“The court is respectfully invited to set aside and/or discharge the Order, and then decline jurisdiction, on each or any of four bases: (a) The Claimant did not give full and frank disclosure in its (sic) application. (b) England and Wales is not clearly the most appropriate place in which to bring this action. (c) The claim against the First and/or Second Defendants lacks merit. (d) The claim against the First and/or Second Defendants is an abuse of process.”
“I believe, for the reasons set out below, that the Claimant did not provide the Court with the information which I am advised he was obliged to provide in his application for permission. I also believe that the claims against me and the Fourth Defendant are so weak that even though I accept that the Court has jurisdiction over those claims as pleaded, it should decline to exercise that jurisdiction. Whether the Claimant’s failure to provide the Court with all the information he was obliged to provide was linked to a realisation of the weakness of the claims against me and the Fourth Defendant I am unable to say, but I do believe that that failure had the effect of concealing that weakness from the Court.”
“This has involved the publication of false and defamatory allegations about him: 6.1 in individual articles on a website, the homepage of which was at the URL https://nottinghamforestfire.co.uk (“the Website”); 6.2 in videos published on the YouTube channel “Nottingham Forest Fire”, using the YouTube handle @NottinghamForestFire and publishing from the URL https://www.youtube.com/@NottinghamForestFire (“the YouTube Channel”); 6.3 in posts and reply posts on ‘X’ by the ‘X’ account ‘nottinghamforestfire’, using the ‘X’ handle @nottinghamff (“the X Account”); and 6.4 on mobile billboards (“the Mobile Billboards”) driven around Nottingham, UK, by promotional digital advertising vans (“Digivans”) on23 December 2023 (“the First Billboard”) and7 January 2024 (“the Second Billboard”).”
“97.2 The First Defendant paid Harris Media to devise and implement the Smear Campaign. This payment was made in two instalments. It was effected by the First Defendant directing and authorising the Second Defendant to pay the two instalments, which instalments the Second Defendant did in fact pay on the First Defendant’s behalf.”
“97.5.1. had a pre-existing relationship with the First Defendant; 97.5.2 acting with and/or through the Fourth Defendant, referred the First Defendant to Harris Media for the purposes of engaging and instructing Harris Media; 97.5.3 with and/or through the Fourth Defendant, earned a referral fee for having done so; 97.5.4 acted as a conduit for the payment of the second instalment by the Second Defendant to Harris Media for the devising and implementation of the Smear Campaign, by directing and/or authorising the Fourth Defendant to act as a conduit for that payment; 97.5.5 was copied into a significant amount of email correspondence between the First Defendant and Harris Media relating to the content and execution of the Smear Campaign over December 2023; 97.5.6 passed on instructions from the First Defendant to Harris Media; 97.5.7 generally referred new clients to Harris Media (on numerous occasions which the Claimant cannot presently identify pending full disclosure and/or the provision of further information); 97.5.8 had a pre-existing relationship with Mr Harris, on the basis of: 97.5.8.1 the Third Defendant’s and Harris Media’s involvement in the electoral campaign of Israeli Prime Minister Benjamin Netanyahu in 2015; 97.5.8.2 the Third Defendant’s and Harris Media’s involvement in a campaign run by an American organisation, “Shining City”, in 2014-2015; and 97.5.8.3 the Third Defendant’s and Harris Media’s involvement in a US-based organisation, “One Jerusalem”.” 97.5.8.1 the Third Defendant’s and Harris Media’s involvement in the electoral campaign of Israeli Prime Minister Benjamin Netanyahu in 2015; 97.5.8.2 the Third Defendant’s and Harris Media’s involvement in a campaign run by an American organisation, “Shining City”, in 2014-2015; and 97.5.8.3 the Third Defendant’s and Harris Media’s involvement in a US-based organisation, “One Jerusalem”.”
“97.6 In the premises, the Claimant will contend that on the basis of the facts and matters particularised above, it is clear (or clearly to be inferred) that the Third Defendant: 97.6.1 had a comprehensive understanding of the services provided by Harris Media, and of the means by which it was prepared to deliver those services; 97.6.2 referred the First Defendant to Harris Media in the knowledge that she intended to instruct Harris Media to devise and implement a smear campaign against the Claimant; 97.6.3 knew about the different features of the Smear Campaign, being the Website, the Website Articles, the YouTube Videos, the X Posts and the Mobile Billboards, and about the false and defamatory allegations about the Claimant which were published through those channels; and 97.6.4 was therefore knowingly and actively involved in the process of publishing the statements complained of by the Claimant.”
“In the premises, the Claimant will contend on the basis of the facts and matters particularised above, that it is clear (or clearly to be inferred) that the Fourth Defendant was knowingly and actively involved in the process of publishing the statements complained of by the Claimant.”
“102 The First, Second, Third and Fourth Defendants (or any two or more together) wrongfully and with intent to injure the Claimant and by unlawful means conspired and combined together to publish or cause to be published the false and defamatory allegations set out above. Paragraphs 5 to 15 and 97 above are repeated. 103 Pursuant to and in furtherance of this conspiracy, the First, Second, Third and Fourth Defendants published or caused to be published the said false and defamatory allegations, which had the foreseeable result of injuring or causing harm to the Claimant. 104 As a result of the matters set out above, the Claimant has been caused (and will continue to be caused) loss and damage, in the sum of at least£2,100,000 , as identified in Schedule 1 to these Particulars of Claim. The Claimant reserves the right to seek additional losses as and when they are identified during the course of these proceedings. 105 By reason of the aforesaid conspiracy and by reason of the unlawful means identified above (namely the acts of publication complained of above), the First, Second, Third and Fourth Defendants are jointly and severally liable to the Claimant in damages for conspiracy.”
“11. This is well established. For present purposes, it can be adequately distilled as follows. The court can only give permission to serve a claim on a defendant outside the jurisdiction if it meets three conditions. (1) The first is that the claim is of a kind that falls within one of the "gateways" set out inCPR PD 6B ("the Gateway Requirement"). On this question, the claimant has to satisfy the court that he has a good arguable case or, as it is sometimes put, the better of the argument. This connotes "more than a serious issue to be tried or a real prospect of success, but not as much as proof on the balance of probabilities": AstraZeneca UK Ltd v Albemarle International Corpn [2011] 1 All ER (Comm) 510, para 24 (Hamblen J). (2) Secondly, the claimant must satisfy the court that he has a real as opposed to a fanciful prospect of success on the claim ("the Merits Test"). One way this has been put is that the claimant has to show that any "reverse" summary judgment application would fail. (3) Thirdly, "The court will not give permission unless it is satisfied that England and Wales is the proper place in which to bring the claim":CPR r 6.37 (3) ("the Forum Test"). This is normally resolved by reference to the "Spiliada" principles as to the appropriate forum or (in the classic language) forum conveniens for the trial of the claim: see Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada)[1987] AC 460 , 478-480 (Lord Goff of Chieveley). The question is whether this jurisdiction is "clearly or distinctly" the most appropriate. The appropriate forum is the one in which the case "may most suitably be tried for the interests of all the parties and for the ends of justice". The first thing to consider is what is the "natural forum", namely the one "with which the action [has] the most real and substantial connection". If the court concludes that another forum is as suitable or more suitable than England, it will normally refuse permission. Again, the issue is not determined on the balance of probabilities; the claimant's task is to show that he has the better of the argument on the point. If he fails to do so, the application will be dismissed. 12. A claimant seeking permission to serve outside the jurisdiction always bears the legal burden of proof on all these issues. That is so whether the matter is being considered on an application by the claimant at the initial, without notice stage, or at the hearing of a subsequent application by the defendant to set aside an order permitting service outside the jurisdiction. But a defendant challenging such an order needs to identify some other forum which does have jurisdiction; and even the initial application requires there to be another candidate with the requisite jurisdiction: Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] Bus LR 2422, paras 96-97. Where the claimant's contention that the case is a proper one for service out is disputed by the defendant on a specific ground the defendant bears an evidential burden in relation to that ground: see AstraZeneca (above) at paras 33–39 (Hamblen J).”
“In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 ofPractice Direction 6B apply.”
“(2) A claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction. (9) A claim is made in tort where – (a) damage was sustained, or will be sustained, within the jurisdiction; (b) damage which has been or will be sustained results from an act committed, or likely to be committed, with the jurisdiction; or (c) the claim is governed by the law of England and Wales.”
“Where, as will often be the case where permission for service out of the jurisdiction is sought, there are particulars of claim, the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the cause of action asserted has a real prospect of success. Any particulars of claim or witness statement setting out details of the claim will be supported by a statement of truth. Save in cases where allegations of fact are demonstrably untrue or unsupportable, it is generally not appropriate for a defendant to dispute the facts alleged through evidence of its own. Doing so may well just show that there is a triable issue.”
“At common law, a cause of action for libel is made out by proof that the defendant was responsible for the publication to one or more third parties of a written statement that bore a defamatory meaning about the claimant. Statute has added a requirement that publication caused serious harm to the claimant's reputation or is likely to do so:Defamation Act 2013, s 1(1) . If this much is established, the burden shifts to the defendant to raise a defence. So defamation remains a relatively simple tort to prove …”
“111. A further feature of the tort of conspiracy, which is also found in criminal conspiracies, is that … it is not necessary to show that there is anything in the nature of an express agreement, whether formal or informal. It is sufficient if two or more persons combine with a common intention, or, in other words, that they deliberately combine, albeit tacitly, to achieve a common end. Thus it is not necessary for the conspirators all to join the conspiracy at the same time, but … the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of … 112. In most cases it will be necessary to scrutinise the acts relied upon in order to see what inferences can be drawn as to the existence or otherwise of the alleged conspiracy or combination. It will be the rare case in which there will be evidence of the agreement itself …”
“29. Allegations of conspiracy made in a civil claim are serious … As such, there are stricter rules as to the pleading requirements of what might be thought to be more routine allegations. 30. I take the following principles from Ivy Technology v Martin[2019] EWHC 2510 (Comm) per Andrew Henshaw QC: [12] Conspiracy to injure must be pleaded to a high standard, particularly where the allegations include dishonesty: i) Allegations of conspiracy to injure “must be clearly pleaded and clearly proved by convincing evidence” (Jarman & Platt Ltd v I Barget Ltd[1977] FSR 260 , 267). ii) The more serious the allegations made, the more important it is for the case to be set out clearly and with adequate particularity Secretary of State for Trade and Industry v Swan[2003] EWHC 1780 (Ch) [22]-[24];CPR PD 16 §8.2 in respect of the obligations on a party pleading dishonesty; Mullarkey v Broad[2007] EWHC 3400 (Ch) ;[2008] 1 BCLC 638 [40]-[47] on the burden and standard of proof for such claims and reiterating the well-established principle that an allegation of dishonesty must be pleaded clearly and with particularity (citing Belmont FinanceCorp v Williams Furniture[1979] Ch 250 , 268). iii) Unlawful means conspiracy is a grave allegation, which ought not to be lightly made, and like fraud must be clearly pleaded and requires a high standard of proof: CEF Holdings v Mundey[2012] EWHC 1534 (QB) ;[2012] IRLR 912 [74]. iv) Where a conspiracy claim alleges dishonesty, then “all the strictures that apply to pleading fraud” are directly engaged, i.e. it is necessary to plead all the specific facts and circumstances supporting the inference of dishonesty by the defendants: ED&FMan Sugar v T&L Sugars[2016] EWHC 272 (Comm) . v) As to the substantive elements of the tort: “To establish liability for assisting another person in the commission of a tort [common design], it is necessary to show that the defendant (i) acted in a way which furthered the commission of the tort by the other person and (ii) did so in pursuance of a common design to do, or secure the doing of, the acts which constituted the tort… The elements of this tort [conspiracy] are a combination or agreement between the defendant and another person pursuant to which unlawful action is taken which causes loss or damage to the claimant and is intended or expected by the defendant to do so (whether or not this was the defendant’s predominant purpose).” (MarathonAsset Management LLP v Seddon[2017] IRLR 503 [132] and [135]). 31. As to the requirements of pleading fraud or other discreditable conduct, the approach was set out in Portland Stone Firms Limited v Barclays Bank[2018] EWHC 2341 (QB) per Stuart-Smith J: [25] Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & HoldingCorp v Privalov[2010] EWHC 3199 (Comm) [1438]-[1439] per Andrew Smith J: ‘It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini -v- Skillglass Ltd [2007] EWCA Civ261 [73]. This principle reflects the court’s conventionalperception that it is generally not likely that people will engagein such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel -v- Higgins [2009] EWCA790 [50]. The question remains one of the balance of probability,although typically, as Ungoed-Thomas J put it in In re Dellow’s Will Trusts[1964] 1 WLR 415 , 455 (cited by Lord Nichollsin In re H[1996] AC 563 , 586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”… …Thus in the Jafari-Fini [49], Carnwath LJ recognised anobvious qualification to the application of the principle, and said,“Unless it is dealing with known fraudsters, the court should startfrom a strong presumption that the innocent explanation is morelikely to be correct.”’ [26] This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar -v- Saleem[2018] EWHC 1729 (QB) ; Elite Property Holdings Ltd -v- Barclays Bank[2017] EWHC 2030 (QB) ; Three Rivers DC -v- The Governor and Company of Barclays of England (No.3)[2003] 2 AC 1 [186] per Lord Millett... [27] One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr -v- British Polythene Industries Plc[2012] EWHC 3346 (Comm) [29]ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation -v- AU Optronics Corporation[2012] EWHC 731 (Ch) [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant”.” [12] Conspiracy to injure must be pleaded to a high standard, particularly where the allegations include dishonesty: i) Allegations of conspiracy to injure “must be clearly pleaded and clearly proved by convincing evidence” (Jarman & Platt Ltd v I Barget Ltd[1977] FSR 260 , 267). ii) The more serious the allegations made, the more important it is for the case to be set out clearly and with adequate particularity Secretary of State for Trade and Industry v Swan[2003] EWHC 1780 (Ch) [22]-[24];CPR PD 16 §8.2 in respect of the obligations on a party pleading dishonesty; Mullarkey v Broad[2007] EWHC 3400 (Ch) ;[2008] 1 BCLC 638 [40]-[47] on the burden and standard of proof for such claims and reiterating the well-established principle that an allegation of dishonesty must be pleaded clearly and with particularity (citing Belmont FinanceCorp v Williams Furniture[1979] Ch 250 , 268). iii) Unlawful means conspiracy is a grave allegation, which ought not to be lightly made, and like fraud must be clearly pleaded and requires a high standard of proof: CEF Holdings v Mundey[2012] EWHC 1534 (QB) ;[2012] IRLR 912 [74]. iv) Where a conspiracy claim alleges dishonesty, then “all the strictures that apply to pleading fraud” are directly engaged, i.e. it is necessary to plead all the specific facts and circumstances supporting the inference of dishonesty by the defendants: ED&FMan Sugar v T&L Sugars[2016] EWHC 272 (Comm) . v) As to the substantive elements of the tort: “To establish liability for assisting another person in the commission of a tort [common design], it is necessary to show that the defendant (i) acted in a way which furthered the commission of the tort by the other person and (ii) did so in pursuance of a common design to do, or secure the doing of, the acts which constituted the tort… The elements of this tort [conspiracy] are a combination or agreement between the defendant and another person pursuant to which unlawful action is taken which causes loss or damage to the claimant and is intended or expected by the defendant to do so (whether or not this was the defendant’s predominant purpose).” (MarathonAsset Management LLP v Seddon[2017] IRLR 503 [132] and [135]). 31. As to the requirements of pleading fraud or other discreditable conduct, the approach was set out in Portland Stone Firms Limited v Barclays Bank[2018] EWHC 2341 (QB) per Stuart-Smith J: [25] Where, as here, a Claimant wishes to amend to plead fraud and the application is opposed, it is material to bear in mind the approach that the Court routinely takes to proving fraud in civil litigation. A sufficient summary for present purposes is provided by Fiona Trust & HoldingCorp v Privalov[2010] EWHC 3199 (Comm) [1438]-[1439] per Andrew Smith J: ‘It is well established that “cogent evidence is required to justify a finding of fraud or other discreditable conduct”: per Moore-Bick LJ in Jafari-Fini -v- Skillglass Ltd [2007] EWCA Civ261 [73]. This principle reflects the court’s conventionalperception that it is generally not likely that people will engagein such conduct: “where a claimant seeks to prove a case of dishonesty, its inherent improbability means that, even on the civil burden of proof, the evidence needed to prove it must be all the stronger”, per Rix LJ in Markel -v- Higgins [2009] EWCA790 [50]. The question remains one of the balance of probability,although typically, as Ungoed-Thomas J put it in In re Dellow’s Will Trusts[1964] 1 WLR 415 , 455 (cited by Lord Nichollsin In re H[1996] AC 563 , 586H), “The more serious the allegation the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”… …Thus in the Jafari-Fini [49], Carnwath LJ recognised anobvious qualification to the application of the principle, and said,“Unless it is dealing with known fraudsters, the court should startfrom a strong presumption that the innocent explanation is morelikely to be correct.”’ [26] This summary is consistent with many other decisions of high authority which establish that pleadings of fraud should be subjected to close scrutiny and that it is not possible to infer dishonesty from facts that are equally consistent with honesty: see, for example, Mukhtar -v- Saleem[2018] EWHC 1729 (QB) ; Elite Property Holdings Ltd -v- Barclays Bank[2017] EWHC 2030 (QB) ; Three Rivers DC -v- The Governor and Company of Barclays of England (No.3)[2003] 2 AC 1 [186] per Lord Millett... [27] One of the features of claims involving fraud or deceit is the prospect that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy. This has routinely been addressed in cases involving allegations that a defendant has engaged in anti-competitive arrangements. In such cases, the Court adopts what is called a generous approach to pleadings. The approach was summarised by Flaux J in Bord Na Mona Horticultural Ltd & Anr -v- British Polythene Industries Plc[2012] EWHC 3346 (Comm) [29]ff. Flaux J set out the principles in play as described by Sales J in Nokia Corporation -v- AU Optronics Corporation[2012] EWHC 731 (Ch) [62]-[67], which included the existence of a tension between (a) the impulse to ensure that claims are fully and clearly pleaded, and (b) the impulse to ensure that justice is done and a claimant is not prevented by overly strict and demanding rules of pleading from introducing a claim which may prove to be properly made out at trial but may be shut out by the law of limitation if the claimant is to be forced to wait until he has full particulars before launching a claim. Sales J indicated that this tension was to be resolved by “allowing a measure of generosity in favour of a claimant”.”
“The Court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim.”
“Action against a person not domiciled in the UK or a Member State etc (1) This section applies to an action for defamation against a person who is not domiciled — (a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention. (2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement. (3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.” (1) This section applies to an action for defamation against a person who is not domiciled — (a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention. (2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement. (3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.”
“19. In some ways this language resembles that of the common law test of forum conveniens, but it is plainly intended to establish a different approach. At a minimum, it modifies the common law position in two respects: (a) by requiring the court to answer the question of which jurisdiction is "clearly the most appropriate" by considering "all the places in which the statement complained of has been published" and (b) by treating any statement that conveys substantially the same imputation as if it were a "statement complained of". 20. Section 9 has been considered in a handful of cases to date: Ahuja v Politika Novine I Magazini D.O.O[2015] EWHC 3380 (QB) ,[2016] 1 WLR 1414 (Sir Michael Tugendhat); Huda v Wells[2017] EWHC 2553 (QB) , [2018] EMLR 7 (Nicklin J); Wright v Ver[2019] EWHC 2094 (QB) (Nicklin J), affirmed[2020] EWCA Civ 673 ,[2020] 1 WLR 3913 ; Al Sadik v Al Sadik[2019] EWHC 2717 (QB) , [2020] EMLR 7 (Julian Knowles J); and Kim v Lee[2020] EWHC 2162 (QB) (Julian Knowles J). 21. Some uncontroversial propositions emerge from these cases: (1) The claimant bears the burden of satisfying the court that England is the most appropriate place in which to bring the claim: Wright v Ver (CA) [60]. (2) When determining that question, the court must consider all the "places", which in this context means jurisdictions, in which there has been publication of "the statement complained of", giving that term the expanded meaning identified in s 9(3): Ahuja [31], [41]; Wright v Ver (CA) [61]. (3) Relevant factors for consideration will include the best evidence available to show what all those places are; the number of times the statement has been published in each jurisdiction; and the amount of damage to the claimant's reputation in England and Wales compared with elsewhere: Ahuja [31]; Wright v Ver (CA) [61-63]. (4) Other relevant factors are likely to include the availability of fair judicial processes in the other jurisdictions in which publication occurred, the available remedies from the courts of the other jurisdictions, the costs of pursuing proceedings in each possible jurisdiction, other factors that might impact on access to justice - for example language barriers - and the location of likely witnesses, as well as the relative expense of suing in different jurisdictions; Ahuja [31]; Wright v Ver (CA) [64-65]. (5) This list of factors is non-exhaustive because the relevant multifactorial question to be answered by the court is whether it can be shown that England and Wales is clearly the most appropriate jurisdiction in which to bring the claim. This will be fact-specific, but it is likely to require the court to make the best assessment that it can on the evidence whether any competing jurisdiction is an appropriate place to bring the claim: Wright v Ver (CA) [65]. 60. … the standard of proof which a claimant must meet on an issue under s 9 is the well-established standard for forum conveniens disputes, of a good arguable case. That is because, as I have explained, s 9 should not be treated as a fresh stand-alone provision of unique character but rather as a tailored modification of the established regime, and it does not purport to alter the standard of proof. 61. I see no good reason for adopting any rigid rule about the nature of the evidence that either party will be required to adduce on a contest under s 9. It is sufficient to say that the court must be satisfied of the matters specified in the section, that the legal burden of doing so rests on the claimant, and that the claimant has a duty of full and frank disclosure at the without notice stage. Whether the evidence adduced in a given case is enough to meet these requirements will depend on the circumstances of the case. This will ordinarily be a matter for the assessment of the Judge, and not apt for review on an appeal…”
“i) The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court's attention to significant factual, legal and procedural aspects of the case; ii) It is a high duty and of the first importance to ensure the integrity of the court's process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even-handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make; iii) Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents; iv) An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on; v) Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction; vi) Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect; vii) A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits; viii) In general terms it is inappropriate to seek to set aside a freezing order for non-disclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself; ix) If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived; x) Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court's starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged; xi) The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties; xii) The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts; xiii) The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure.”
“The evidence and argument must be presented and summarised in a way which, taken as a whole, is not misleading or unfairly one-sided. In a complex case with a large volume of documents, it is not enough if disclosure is made in some part of the material, even if amongst that which the judge is invited to read, if that aspect of the evidence and its significance is obscured by an unfair summary or presentation of the case. The task of the judge on a without notice application in complex cases such as the present is not an easy one. He or she is often under time constraints which render it impossible to read all the documentary evidence on which the application is based, or to absorb all the nuances of what is read in advance, without the signposting which is contained in the main affidavit and skeleton argument. It is essential to the efficient administration of justice that the judge can rely on having been given a full and fair summary of the available evidence and competing considerations which are relevant to the decision.”
“… I sought in National Bank Trust v Yurov[2016] EWHC 1913 (Comm) at [14] and [15] to encourage a degree of restraint and a sense of proportion on the part of those seeking to set aside without notice orders on this ground, but it appears that the message has not got through. In this case we have been prepared to separate the wheat from the chaff, but I would suggest a different approach for the future. In future, if the court is presented with a long shopping list of alleged failures of disclosure, with no attempt made to identify the relatively few points which really matter, it should simply decline to consider the issue at all.” (2) By Coulson LJ at [127]-[128]: “It is almost always the position that, no matter how big the case or how complex the underlying issues, a defendant's case that the claimant failed to make full and frank disclosure at the ex parte hearing will stand or fall on no more than a handful of alleged failures. That is because, if the 'big ticket' allegations of failure are not established, or are established but found to be immaterial, then the less significant failures will not bridge the gap. It is the law of diminishing returns… Accordingly, those preparing this sort of attack in the future should ensure that they concentrate their efforts on alleged failures of disclosure which are clear-cut and obviously important. Quality not quantity should be the watchword. The failure to follow that course … means that there is a real risk that the best points become buried in an avalanche of trivia …”
“To participate in a publication in such a way as to be liable in accordance with the law of defamation is not, I should emphasise, to be equated with being a source of the information contained within the relevant document. There are various acts that can give rise to legal responsibility, for example, encouraging the primary author, supplying him with information intending or knowing that it will be re-published, or, if one is in a position to do so, instructing or authorising him to publish it.”
“Mere assistance, even knowing assistance, does not suffice to make the ‘secondary’ party jointly liable as a joint tortfeasor with the primary party. What he does must go further. He must have conspired with the primary party or procured or induced his commission of the tort (my first category); or he must have joined in the common design pursuant to which the tort was committed (my third category).”
“21 At the end of the game with the final score a draw at 2-2, [the Claimant] returned again to verbally assault [my brother], telling him: “You are finished,” and “I will destroy you … I will eliminate you from Greece and from football.” 22 Coming off the pitch my brother was approached by Vassilis Roubetis, [the Claimant’s] right hand man, and an organised criminal (now deceased) who had a role with Olympiacos’s and [the Claimant’s] team. Roubetis told him the following: ‘I have orders from Marinakis to make you disappear; you won't have a place to hide; I'll blow you up in the Porsche you have outside with the 7s (meaning the license plate number of my brother's car which is 7777) I will burn your office, you can’t fathom what we can do to you, we'll make you and your family disappear. You'll be on your knees begging for your life.’”
“It is ridiculous to argue that the smear campaign which targeted NFFC fans (including through the deliberate use of digital vans driving around Nottingham) would have any impact on the opinion of the Greek public. It is clear that carrying out any kind of media campaign in England, would only have a significant effect on the minds of the English public, and specifically in this case, the people of Nottingham and supporters of NFFC.”
“I know who Mr Roubetis was, but to my knowledge Mr Marinakis ever had a professional relationship with him. Had he been a “right hand man”
“The same is true of the match fixing allegations. The series of events did not take place. It seems that there were only two people involved in this alleged conversation, one being the Claimant and the other being the First Defendant’s brother (although he gives no evidence about it himself) … Likewise, the suggestion that Vassilis Roubetis was the Claimant’s “right hand man” is also untrue. I am instructed that the Claimant has never had any form of business dealings with this individual and this has also been confirmed in evidence before this Court by a close business associate of the Claimant.”
“This fee [i.e. of US$5,000 ] was due from Harris Media and so it was administratively convenient for the instalment to be paid via the Fourth Defendant (so that it could deduct that fee)”
“It can be seen from the attachments that I was copied into some of the email correspondence, but not all of it. I do not know why I was/was not copied into any particular email, but my experience as an introducer is that the parties I introduce will often include me in group emails going forward. I believe that this may initially be done as some sort of courtesy (or perhaps to ensure that each side is aware that I can see how the other is behaving given that I introduced them) but sometimes this continues long after the introduction.”
“Hi Brian Irini prefers that we stick to the current budget and at this point only do the plan banner fly over. Thanks Ari”
“I confirm that your role in the relationship between Harris Media LLC and [A]mani Swiss (Cyprus) Limited was simply to have introduced Irina Karipidis to me and my company and no more. To my knowledge you were not party to decisions or services provided by Harris Media LLC to Irina Karpidis and Amani Swiss (Cyprus) Limited nor did you in any way direct provision of and requirement for those services on behalf of Irina Karpidis and Amani Swiss (Cyprus) Limited. I also confirm that I am aware of one email received from you in which you request that Harris Media LLC keep within the budget requested by Irina Karpidis and Amani Swiss (Cyprus) Limited. This request was clearly made and understood to be on behalf of Irina Karpidis and Amani Swiss (Cyprus) Limited.”
“(1) A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher. (2) In this section “author”, “editor” and “publisher” have the same meaning as insection 1 of the Defamation Act 1996 .”