“(1) A defendant who wishes to – (a) dispute the court’s jurisdiction to try the claim; or (b) argue that the court should not exercise its jurisdiction may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.”
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”
“A person domiciled in a Member State may be sued in another Member State: … (2) In matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur; …”
“10. What became known as the Shevill Rule stated that claimants had a choice. They could either proceed against defendants where the latter are domiciled, for global remedies for all the harm caused; or they could proceed in any or all countries where there is actionable publication – a tort committed – for the harm caused by that completed tort in that country. If the latter choice was taken, it was the national law of that country which determined whether there was a completed tort and if so what could be recovered there. So a claimant had two routes to global remedies: the general jurisdiction based on defendant's domicile, or (if all of the 'harmful event' did not happen in a different single country) a cumulative mosaic of actions in different countries relying on the special jurisdiction. The latter might or might not be preferable to claimants depending on local defamation laws.”
“33. In consequence the parties agree that where a claimant believes himself or herself to have been defamed in a newspaper or internet publication in more than one member state by a defendant domiciled in a member state, s/he has three choices: (i) s/he can sue for all of the loss in the courts of the defendant’s domicile; (ii) s/he can sue for all of the loss in the courts of the member state in which s/he has his or her centre of interests; or (iii) s/he can sue in the courts of the member state where (according to the national law of that member state) the harmful event occurred, but in those circumstances s/he is limited to the harm which occurred in that member state. This last alternative is sometimes referred to as the ‘mosaic alternative’ because, to recover for all of the loss suffered, claims must be brought in more than one state.”
“44. As I have said, Mr Rushbrooke accepted that it was for the Claimant to establish that the Court had jurisdiction to determine the libel claim. He would discharge that burden if he could show a 'good arguable case' for his claim – see Canada Trust v Stolzenberg (No.2)[1998] 1 All ER 318 ,[1998] 1 WLR 547 CA. Sometimes this is equated with whether the Claimant has 'a much better argument on the material available' – see Four Seasons Hotel v Brownlie[2018] 1 WLR 192 (SC) at [7] and [33]. For the sake of simplicity, when I refer to the 'good arguable case' test, it should be understood as meaning no less than 'a much better argument on the material available.' It is not my function on such an application as this to conduct a mini-trial to decide the issues on the balance of probabilities.”
“7. An attempt to clarify the practical implications of these principles [viz, those relating to evidential standard applicable to jurisdictional facts] was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2)[1998] 1 WLR 547 . Waller LJ, delivering the leading judgment observed, at p555: “‘Good arguable case’ reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i e of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.”
“… it is sufficiently clear that the ultimate test is one of good arguable case. For that purpose, however, a court may perfectly properly apply the yardstick of “having the better of the argument” (the additional word “much” can now safely be taken as consigned to the outer darkness). That, overall, confers, in my opinion, a desirable degree of flexibility in the evaluation of the court: desirable, just because the standard is, for the purposes of the evidential analysis in each case, between proof on the balance of probabilities (which is not the test) and the mere raising of an issue (which is not the test either).”
“32. Para 43 of the judgment of the CJEU [in Bolagsupplysningen] has given rise to some debate: ‘43. It is also appropriate to point out that, in circumstances where it is not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain member state, so that the centre of interests of the legal person which is claiming to be the victim of an infringement of its personality rights cannot be identified, that person cannot benefit from the right to sue the alleged perpetrator of the infringement pursuant to article 7(2) of Regulation No 1215/2012 for the entirety of the compensation on the basis of the place where the damage occurred.’ 33. This paragraph is not as clear as it might have been and something may be lost in translation (it is not clear whether the language of the case was English). Messrs Eardley and Callus submitted that the effect of this passage is to intensify the standard of proof to the extent that the First Claimant must satisfy me that it is clear that its "centre of interests" is England and Wales. It is further submitted that para 43 is per curiam (at least according to the headnote in the Official Law Report) and therefore part of the ratio of the decision. I cannot accept these submissions. Para 43 is not part of the ratio of the CJEU's judgment, not least because it does not directly address the questions the court had to answer and in view of the opening wording ("it is also appropriate to point out …"). In his masterly opinion Advocate-General Bobek, who I am sure was writing in English, did not touch on the issue of the standard of proof. That omission is hardly surprising, because this is a matter of national law and may depend on when the issue is being decided. In the context of this jurisdictional challenge, the court is making an interim finding, in effect answering the question: have the Claimants proved enough to pass through the door? In the context of the final hearing, should it take place, "centre of interests" would have to be determined definitively, applying well-established standards of proof. All that the CJEU was saying was that in the event that the national court concluded that it could not identify the "centre of interests" because the evidence was unclear, article 7(2) of the RBR could not avail the claimant. The CJEU was not saying that in a case where the legal person's registered office was in country X but it was being contended that its "centre of interests" was not that country, it was incumbent on that legal person to show by clear evidence that its "centre of interests" was in fact in country X. … 36. The first question is the standard of proof I should be applying to the resolution of this jurisdictional challenge. I have already pointed out that the Claimants do not require from me affirmative findings of fact, proved to the probabilistic standard, in order to win. 37. The relevant principles are located in Four Seasons Hotel v Brownlie [2018 1 WLR 192, Goldman Sachs International v Novo Banco SA [2018 1 WLR 3683 and Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019 1 WLR 3514. I note in passing what Nicol J said about this issue at paras 43-44 of his judgment in Euroeco Fuels (Poland) Ltd v Szczecin & Swinoujscie Seaports Authority SA [2018 EMLR 21, but his reference to ‘a much better argument on the material available’ has been superseded. 38. It is incumbent on these Claimants to establish a ‘good arguable case’. That applies across the board notwithstanding that the Second Defendant raises points on publication and that there has been no real or substantial tort committed within the jurisdiction. Mr McCormick submitted that the burden of proof in connection with these two matters is on the Second Defendant, but I am content to adopt the analysis of Nicol J in Saïd, at para 67, to the effect that it remains on the Claimants and does not shift. I share Nicol J's doubts as to whether what might be called quasi-Jameel arguments are apt to be raised under the umbrella of a challenge to jurisdiction. 39. Goldman Sachs, as explained by the Court of Appeal in Kaefer, expounds a single test – that of ‘good arguable case’ – possessing three limbs. This is Lord Sumption's test (he was writing for the whole Supreme Court) in Goldman, at para 9: "(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it." 40. It is unnecessary for me to attempt a summary of Green LJ's detailed explanation [in Kaefer] of Lord Sumption. It is necessary to make the following brief points in response to the parties' submissions. First, ‘plausible evidential basis’ means more than ‘arguable’ and less than ‘probable’. It is a relative assessment of the position, on the basis of evidence which is perforce untested, comparing and evaluating the evidence adduced in writing by the Claimants and that adduced in riposte by the Defendants. The task of the court is to say where the better argument on the material available is to be found, not ‘much better argument’. If a plausible evidential basis does not exist, the inquiry ends there. Secondly, in performing this exercise it may be possible for the court reliably to take a view, ie, come to an interim conclusion, on the material available; and, if so, the court should do so. Thirdly, in the event that no such assessment can be made, because to make it would be unreliable (having regard to the nature and quality of the available evidence), the court will find that there is a good arguable case provided that it considers that there is a plausible albeit contested basis for that case. At this third stage the ‘better argument’ on the material available test continues to apply.”
“(1) At common law, a statement is defamatory of the claimant if, but only if, (a) it imputes conduct which would tend to lower the claimant in the estimation of right-thinking people generally, and (b) the imputation crosses the common law threshold of seriousness, which is that it '[substantially] affects in an adverse manner the attitude of other people towards him or has a tendency so to do’: Thornton v Telegraph Media Group Limited[2010] EWHC 1414 (QB) [2011] 1 WLR 1985 [96] (Tugendhat J). (2) 'Although the word 'affects' in this formulation might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence': Lachaux v Independent Print Limited[2015] EWHC 2242 (QB) [2016] QB 402 [15(5)].”
“[If] in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together.”
“Headlines commonly feature in bane and antidote arguments. Experience shows that there is quite often a disconnect between a headline and the body of an article. One reason for that may be that many headlines are written by editors or sub-editors, who aim for something eye-catching and may be less familiar with the nuance of the text than its author(s). A headline can create a libel, even if the text contains none: see Gatley on Libel and Slander 12th ed para 3.30, text to n 349. That is especially so, when one bears in mind the (reasonable) tendency of ordinary readers to give weight to that which is most prominent, and most negative. But there are cases in which the text neutralises what would otherwise be a libel in the headline - the headline being the poison, to which the body of the article provides the antidote.”
“(i) The First Article: ‘Investigation: Cindrigo sellers' links to Falcon Funds and Amaranth Mining’ 11. In their natural and ordinary meaning, the words complained of in the First Article meant and were understood to mean that the Claimants are part of a criminal network involved in so called ‘ecocrime’, by which members profit from the fraudulent marketing and sale of bogus or valueless supposedly ecologically ethical investments, and as part of this criminal activity both have received unlawful payments from associates of Johan Ulander, who is on trial for aggravated fraud.”
“The problem that this causes for the claimants, we say, is not the belief that they are somehow perpetrators of any scam, but the harm that gets caused, as we will come on to see, is the very fact that their shares were being traded. That causes them particular problems but not from the defamatory meaning of the words.”
“(ii) The Second Article: ‘Question marks over Pareto's new major customer EEW’ 12. In their natural and ordinary meaning, the words complained of in the Second Article meant and were understood to mean that the Claimants (the First Claimant himself and the Second Claimant through the First Claimant) have lied about marketing shares in Sweden, and sought to cover up that activity by instructing people to delete incriminating material from the internet, and instructing lawyers to suppress legitimate investigation and reporting about it.”
“… the words complained of in the Third Article meant and were understood to mean that the First Claimant is seeking to hide his misconduct by hiring lawyers to suppress any and all investigation or reporting about him.”
“The hypothetical reasonable reader is not naïve but he is not unduly suspicious … he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.”
“The third article, our submission, is not defamatory at common law at all. It does not link to the other articles. It is literally just an editorial by the First Defendant, who is the editor in chief, saying ‘We have been threatened with legal action, but we think this is really important and in the public interest.’”
“Since at least the start of 2019, shares in EEW Eco Energy World have been marketed to Swedish investors. However, the company now denies any involvement and documents are now being deleted from the internet. Read the second part of Realtid’s review.”
“… the Claimants are falsely marketing existing shares in the Second Claimant as if they were new shares issued as part of an imminent or intended public listing when they were not, and using falsely inflated valuations based upon the Second Claimant's own internal management accounts and forecasts dressed up to look independent; b. the Claimants are part of a network of shady businessmen and bankrupt businesses; and c. the Claimants have sought to dishonestly cover the tracks of their misconduct by deleting material from the internet and issuing false denials.”
“The Norwegian investment bank Pareto Securities has asked for information on the sale of shares in EEW to Swedish investors. In addition, Pareto states that the financing project with a value of 6 billion has not yet been formally approved.”
“… the words complained of in the Fifth Article meant and were understood to mean that there are strong grounds to suspect that the Claimants (the First Claimant himself and the Second Claimant through the First Claimant) have dishonestly not disclosed to Pareto Bank that they (the Claimants) have been marketing shares in the Second Claimant in Sweden.”
“Via their lawyer in London, EEW has denied on repeated occasions that any marketing of EEW shares is ongoing, to the company’s knowledge. Accordingly, we cannot confirm that Lars Nicholls’s statements are correct. It has not been possible to reach Lars Nicholls for a comment, despite repeated enquiries … EEW states that the company cannot provide any further details about the Pareto-project at this stage. Henry Wilson at the British PR agency Buchanan writes in a message to Realtid: “The preparations for the public listing is comprehensive in a transaction of this nature. We cannot provide an update on financial close (sic) at this stage but is also proceeding as planned during Covid-19 capital markets.”
“Eight years after the bankruptcy of Eco Suppliers, Swedbank and the National Exports Credit Guarantee Board are still waiting for money from Svante Kumlin. The dispute about a personal guarantee of SEK 20 million is ongoing in a Swedish court, and a final judgment is a long way away.”
“In their natural and ordinary meaning, the words complained of in the Sixth Article meant and were understood to mean that the First Claimant has, through a series of sham and otherwise dubious transactions, successfully hidden assets from liquidators and improperly withheld monies due to the Swedish Credit Agency, thereby defrauding creditors of companies in the First Claimant's now defunct EOS Group, leaving them out of pocket to the tune of tens of millions of Swedish Krone.”
“They call themselves corporate finance firms and financial consultants, and spread shares in unlisted companies such as EEW and Cindrigo. However, none of them are authorised by Finansinspektionen and the regulations designed to protect investors do not apply.”
“… the First Claimant has knowingly permitted the marketing and sale of shares in the Second Claimant through unlicensed Swedish brokers to Swedish investors, which is illegal in Sweden and poses a significant risk to investors; and that he has knowingly permitted the marketing of such shares on the false basis that the Second Claimant would soon be undertaking an IPO.”
“Svente Kumlin and EEW have explained via their lawyers that the article in Börsvärlden is untrue and that the information therefore is partly incorrect. According to the lawyers, Svante Kumlin has neither participated in any interview, nor does he have any knowledge about the article. According to the company, there is no agreement to disperse the EEW share to Swedish investors who have been approved by the company.”
“EEW and Pareto plan to raise 6 billion for a new solar energy company, but already one year ago, EEW had access to a large financing packing through a bond raised via a company formed especially for this purpose. What really happened subsequently? When Realtid started asking questions, information about the bond was deleted from EEW’s website and nobody was willing to answer questions.”
“… meant and were understood to mean that the Claimants have been involved in a series of shady deals intended to profit the First Claimant, including by artificially inflating the value of his assets, and they have sought to cover the tracks of that misconduct and frustrate the Defendants' investigation of it by deleting material from the internet.”
“(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. (2) For the purposes of this section, harm to the reputation of a body that trades for profit is not ‘serious harm’ unless it has caused or is likely to cause the body serious financial loss.”
“This provision … means that it is not enough to prove that a statement had a defamatory tendency. A claimant must prove as a matter of fact that their reputation suffered, or is likely to suffer, serious harm as a result of the publication complained of.”
“41. The second issue concerns ‘serious harm’ withins.1 of the Defamation Act 2013 . It is common ground that this has intensified the common law and requires proof of harm which is actually or likely to be serious rather than proof of substantial harm and a tendency to cause it. ‘Serious harm’ may be established by inference from such matters as the extent of the publication, the gravity of the allegation, and whether the statement was read by people who knew the claimant or will come to know him in the future. 42. These basic principles are well-established following the decision of the Supreme Court in Lachaux v Independent Print Ltd[2020] AC 612 . This was an authority on s 1(1) and not ons 1(2) of the 2013 Act , which provides: … In my view, all that sub-s.(2) does is to state that in the case of an entity trading for profit (eg, these corporate Claimants) there is no ‘serious harm’ unless the publication at issue has caused or is likely to cause ‘serious financial loss’: in other words, the ‘serious harm’ threshold is intensified.”
“16. Finally, if serious harm can be demonstrated only by reference to the inherent tendency of the words, it is difficult to see that any substantial change to the law of defamation has been achieved by what was evidently intended as a significant amendment. The main reason why harm which was less than “serious” had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.”
“96. My conclusion on the issue of publication is as follows. The Claimants have a good arguable case that there was limited publication of these four articles in England and Wales although the number of visitors to the Second Defendant's website who actually read as far as they would need to have done to receive mention of the Claimants was probably confined to a handful. The case on innuendo meaning in relation to the Second Claimant (see the first, third and fourth articles) has not been made out to the requisite standard. The case on publication against the Second Claimant is therefore limited to the second article. 97. Although the Claimants have got the better of the argument on the issue of publication – to the modest extent that I have set out – the fact remains that it was very limited, both in absolute and relative terms. This is highly relevant to the issue of ‘serious harm’.”
“46 …. [F]irst … ‘serious’ is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant's reputation … 47. Secondly, it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious has occurred or is likely to do so. However, a Court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence … 48. Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant, compare Ames v The Spamhouse Project[2015] EWHC 127 (QB) at [55]. This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence.”
“Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.”
“[107] … The Supreme Court [in Lachaux] held: (i) s.1 raised the threshold of seriousness above the tendency of defamatory words to cause damage to reputation; the application of the test of serious harm must be determined ‘by reference to actual facts about its impact and not just to the meaning of the words’: [12]-[13]. (ii) Reference to the situation where the statement ‘has caused’ serious harm is to the consequences of publication, and not the publication itself [14]: ‘It points to some historic harm which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated.’ (iii) Reference to the situation where the statement ‘is likely to cause’ serious harm was not the synonym of ‘liable to cause’ in the sense of the inherent tendency of defamatory words to cause damage to reputation: [14]. (iv) The conditions under s.1 must be established as facts [14] and ‘necessarily calls for an investigation of the actual impact of the statement’: [15]; a claimant must demonstrate as a fact that the harm caused by the publication complained of was serious [21]. (v) If serious harm could be demonstrated simply by the inherent tendency of statements to damage reputation, little substantive change would have been effected by the Act [16]: “The main reason why harm which was less than serious had given rise to liability before the Act was that damage to reputation was presumed from the words alone and might therefore be very different from any damage which could be established in fact. If, as Ms Page submits, the presumption still works in that way, then this anomaly has been carried through into the Act. Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law’s traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.” (vi) A claimant may produce evidence from publishees of the statement complained of about its impact on them, but his/her case does not necessarily fail for want of such evidence; inferences of fact as to the seriousness of harm done to reputation may be drawn from the evidence as a whole [21]. (vii) In Mr Lachaux’s case, the finding that serious harm had been proved was based on a combination of (a) the meaning of the words; (b) the situation of the claimant; (c) the circumstances of publication; and (d) the inherent probabilities. (viii) A judge’s task is to evaluate the material before him/her and arrive at a conclusion, recognising that this is an issue on which precision will rarely be possible [21]. (ix) The judge can consider the impact of the publication upon people who do not presently know the claimant but might get to know him/her in the future [25]. [108] At first instance in Lachaus Warby J expressed his conclusion on s.1 as follows: [65] In summary, my conclusion is that by section 1(1) of the 2013 Act Parliament intended to and did provide that a statement is not defamatory of a person unless it has caused or will probably cause serious harm to that person’s reputation, these being matters that must be proved by the claimant on the balance of probabilities. The court is not confined, when deciding this question, to considering only the defamatory meaning of the words and the harmful tendency of that meaning. It may have regard to all the relevant circumstances, including evidence of what has actually happened after publication. Serious harm may be proved by inference, but the evidence may or may not justify such an inference. [109] Finally, and consistently with Lord Sumption’s analysis in Lachaux there are three further relevant principles: “… the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs.” (ii) It is well-recognised that a claimant may struggle to identify, or to produce evidence from, all those to whom an article was published and in whose eyes the claimant’s reputation was damaged: Doyle v Smith [2019] EMLR 15 [122(iv)]; Sobrinhov Impresa Publishing SA [2016] EMLR 12[48]; Ames v Spamhaus[2015] 1 WLR 3409 [55]. (iii) Assessment of harm to reputation has never been just a ‘numbers game’: ‘one well-directed arrow [may] hit the bull’s eye of reputation’ and cause more damage than indiscriminate firing: King v Grundon[2012] EWHC 2719 (QB) [40] per Sharp J. Very serious harm to reputation can be caused by publication to a relatively small number of publishees: Sobrinho [47]; Dhir v Sadler[2018] EWHC 2935 (QB) [55(i)]; Monir v Wood[2018] EWHC 3525 (QB) [196].”
“We have provided evidence that there was readership here, readership important to the individual claimant, because they are known to him and do business with him, and that it has caused him prejudice. He does not have to prove any particular kind of loss. If there is going to be an issue about whether or not he, on the balance of probabilities, can establish serious harm, that will have to be held over for the substantive action.”
“Philip Hale and Pepa Tinkova [who work for a company in the EEW Group] are both based in England and Wales and have spoken with me regarding the articles and how this could impact on our business, and in particular its impact on future projects, any listing or fund raising. Both Pepa and Philip were contacted by the Guardian newspaper regarding the matter and in his discussion with me Philip raised concerns as to how damaging the articles published by Realtid were.”
“19. The publication by the Defendants of the words complained of in the Articles has caused serious harm to the Claimants, including serious financial harm to the Second Claimant. The Claimants will rely upon the following facts and matters in support of their plea of serious harm: a. The allegations against the Claimants are of such severity as to invite the inference that they have caused serious harm to their reputation. b. In any event and as set out below, Pareto has materially and very significantly changed its position in relation to its dealings with the Second Claimant as a result of the allegations, such change caused by the severity of the harm caused to the Claimants’ reputations by the publication of the words complained of; and c. Pareto Securities’ response to the publication of the words complained of has caused serious financial harm to the Second Claimant. 20. On24 April 2020 the Second Claimant entered into (through the signature of the First Claimant) a mandate agreement ("the Mandate Agreement") with Pareto Securities Pte Ltd ("Pareto"), a Singaporean entity in the Norwegian Pareto Banking Group of companies. The object of the Mandate Agreement was the raising of finance by the Second Claimant in the total sum of around EUR€570 million to fund the acquisitions and construction of solar power plants. The funds were to be raised by a combination of a share capital increase through a private investment or public offering of shares in the Second Claimant or its subsidiaries; and/or by bank debt or bond financing. By the Mandate Agreement Pareto agreed to provide, on an exclusive basis, financial advisory assistance in support of the said fundraising, for a success fee. 21. By a letter and email dated7 November 2020 Pareto, lawfully and in accordance with the Mandate Agreement, terminated the Mandate Agreement with immediate effect, stating as follows: “Reference is made to the mandate agreement entered into between E.E.W. Eco Energy World Plc. ("EEW") and Pareto Securities Pte Ltd ("Pareto") dated24th April 2020 (the "Mandate Agreement"). “As EEW is aware the Swedish online publication Realtid has published a series of articles raising questions regarding EEW and its majority owner Svante Kumlin's business activities. Pareto is not in a position where we can reject or investigate the various questions and allegations raised by Realtid. "However, with the uncertainty created by the media coverage Pareto is of the opinion that the Transactions (as defined in the Mandate Letter) will be difficult to complete as intended. We therefore believe it will be beneficial for EEW to work with other advisors. “On this basis and in accordance with section 5.2 of the Mandate Agreement Pareto has decided to terminate the Mandate Agreement with immediate effect.’” 22. The termination by Pareto of the Mandate Agreement has caused and is likely to further cause serious financial harm to the Second Claimant, including as follows: a. The termination by Pareto of the Mandate Agreement has brought to an immediate halt the Second Claimant's planned investment in plant and associated infrastructure with an estimated total capacity of 600 MW; b. Pareto's decision to pull out of the project marks the end of a 2-year period of project development and negotiation between the Second Claimant and Pareto, which association has cost the Second Claimant a considerable amount of time and money that now constitutes a lost investment. The Second Claimant is urgently seeking to value that lost investment, but estimates that in internal and external costs its loss is around EUR€150,000 over the 2-year period; c. Further the cessation of the relationship with Pareto has deprived the Second Claimant of profit-making opportunities arising from the intended relationship, including by way of example the anticipated sale of a solar project in Spain by which the Second Claimant was set to profit in the amount of around EUR€14.5 million . The Second Claimant is currently urgently seeking to evaluate and particularise its position since Pareto's termination of the Mandate Agreement, and to ascertain the value of the lost opportunities and/or the costs of the delay; and d. The abrupt cessation of the Second Claimant's said relationship with Pareto in the circumstances set out above has caused further serious harm to the Claimants' reputations in what is a relatively small industry.”
“… while the term ‘place where the harmful event occurred,’ in the meaning of article 5(3) [as noted earlier, the same language as Article 7(2) of the BRR], could cover both the place where the damage occurred and the place of the event giving rise to it, it could not be construed so extensively as to encompass any place where the adverse consequences of an event that had already caused actual damage elsewhere could be felt, and it did not include the place where the victim claimed to have suffered financial loss consequential on initial damage arising and suffered by him in another contracting state.”
“39. As this was the last of the EU cases to which we were referred, it is perhaps helpful to summarise the effect of the European cases to which reference has already been made in the CJEU's own words, describing the derogation (in article 5(3)) from the general rule (in article 2) that defendants are to be sued in the courts of their domicile: ‘10. As the court has held on several occasions – in Mines de Potasse d'Alsace[1978] QB 708 , 729, para. 11 [i.e. Bier]: Dumez France[1990] ECR I-49 , 79, para. 17, and Shevill v. Presses Alliance S.A. (Case C-68/93 )[1995] 2 AC 18 , 61, para. 19 – that rule of special jurisdiction, the choice of which is a matter for the plaintiff, is based on the existence of a particularly close connecting factor between the dispute and courts other than those of the state of the defendant's domicile which justifies the attribution of jurisdiction to those courts for reasons relating to the sound administration of justice and the efficacious conduct of proceedings. 11. In Mines de Potasse d'Alsace[1978] QB 708 , 7131, paras. 24 and 25, and Shevill[1995] 2 AC 18 , 61, para. 20, the court held that where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where that event results in damage are not identical, the expression ‘place where the harmful event occurred’ inarticle 5(3) of the Convention must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it, so that the defendant may be sued, at the option of the plaintiff, in the courts for either of those places. 12. In those two judgments, the court considered that the place of the event giving rise to the damage no less than the place where the damage occurred could constitute a significant connecting factor from the point of view of jurisdiction. It added that to decide in favour only of the place of the event giving rise to the damage would, in an appreciable number of cases, cause confusion between the heads of jurisdiction laid down by articles 2 and 5(3) of the Convention, so that the latter provision would, to that extent, lose its effectiveness. 13. The choice thus available to the plaintiff cannot however be extended beyond the particular circumstances which justify it: such an extension would negate the general principle laid down in the first paragraph ofarticle 2 of the Convention that the courts of the contracting state where the defendant is domiciled are to have jurisdiction and would lead to recognition, in cases other than those expressly indicated, of the jurisdiction of the courts for the plaintiff's domicile, which the Convention militates against by excluding, in the second paragraph of article 3, the application of national provisions which make such jurisdiction available for proceedings against defendants domiciled in the territory of a contracting state. 14. Whilst it is thus recognised that the term ‘place where the harmful event occurred’ within the meaning ofarticle 5(3) of the Convention may cover both the place where the damage occurred and the place of the event giving rise to it, that term cannot, however, be construed so extensively as to encompass any place where the adverse consequences of an event that has already caused actual damage elsewhere can be felt. 15. Consequently, that term cannot be construed as including the place where, as in the present case, the victim claims to have suffered financial damage consequential on initial damage arising and suffered by him in another contracting state.’”
“The CJEU has ruled on the correct approach to article 5(3). It has interpreted the phrase ‘the place where the harmful event occurred’ (a) to give the claimant the option of commencing proceedings in the courts of the place where the event occurred which gave rise to the damage or in the courts of the place where the damage occurred (if the event and damage were in different member states): Handelskwekerj GJ Bier BV v Mines de Potasse d' Alsace SA (Case C-21/76 )[1978] QB 708 , para 24; (b) as "the place where the event giving rise to the damage, and entailing tortious … liability, directly produced its harmful effect upon the person who is the immediate victim of the event" and thus not the place where an indirect victim, such as the parent company of the immediate victim, suffered financial loss as a result: Dumez France and Tracoba Sarl v Hessische Landesbank (Helaba) (above), para 20; and (c) consistently with (b) above, where a victim suffered harm in one member state and consequential financial loss in another, as referring to the place where the initial damage occurred: Marinari v Lloyd's Bank Plc (Case C-364/93 )[1996] QB 217 , paras 14 and 15. The focus in (b) and (c) is thus on where the direct and immediate damage occurred.”
“… as a prior condition it would have to be established that there has been publication in England and Wales and that the First Claimant has suffered ‘serious harm’ (including "serious financial loss") here, both being matters of domestic law: see the decision of the CJEU in Marinari v Lloyds Bank Plc[1996] QB 217 .”
“The position was further clarified in Marinari v Lloyds Bank[1996] QB 217 . There the CJEU held that the Shevill rule did not extend the special jurisdiction to each and every place where any adverse consequence of the libel could be felt. It did not, in particular, include a country where a claimant had suffered financial loss consequential to damage arising elsewhere. The special jurisdiction in defamation, in other words, was limited to places where direct reputational damage caused by reading the libel occurred.”
“So what Marinari decides is that, where you have what I am going to call direct damage as a result of a tort, so an act is committed in, say, for present purposes, Sweden, someone puts something online in Sweden, that is the act giving rise to the damage. The harm to reputation, which is under both section -- both claimants under s.1, the serious harm to reputation, which takes place in the minds of readers, because it is harm to reputation. Where the harm to reputation, we say, here is caused in the head of Petter Haavik in Singapore or is caused in the minds of the compliance of department in Oslo and Stockholm, so it is outside the jurisdiction, as a consequence there is a cancellation of a contract that then causes financial loss. … Therefore, under this first jurisdictional question, where what we are looking for is, has there been serious harm causing serious financial loss, caused by publication in England and Wales, apart from the inherent seriousness of the words in the small publication here, the entirety of the serious financial loss plea is predicated on a publication to Singapore or potentially compliance in Oslo and Stockholm - assuming for present purposes that it has caused serious financial loss here, as opposed to overseas - the direct damage has been caused where the readers were in Oslo, Stockholm or most likely Singapore. So, for the purposes of applying the rule in Marinari to this case, all of the serious financial loss has been caused by extraterritorial publication. There is no publication in England and Wales which is even pleaded, let alone evidenced, as having been caused by publication in England and Wales. On that basis alone, the second claimant’s claims against all defendants goes.”
“[The bank] also takes an overarching point of law, that CG cannot pursue these damages claims because they are claims for “reflective loss”