadian judgment is doomed to be unenforceable at least in the US.

A good judgment for comparative purposes.

Geert.

Kumlin v Jonsonn. Judge dismisses jurisdiction for most of Swedish businessman’s libel claim, defusing what is said to be a SLAPP suit.

Kumlin & Anor v Jonsson & Ors [2022] EWHC 1095 (QB) disciplines forum shopping, in this case libel tourism, in a claim that is considered a SLAPP: a Strategic Lawsuit against public participation.

First Claimant is an entrepreneur, businessman and investor in sustainable and ethical business ventures, resident in Monaco, with business interests in the UK including in the Second Claimant, of which he is the founder, Chairman and Chief Executive Officer. He is a Swedish citizen. Second Claimant is a public limited company registered in England and Wales. Claimants’ case is that between 29 September 2020 and 2 November 2020 the Defendants, or some of them, all of whom are Swedish, published or caused to be published on the Website eight articles concerning the Claimants. There was further publication via Facebook, Twitter, etc, where links to the Articles were posted. 

The Articles are in Swedish. Knowles J [30] advances the reasoning, proposed by defendants, that jurisdiction under any of the gateways as a result of A4 BIa, locus damni or locus delicti commissi (A7(2) BIa per CJEU Bier and Shevill), or centre of interests (A7(2) BIa, per CJEU eDate and Bolagsupplysningen) only exist to the degree the case is actually actionable in those cases which, he submits, requires reference to the domestic laws of those Member States (e.g. a minimum ‘publication’ threshold). I believe this is incorrect: jurisdiction and actionability are not the same. While lex fori on threshold issues will have an immediate impact on the practical reality of a claim, it does not stand in the way of principled jurisdiction under BIa, which exists without reference to national laws.

The judge refers to much CJEU and E&W authority, all of it discussed on this blog, most recently the Court of Appeal in Mincione.

Knowles J’s discussion eg [69] ff of the intensity of publication etc required, under residual double actionability rules, in my view is a threshold question and not, as it is presented, a jurisdictional, gateway question, albeit the analysis in this section is mixed with justifiable discussion of direct v indirect damage under the CJEU Marinari rule. The judgment is much more extensive on this point than it could have been in my opinion.

[224] it is concluded that on the centre of interest issue, which is relevant for the natural person claimant only, his centre of interests is Monaco, where he is habitually resident. That is a factual assessment which is unlikely to be material for an appeal.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

Pal v Damen. A haywire engagement with the consumer, contract section of Brussels Ia.

Pal v Damen & Anor [2022] EWHC 4697 (QB) is another application (compare Clarke v Kalecinski) of Brussels Ia’s consumer section to cosmetic surgery contracts. Respectfully, the analysis is a botched job.

Claims are both in contract and in tort, as is usual in this type of litigation. Jurisdiction on the basis of the consumer title against the Belgium-based surgeon is undisputed, as is the lack of jurisdiction under Article 7(2)’s tort gateway against the clinic where the surgery was performed, locus damni (direct damage, CJEU Marinari) and locus delicti commissi both being in Belgium. The core question is whether there is a contract between surgeon and /or the clinic and the patient, and whether this is a consumer contract.

The second question needs to be determined first. The clinic essentially provides the hardware for the surgeon, but also ensures patient flow via its website http://www.wellnesskliniek.com which without a doubt meets with the  CJEU Pammer /Alpenhof criteria and therefore ‘directs its activities’ towards the UK. Its general terms and conditions, of which it is somewhat disputed that claimant ticked the relevant box, state ia that the clinic ‘is not party to the treatment agreement between the physician and the patient.’ 

The  expert evidence [25] ff centres around Belgian law. Expert for one of the defendants is their Belgian counsel, and Cook M dismisses his report [55] as not meeting relevant CPR requirements on expert evidence. On the basis of the remaining evidence, the judge finds [59]

the Claimant has established a good arguable case for the existence of a contract for medical treatment and /or medical services between her and the Surgeon and accordingly this Court has jurisdiction over that claim. The Claimant has failed to establish a good arguable case for the existence of a contract for medical treatment and /or medical services against the Clinic and accordingly the Court does not have jurisdiction over that claim.

With respect, the direction of analysis is entirely wrong. The first line of enquiry should have been whether there is a consumer contract with either or both of the Belgian parties, and if there is with one, whether the other party could have been caught in its jurisdictional slipstream. Á la Bonnie Lackey but then in the opposite direction: in Bonnie Lackey the question was whether persons in the immediate orbit of the undisputed ‘consumer’-claimant, may also sue under the consumer title. In current case, the question would be whether those in the immediate vicinity of the business-defendant, may be sued under the consumer title. The existence of a consumer contract is entirely an EU law question, not a Belgian law one.

Next, if the decision were taken that at least one of the parties is not caught by the consumer title, the existence of a ‘contract’ (for the provision of ‘services’) under Article 7(1) would be triggered, as would the forum contractus under Article 7(1)a, with an analysis of where the services were or should have been provided. This, too, is an analysis that requires EU law and EU law alone. [There is no trace in the judgment of a choice of court and /or law which for the former per A25 Brussels Ia may require Belgian law, with renvoi, a lex fori prorogati but even then only for the material ‘consent’ issue].

Belgian law does not come into this analysis at all, unless, potentially and most unlikely, one argues that the A7(1) analysis requires the conflicts method, should a contract for medical services not be caught by Article 7(1)’s ‘provision of services’: in that case, Rome I’s decision tree would be required to determine lex contractus and place of performance. Even then however it is not at all certain that Belgian law would be the outcome of Rome I’s matrix.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff, 2.385 ff.

Chep Equipment. Brussels Ia’s forum prorogati (with renvoi) rule once again does not make the cut.

In Chep Equipment Pooling BV v ITS Ltd & Ors [2022] EWHC 741 (Comm), Salter DJ untangles a myriad of jurisdictional gateways, partially tortious (with reference to UKSC Brownlie, and to CJEU Bier etc where relevant), partially contractual and subject to choice of court. A forum non challenge is rejected.

The choice of court discussion is interesting in particular for at 48 the judge mixes the forum prorogati rule of Article 25 BIa juncto its recital 20. One of the defendants claims the privilege of an A25 choice of court to establish compulsory Belgian jurisdiction. The judge notes that the agreement of which the clause is part, is governed by Belgian law and

The Audit Agreement, although in the English language, is governed by Belgian law. Rightly, neither party had tendered evidence of the principles of interpretation of jurisdiction clauses under Belgian law. At this stage of the proceedings, reliance on the presumption of similarity with English law is sufficient: see Brownlie (supra) at [157], per Lord Leggatt. In those circumstances, I must simply apply to this provision the principles of interpretation articulated in Fiona Trust and Holding Corpn v Privalov [2007] UKHL 40[2007] Bus LR 1719.

This is a touch incorrectly formulated. Per BIa, the existence of consent and its expression are governed by A25, not by reference to any national law. The validity of consent by contrast does rely on national law however it is not the lex contractus of the underlying agreement which is relevant but rather the lex fori prorogati (also Belgian law), with renvoi. The judge in my view cannot rely on English law to judge the validity of choice of court at good arguable case level: once jurisdiction settled, it will not be allowed to be revisited. Even at this stage, therefore, per BIa the enquiry arguably must be made under Belgian law. Whether there was actually any suggestion that under Belgian (and subject to renvoi) law consent may not have been given, is not clear from the judgment.

Claimants tried to argue that the claim does not arise ‘out of or in connection with’ the Audit Agreement that contains choice of court however the judge disagrees. This part of the claim therefore must be litigated in Belgium (and an A8(1) anchor would of course not assist to keep the proceedings in England).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.4.

CJEU holds EU flight Regulation abides by customary international law in extending its reach to flights partially carried out outside the EU.

A brief post on the judgment of the CJEU in C-561/20 United Airlines. The CJEU held that the EU flight delay compensation rules of Regulation 261/2004 apply to a flight operated by non-EU airline on behalf of EU airline, even when  the delay relates to flight segment outside the EU. On the issue of international jurisdiction, the Court engages with customary international law questions, referring ia to its C-366/10 ATAA judgment which I discussed here.

The CJEU firstly [51] repeats that since

a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying such a principle

I do not think its poor view on the lucidity of customary international law is justified, however its finding that only manifest errors may lead to illegality does of course mean the CJEU does not have to worry about all the nuts and bolts of territorial jurisdiction. It suffices [52] that there is a close connection with the territory of the EU since the Regulation specifies that connecting flights fall within the scope of that regulation on the ground that the passengers have started their journey from an airport located in a Member State. [53]:

The regulation applies to a long delay caused in a leg of a flight operated in a third country only in limited and clearly defined circumstances in which the flight concerned, taken as a whole, is operated from an airport located in the territory of a Member State. Such a flight and its passengers thus retain a close connection with the territory of the European Union, including for the leg of the flight operated outside the European Union.

Flights which are wholly operated in a third country or between two third countries, without any connection with EU territory [55].

Geert.

Court of Appeal overturns and confirms, in principle though technologically not in practice, mosaic blocking order jurisdiction in Mincione.

When CJEU Bolagsupplysningen was held, I flagged immediately (I was not alone) that the judgment would necessarily create follow-up litigation.

At the level of the CJEU itself, Mittelbayerischer Verlag somewhat reigned in the consequences of Bier and Shevill, albeit not directly related to the discussions in Bolagsupplysningen. In Gtflix, the Court confirmed that each Member State where damage has occurred, will continue to have locus damni jurisdiction even if the claimant requests rectification of the information and the removal of the content placed online in another jurisdiction: one with full jurisdiction as either the Handlungsort or the place of the claimant’s centre of interests.

In England and Wales, Saïd v L’Express (a first instance case) held that it follows from Bolagsupplysningen that so far as internet publications are concerned, a claimant who is seeking injunctive relief (removal, correction in particular) may do so only in the places with full jurisdiction. This was implicitly confirmed in Napag, also a first instance case.

This conclusion has now been overturned by the Court of Appeal in Mincione v Gedi Gruppo Editoriale SPA [2022] EWCA Civ 557. This is a libel case brought by an Italian national with acquired British citizenship who is resident in Switzerland. He sues the Italian-domiciled publisher of a daily newspaper and weekly magazine, both of which are published predominantly in Italy and in the Italian language.

The first instance judge, Mincione v Gedi Gruppo Editoriale SpA [2021] EWHC 2006 (QB) had followed Said and Napag. The Court of Appeal notes that as a result of the Withdrawal Agreement it is bound by Bolagsupplysningen, it having been held before Brexit, and that it  ‘can have regard to’ ([65]) Gtlfix.

Warby J, seeking support in Gtflix, holds injunctive jurisdiction to restrain a harmful internet publication that has either occurred or “may occur”, does exist for the locus damni court yet only in respect of publication that may occur within the territorial jurisdiction of the court concerned. It can justify a domestic internet injunction, even for a ‘mosaic’ (locus damni) court, yet not to grant an injunctive remedy that would inevitably take effect extraterritorially.

The first instance judgment therefore is overturned on legal substance but  largely confirmed in practical reality: [72]. Current proceedings are largely held in substance, albeit not in form, to be a claim for a single and indivisible remedy. That is because a domestic internet injunction, prohibiting further publication, in this case however limited it might be in form, would, on the undisputed evidence, inevitably have extraterritorial effect. In future, technology might mean that an order framed as a domestic internet injunction would or could take territorial effect only. Yet in current technological reality, it is said that ordering removal would immediately have extraterritorial substantive effect. Those with knowledge of the technology may have more to say about this. Update 29 04 4:50 PM: the first instance judgment suggests this is related to the limited E&W jurisdiction, while the order would impact other parts of the UK, too: [98]: geo-blocking can only be done at a UK level, and the removal of a YouTube video can also be only done at a UK level (not: the E&W level).

The only part of the claim where jurisdiction for injunctive relief, if claimant is found at trial to have been libelled, will be possible, is for a so-called ‘section 12’ internet injunction: an order to publish a summary of the eventual judgment. That is because in the view of the the Court of Appeal, this relief can be targeted to the current subscriber basis of the publication outlets in England and Wales only.

Per Soriano, post Brexit a claimant will have to show that England and Wales is clearly the most appropriate place to bring an action, with locus damni per  SC Brownlie the tort gateway. Bolagsupplysningen will therefore not echo for much longer in E&W, and I doubt therefore that the SC will hear an appeal if it were sought.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

Cryptoassets, non-fungible tokens and consumer protection. The High Court rejects jurisdiction in Soleymani v Nifty, re-igniting the opaqueness of the arbitration exception under Brussels Ia.

In Amir Soleymani v Nifty Gateway LLC [2022] EWHC 773 (Comm) Abrose J largely rejected jurisdiction for the English courts in a claim following auction brought by a UK-based digital artwork collector. Another part of the claim was stayed pending arbitration in New York.

Faced with a clause in Nifty’s general terms and conditions that provide for binding arbitration in New York and for New York law to be the governing law of the contract, claimant seeks a declaration that the arbitration agreement was unenforceable due to it being unfair under the UK Consumer Rights Act 2015. Alternatively, he argued the governing law clause is invalid on the same statutory ground, and that a contract arising from the auction is void for illegality pursuant to the UK Gambling Act 2005.

Of note is that the US based arbitrator, in the proceedings initiated by Nifty, is considering himself (with procedural and discovery orders having been issued) broadly similar issues under consumer protection provisions of the ADR provider.

At [34] the qualification of NFTs as ‘art’ or merely ‘technology’ [‘the nature of NFTs as assets, and whether they are artwork, with the Claimant’s position being that he was trading in digital art whereas the Defendant maintained that an NFT is merely a unique string of code stored on a blockchain ledger that makes a digital artwork accessible, and marks authenticity’] is announced as potentially relevant for substance but not for current application.

The discussion largely takes place under retained EU law (s15b of the Civil Jurisdiction and Judgments Act 1982 (as amended)). The judge holds [55] that the claim falls within the arbitration exception of (retained) Brussels Ia seeing as, as she qualifies it

The principal focus and subject matter of Mr Soleymani’s claim is whether he is legally obliged to arbitrate.

Recital 12 BIa is called upon in support. Claimant ([49]-[50] in particular are a good summary of the position) essentially argues such a view is incompatible with the effet utile of the consumer title. I believe that point has merit and one imagines it will be on this point that appeal will be sought (Bitar v Banque Libano-Francaise was offered in some support).

Whether the contract is a ‘consumer’ contract is still discussed [62] ff viz the claim for declaratory relief regarding the unfairness of the arbitration clause under the Gambling Act. The judge holds [79] that on the evidence put forward, Claimant has the better of the argument as to whether the Defendant was directing commercial activities to England (and the UK more generally). However she decides to grant the defendant a stay (which would not have been possible pre-Brexit) in favour of the unfairness issues being discussed in the New York arbitration. (These issues may later return to a UK court in the shape of an ordre public opposition to enforcement of the award in the UK).

I will of course notify if and when permission to appeal will have been granted.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.2, and 2.2.9.2.

Al Assam v Tsouvelekakis. Yet another lengthy forum non conveniens discussion, keeping the case in E&W and not Cyprus.

Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) shows the way many claims involving EU Member States facts or defendants are likely to go, until the novelty of newly found forum non freedom wears off perhaps: with intensive forum non conveniens-based jurisdictional challenges.

The defendant is domiciled in England and Wales. The claimants are the settlors of 2 Cypriot trusts who claim for the losses suffered in connection with the trusts’ investments. The trusts were both established under the International Trusts Law of the Republic of Cyprus.

As in Klifa v Slater, the forum non test, following Spiliada and VTB v Nutritek, [12] involves two limbs: Under limb 1 of the test, the Defendant must establish that the courts of Cyprus are both (i) “available” and (ii) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the Defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.

On availability, there is a bit of to and fro and each other’s Cypriot law legal experts, particularly on the territorial jurisdiction under residual Cypriot rules. However the conclusion [26] is that the Cypriot courts are ‘available’.

Obiter, Richards DJ discusses whether if there is no availability under Cypriot law, there might be availability if there is a submission to jurisdiction and/or an agreement /choice of court.

Discussion here was first whether A26 Brussels Ia could remedy the lack of territorial jurisdiction under Cypriot law. Unlike A25 choice of court, A26 does not include language making the defendant’s domicile in the EU a precondition for its application. At [32] the conclusion for the purpose of these proceedings is that there is a real risk that the Cypriot courts will not have jurisdiction on the basis of A26.

The discussion then [33ff] turns to the Cypriot courts being the clearly or distinctly a more appropriate forum with the conclusion being in the negative.

Helpfully, and suggested by counsel, the judge puts the following structure to the analysis:

a) personal connections ([39]: defendant’s residence in England remains a relevant factor pointing towards the English courts being the appropriate forum);

b) factual connections (held: correspondence between the parties will be of more relevance than the physical location of parties in Cyprus);

c) evidence/convenience/expense (conflicting factors here but none leading overwhelmingly to Cyprus);

d) applicable law (most likely Cypriot law for many of the claims however ia given the similarity with English law, this is not an overwhelmingly relevant issue [56] and some Swiss law will have to be applied anyways); and

e) the “overall shape of the litigation”, held [59] not to be Cypriot.

Limb 2, the requirements of justice, is considered obiter under two angles [61]: delays and the possibility of statutes of limitation kicking in. On the delays, [67] comity and caution to express chauvinistic views upon a friendly jurisdiction argue against a finding of unavailability of justice on this ground, particularly as the experts’ views on this were inconclusive; the possibility of statute of limitation is held [68] largely to be of the claimants’ own making (ia because they had started but discontinued proceedings in Cyprus. Limb 2 therefore, had it mattered, would not have been satisfied and had limb 1 been met, a stay of the proceedings in England would have been ordered.

Geert.

Cornwall Renewable Development v Wright et al. Pro inspiratio use of Brussels Ia and its case-law to inform an intra-UK jurisdictional issue.

What I want to say about Cornwall Renewable Developments Lrd v Wright, Johnston & Mackenzie LLP [2022] EWHC 441 (Ch) is in the Tweet below, really, so I will not say much more. It is interesting and refreshing to see the High Court without much ado look for among others Brussels case-law to determine an issue of intra-UK jurisdiction post Brexit.

Geert.

Kwok v UBS. Cockerill J helpfully on Lugano, economic loss and branch jurisdiction.

Update 25 02 2022 thank you Matthew Hoyle for letting me know that Justice Cockerill today granted UBS permission to appeal against her judgment.

In Kwok & Ors v UBS AG (London Branch) [2022] EWHC 245 (Comm) Cockerill J holds on forum damni (Article 5(3) for purely economic loss, and branch jurisdiction (Article 5(5) for the English courts under the Lugano Convention. Defendant is Switserland based and the proceedings clearly were initiated prior to Brexit.

On A5(3) locus damni, all parties and the judge agree that CJEU authority is not easy to disentangle and does not unequivocally point into one direction: see eg [84] ‘the authorities are not entirely pellucid on what they do say.’

The bank, defending, argues ia that a rule of thumb under (limited) English authority is that in a case of negligent misstatement the damage will occur where the misstatement is received and relied upon. Cockerill J distinguishes the authority from current case and also points out [82] that all cases concerned predate the CJEU authority particularly in Lober and Vereniging van Effectenbezitters, and that ‘the tide of authority is against the proposition that loss is suffered wherever a claimant ultimately feels it’ [85]. Having summarised the lines of interpretation following from CJEU authority, she concludes [113]

Once the focus is on actual manifestation (of damage, GAVC) the most natural analysis is to view the damage as occurring where and when the Acquired Shares were liquidated.

here, London, where the shares claimants had invested in were held and where the funds they had invested were depleted; the loss crystallises, manifests, becomes certain and irreversible with the sale of shares and that loss of claimants’ Monetary Contribution which had merged into the shares  [115].

The account, where the damage was first “registered” or “recorded” was in London with the defendant itself (as in CJEU Kronhofer) [117]. The Universal Music-instructed ‘special circumstances’ cross-check also points to London: [118]

London was the place at which it had been agreed by all parties that the Acquired Shares would be held, and all of the contractual documents UBS entered into (albeit for a transaction at one remove from the Claimants) were to be in English and governed by English law. It was therefore entirely predictable and foreseeable from November 2014 that the parties might sue or be sued in London in relation to the Investment and dealings with the Acquired Shares.

Branch jurisdiction under Article 5(5) is dealt with obiter [120] ff. Cockerill J holds [138] that was is needed inter alia per CJEU flyLAL is ‘sufficient nexus’, sufficiently significant connection does not require involvement in the tortious acts [140]. This is supported, Cockerill J holds [148] by the fact that UBS London’s thoughts and actions will be relevant to the trial. There will be a need to investigate UBS London’s conduct and intentions both (i) at the time of the representations and advice given by UBS and (ii) late events and the loss resulting therefrom.

A good judgment to assist with the economic loss jigsaw.

Geert,

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